SZLWE v Minister for Immigration - [2008] FMCA 780

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLWE v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 780

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether Applicant's claims raise the Convention nexus of imputed political opinion – whether claims properly considered by the Tribunal.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474

SZBEL v Minister for Immigration & Multicultural &Indigenous Affairs (2006) 231 ALR 600
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Abebe v Commonwealth (1999) 197 CLR 510

Applicant:

SZLWE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 30 of 2008

Judgment of:

Orchiston FM

Hearing date:

23 April 2008

Date of Last Submission:

23 April 2008

Delivered at:

Sydney

Delivered on:

13 June 2008

REPRESENTATION

Counsel for the Applicant:

Mr D. Jenkins

Solicitors for the Applicant:

Kessels Goddard + Ajuria

Counsel for the Respondent:

Ms S. Sirtes

Solicitors for the Respondent:

DLA Phillips Fox

ORDERS

The application filed on 8 January 2008 and the amended application filed on 25 March 2008 are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,700 payable within six (6) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 30 of 2008

SZLWE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 20 December 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

The applicant was born on 10 May 1968. He claims to be a national of Lebanon, of Lebanese ethnicity, and of Catholic faith.
The applicant arrived in Australia on 9 March 2007 on a Lebanese passport issued in his own name.
The applicant lodged an application for a protection visa on 6 June 2007 on the basis that the applicant was beaten and harassed in Lebanon due to civil unrest and because of his desertion from the Lebanese forces.
On 27 August 2007 the delegate refused to grant the applicant’s protection visa on the basis that he was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
On 17 September 2007 the applicant applied to the Tribunal for review of the delegate’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceedings

On 10 October 2007, the Tribunal sent a letter to the applicant inviting him to appear before it on 6 December 2007 to give oral evidence and present arguments.
The applicant attended a hearing before the Tribunal on 6 December 2007.

The Tribunal’s findings and reasons (Court Book (CB) 103–104)

On 20 December 2007, the Tribunal handed down its decision affirming the decision of the delegate to not to grant a protection visa to the applicant.
I accept that the first respondent accurately summarised the Tribunal's findings and reasons as follows:
·the Tribunal accepted that Lebanon was a relatively unsafe environment and that many Lebanese citizens have been involved (unwittingly or otherwise) in violent incidents in respect of which Lebanese authorities may have failed to provide adequate protection, however, on that basis the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason (CB 103.7)
·the Tribunal noted that in describing his experiences to the Tribunal the applicant did not allude to a Convention nexus, even when asked whether his fear was related to one of the 5 Convention grounds (which the Tribunal set out for the applicant) (CB 103.8)
·the Tribunal was not satisfied, based on the evidence before it, that the applicant was persecuted in the past for reasons of his political opinion or imputed political opinion, religion, membership of a particular social group, or any other reason. The Tribunal did not accept that there was a real chance of Convention based persecution on his return (CB 103.9).
For these reasons, the Tribunal found there was not a real chance the applicant would suffer serious harm from his stated or perceived fear of violence in Lebanon. The Tribunal was therefore not satisfied that the applicant had a well-founded fear of persecution if he were to return to Lebanon for reasons of having deserted from the Lebanese forces, being a member of a particular social group, or for any other Convention reason, now or in the foreseeable future.

The proceedings before this Court

The applicant filed the application in this Court on 8 January 2008 setting out 2 grounds of review of the Tribunal’s decision. The applicant filed an amended application on 25 March 2008 setting out 2 grounds of review.
Mr Jenkins of counsel appeared in this Court on behalf of the applicant on 23 April 2008. Ms Sirtes of counsel appeared for the first respondent.

Grounds of application

The two grounds of the application are:
(1)The Tribunal failed to consider my well founded fear of persecution by reason of this desertion from the Lebanese forces.
(2)The Tribunal erred in law in understanding my claim and failed to assess my fear of harm which is attributed to one of the five convention reasons i.e. a particular social group.

Grounds 1 and 2 of the application.

These grounds were not pressed.

Grounds of amended application

The two grounds of the amended application are:
(1)The Tribunal committed jurisdictional error by failing to consider the Applicant’s claim for refugee status.
(2)The Tribunal committed jurisdictional error when it misapplied or misunderstood the definition of a refugee in the Refugee Convention.
Particulars
Ground 1
The Tribunal misunderstood the Applicant's claim to be that of an innocent civilian caught up in unfortunate circumstances. In his application for a Protection visa [CB 19] and during the Tribunal hearing, on 6 December 2007, the Applicant stated he had been in the Lebanese Forces between 1984 and 1991. The Applicant further stated during the hearing that when he applied for a passport in 2006, he was subject to questioning by Lebanese Security Forces about his alleged involvement with American forces in Iraq. He claimed that he feared he would be “framed” if he returned to Lebanon.
The Tribunal failed to understand the Applicant's claim that he was a former member of the Lebanese Forces and had come under the scrutiny of the Lebanese Security Forces. Instead, the Tribunal stated in its decision that the Applicant had served in the Lebanese Armed Forces [CB 102], not the Lebanese Forces (a militia) as he claimed. The Tribunal therefore failed to consider whether the Applicant might be persecuted by reason of membership of a particular social group, being former members of the Lebanese Forces, or because of an imputed political opinion arising from his past associations, actual or imputed.
Ground 2
The Applicant's claims did raise issues for consideration under the Refugee Convention. The Tribunal misunderstood or misapplied the definition of a refugee when it found [at CB 103] that the Applicant did not allude to any Convention nexus when he clearly did.

Ground 1 of amended application.

This ground was not pressed.

Ground 2 of amended application.

The applicant claims that the Tribunal misunderstood or misapplied the definition of a refugee when it found (CB 103) that:
… the applicant did not allude to any Convention nexus.
The applicant submits that:
Apparent on the face of the material before the Tribunal was a claim of persecution for imputed political opinion that was not considered by the Tribunal.
It is not disputed that at no time, either in his protection visa application or at the Tribunal hearing, did the applicant himself specifically refer to any political opinion that he held or was thought to have held. I accept the submission by the first respondent that:
There is nothing in the applicant’s claims (either in the protection visa application or oral evidence to the Tribunal), in relation to questioning surrounding his passport, which in any way alludes to the political opinion he was thought to have held.
The applicant argues, however, that the claims made by him in his protection visa application and at the Tribunal hearing concerning harassment in processing his passport application and questions asked of him when applying for that passport concerning whether he was involved with the United States in Iraq and Iran, raise the Refugee Convention nexus of imputed political opinion, which the Tribunal did not address in its Findings and Reasons:
Now, it is the submission of the applicant … that both in the protection visa application … and also in the Tribunal's appearance - the transcript at the hearing, the applicant raises clearly that he fears persecution because the authorities have harassed him, they have stopped the processes for his passport at one time, they have made allegations against him, and that those allegations would give rise to the convention nexus, clearly, that the authorities have imputed to him some political opinion by reason of the fact that he - that he has been seen to, working security, worked with Americans, and worked in Iran or Iraq. (Court transcript 23/4/08, p 23).
In considering this submission, it is necessary to begin with the reasons given by the delegate in refusing to grant the applicant a protection visa application. The delegate stated:
Understandably the applicant wishes to remain in Australia. However the applicant's claims and circumstances are not Convention related (CB 54).
The applicant was therefore on notice that the dispositive issue for the delegate, and therefore the determinative issue arising in relation to the Tribunal’s review of the delegate’s decision, was the lack of a Convention nexus in the application. As observed by the High Court in SZBEL v Minister for Immigration & Multicultural &Indigenous Affairs (2006) 231 ALR 600 at [35]:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is well settled that although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at 288), the relevant facts of an individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the decision-maker to establish the relevant facts. It was for the applicant to establish the necessary Convention nexus, be it in regard to real or imputed political opinion, to the satisfaction of the Tribunal.
In so doing, the Tribunal was not required to make the applicant’s case for him: SZBEL at [40]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.
As also observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:
It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
At the hearing, the Tribunal explained to the applicant at the outset that it needed to be satisfied in relation to the Convention and set out for him the five Convention bases, including political opinion (Tribunal transcript pp 2.34 to 2.45).
The Tribunal then gave the applicant various opportunities to explain to it what the Convention nexus was in his case (Tribunal transcript pp 4.31, 4.39, 5.18, 12.32 to 12.41, 13.23, 13.35, 13.45 to 14.01 and 14.10 to 14.13). I accept the submission by the first respondent that:
At no stage did the applicant put forward any evidence as to his actual or imputed political opinion.
In its determination, the Tribunal explicitly undertook an analysis of whether it was satisfied that the applicant’s claims had a Convention nexus:
In describing his experiences to the Tribunal and in his written statement of claims, the applicant did not allude to any Convention nexus, even when the Tribunal asked the applicant directly whether his fear of harm could be attributed to any of the 5 Convention reasons. Rather, the applicant saw himself as the unwitting victim or innocent bystander caught up in a difficult and violent environment arising from the outbreak of civil war in Lebanon as well as conflicts and skirmishes between different rival groups (CB 103).
The applicant concedes that:
there was no direct and explicit claim of persecution for holding a political opinion or an explicit claim that a political opinion being imputed to the Applicant
but argues that:
A claim ‘not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal’ (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58])
and that:
The Applicant’s evidence indicated that a political opinion had been imputed to the Applicant by the security office by reason of either:
a) his travel to Iran; or
b) his working with the Americans;
or both, and that the security office had acted the way they had because of that imputed political opinion.
I consider that the Tribunal directly considered this matter. The Tribunal accepted that, during the process of applying for a passport, the applicant was questioned by the security office about whether he had links with America in Iran or Iraq. The Tribunal noted however, that:
After some further delays, he was eventually issued with a passport on 22 January 2006 (CB 103).
The applicant arrived in Australia on 9 March 2007. I accept the submission of the first respondent that:
there's no claim that anything happened in the one year and three months between the time [the applicant] got his passport and the time he left [Lebanon] (Court transcript 23/4/08, 38).
At the hearing, the Tribunal directly asked the applicant whether he was politically active, to which he replied:
… I wasn't involved in any protest against the government, no (Tribunal transcript p 13.23 13.34).
The applicant submits that:
The Applicant told the Tribunal that if he was to return to Lebanon, he was concerned that following his contact with the security office and the allegations they had “invented”, he may be framed for alleged contact with the Americans or for some other reason (Tribunal transcript pp 11.41-11.47; 13.41-14.7).
The Tribunal noted that the applicant's claim to fear that he might be "framed" if he returned to Lebanon (CB 103).
In its Findings and Reasons, the Tribunal specifically referred to the Convention nexus of political opinion:
Based on the evidence, the Tribunal is not satisfied that the applicant was persecuted in the past for reasons of his political opinion, imputed or otherwise, religion, membership of a particular social group or any other Convention reason. Nor does the Tribunal accept that there exists a real chance that he will face persecution for a Convention reason on his return to Lebanon (CB 103).
Overall I am satisfied that a fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the nature of the applicant's claims; identified the determinative issue in terms of whether the application established a Convention nexus, including political opinion; explored those claims with him and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing.
I consider that its findings were open to it on the evidence and material before it; that it provided well-articulated reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, Ground 2 of the amended application is rejected.

Conclusion

The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application filed on 8 January 2008 and the amended application filed on 25 March 2008 are dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Orchiston FM

Associate: Duncan Maconachie

Date: 13 June 2008