SZMKK v Minister for Immigration
[2008] FMCA 1416
•1 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMKK v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1416 |
| MIGRATION – RRT decision – Lebanese applicant fearing persecution from criminals with governmental connections – Tribunal found no Convention nexus to any denial of State protection – findings open on the evidence before the Tribunal – no failure to apply the ‘real chance’ test – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.91R(3) |
| Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 Saliba v Minister for Immigration & Ethnic Affairs [1998] FCA 1461 SZBYR& Anor v Minister for Immigration & Citizenship [2007] HCA 26 SZJGV v Minister for Immigration& Citizenship [2008] FCAFC 105 SZLTF v Minister for Immigration [2008] FMCA 1177 |
| Applicant: | SZMKK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1549 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 1 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 1 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Mr G Kennett |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,600.
These orders shall not take effect until 15 October 2008
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1549 of 2008
| SZMKK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant last came to Australia in October 2007. On 9 November 2007, he applied for a protection visa. A statement attached to his application recounted a history upon which he sought protection against return to Lebanon. The applicant explained it further to the Refugee Review Tribunal, and presented some corroboration in evidence given by a relative in Australia. The Tribunal essentially accepted the past history put forward by the applicant, and in the circumstances it is not necessary for me to give details of it.
The applicant recounted events giving rise to his fear of harm, which commenced in 2004 when he discovered that his son-in-law was involved in criminal activities relating to Australia and other places. The son-in-law could not be convinced to give up his criminal behaviour, and in 2005 the applicant visited Australia and discussed the situation with a relative living here. He gave information, which was passed onto the police. There subsequently were prosecutions of people in Australia, and prosecutions were also brought in Lebanon against the son-in-law, after the applicant had returned there. The applicant claimed that he was then harassed and threatened with death by his son-in-law and his gang. The son-in-law suspected that the applicant had been involved in events leading to his own prosecution.
The applicant’s daughter's marriage then collapsed, and he and his daughter feared for their lives, after the son-in-law was released on bail pending trial. The applicant could not tell the Tribunal what was the eventual outcome of the prosecution. The son-in-law had connections with politically powerful people in Lebanon, and this caused the applicant to fear that he would not receive protection against the son-in-law and his gang, if he stayed in Lebanon. He therefore came to Australia and applied for a protection visa.
A delegate of the Minister refused the visa application on 28 December 2007. The delegate said that the applicant's claimed fears of harm “are essentially related to matters that can be best described as private and criminal in nature and are not related to any of the reasons enumerated in the Refugee's Convention”.
The Tribunal handed down a decision affirming the delegate's decision on 20 May 2008. In its statement of reasons it said that it accepted that the applicant had brought to Australia information which had resulted in the son-in-law being arrested and detained by authorities in Lebanon. It also accepted that the son-in-law suspected the applicant, and had threatened him with harm after the applicant returned to Lebanon. The Tribunal expressly accepted that the applicant “fears harm from the applicant [sic] son-in-law and/or his associates in Lebanon because he informed about them and their (criminal) activities in Australia."
However, the Tribunal found in relation to the immediate persecutors:
The harm which the applicant fears from his son-in-law was and is directed to the applicant because the son-in-law suspects him of reporting his (the son-in-law's) (criminal) activities and not for any Convention related reason; the applicant essentially fears what amounts to criminal conduct against him by the son-in-law and/or by the son-in-law's associates, for a non Convention.
The Tribunal was alive to the possibility that Australia would still be bound by protection obligations under the Refugee's Convention, if the law enforcement authorities in the Lebanon were unwilling or unable to afford protection against the harm feared by the applicant, and if that unwillingness or inability itself had a Convention nexus (see, for example, Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1 at [30] and [31]). It addressed that issue in the following paragraphs:
52.The Tribunal also considered whether the applicant cannot get protection in his country from the harm that he fears for a Convention reason should he return to his country. As noted above the applicant claims that he cannot get protection from the harm he fears in Lebanon because the son in law is backed by the Syrians, Hizbollah and terrorists in his country and he himself supports the Lebanese government. The Tribunal does not accept as plausible that the applicant cannot get protection from harm in his country for a Convention reason, including because of his political opinion, imputed political opinion or because he is a member of a particular social group. Although the applicant said that he did not claim protection in his country from the threats he received he told the Tribunal that he has never had any difficulties with the Lebanese government. Also the Lebanese authorities in fact took action and arrested the son in law in Lebanon according to the applicant’s oral evidence to the Tribunal. Although the applicant said that the son in law was acquitted because of his political connections he also said that the son in law obtained bail indicating that the legal proceedings against him were continuing and that he did not know whether the son in law was acquitted. The applicant’s evidence before the Tribunal does not enable it to conclude that the son in law was acquitted or did not face the consequences of his criminal conduct because of his political affiliations or that the applicant cannot get protection from Lebanese authorities because of his own political opinion, his imputed political opinion or because he is a member of a particular social group.
53.…[addressing the fears of the applicant’s daughter]
54.In the Tribunal’s view there is no plausible evidence before it that the applicant has suffered, or will suffer in the reasonably foreseeable future, persecution in his country, or that he cannot get protection from harm in his country, because of his political opinion/imputed political opinion, because he is a member of a particular social group or for any other Convention reason. In the Tribunal’s view the evidence does not establish that there is a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country.
55.Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in Lebanon within the meaning of the Convention.
The applicant now asks the Court to set aside the Tribunal's decision, and to remit the matter to the Tribunal. I have power to do this only if I am satisfied that the Tribunal's decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa, nor whether he should be allowed to stay in Australia under any other visa arising from the humanitarian and compassionate aspect of this case.
A concern which I identified at a directions hearing, was noted in my orders when I fixed the matter for hearing today. They provided:
Note that the Court will consider whether the Tribunal's reasons at [52] and [54] reveal an incorrect application of the 'real chance’ test of the risk of future persecution for a Convention reason.
Unfortunately, the applicant has not been assisted by a legal representative, and the grounds and arguments put forward in his application and written and oral submissions do not provide any real assistance in relation to this issue. However, aided by counsel for the Minister, I have endeavoured myself to consider the arguments which could be presented on this issue on behalf of the applicant, if he had been legally represented.
The difficulty with the language used by the Tribunal in [52] and [54] is to discern whether statements made by the Tribunal when assessing whether state protection would be withheld in Lebanon from the applicant for a Convention reason should be treated as only findings on evidence relevant to that issue, or as containing its ultimate conclusions on that issue. The language of [52], considered in isolation, is ambiguous whether the Tribunal thought that an application of the “real chance” test of the risk of future persecution required it decide whether it was positively satisfied by evidence showing a probability of protection being denied for a Convention reason, or whether it appreciated that it would be enough to be satisfied as to a less than probable risk of this happening. The terms of the opening question posed by the Tribunal for itself in the first sentence of [52] is not reassuring in this respect. The last sentence in [52], while making relevant factual findings, would have revealed error if the Tribunal had treated them as conclusive of the exclusion of protection obligations by Australia.
This is because it would not be enough, that the applicant's evidence did not "enable" a positive conclusion as to the existence of a Convention reason for a possible denial of protection (compare a Tribunal’s defective reasoning which I found in SZLTF v Minister for Immigration [2008] FMCA 1177 at [22] – [30]). As is well established, arising from Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, a protection obligation would arise even if the possibility of a denial of State protection for a Convention reason was less than probable, and even if it is a possibility “well below 50 per cent” (see Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 572).
Unlike Guo’s case, the present Tribunal's reasoning does not contain factual conclusions which plainly excluded all risk of a Convention nexus for a denial of State protection. Rather, the Tribunal's conclusion was framed as of lack of satisfaction as to a well founded fear of persecution. That, in itself, does not reveal error, since authorities, including Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, have pointed out that s.36 of the Migration Act requires a state of positive satisfaction by the Tribunal as to the existence of a well founded fear in terms of the Convention definition.
Whether the present Tribunal properly appreciated and applied the real chance test is not a matter that I have found easy to decide. However, I am not persuaded that its reasoning reveals that it ultimately assessed the relevant risk of Convention-related denial of State protection on a balance of probabilities test, or upon another test which was more demanding than the real chance test.
The Tribunal's recitation of the relevant law in relation to denial of government protection and the real chance test is taken from a template which appears impeccable (see [12] and [15] of its Statement of Reasons). The fact that this uses language frequently seen in other Tribunal decisions does not necessarily mean that the present Tribunal member did not carefully think about the legal propositions which she included in her statement of reasons. I should assume that she has thought about them properly, unless there is some indication to the contrary.
In this situation, the concerns I have concerning [52] also need to be read in the context of the ensuing reasoning of the Tribunal in [54] and [55]. In the context of the factual circumstances of the present applicant's accepted history, it was, in my opinion, certainly open to the Tribunal to have arrived at a firm opinion, as a matter of fact, that there was an insufficient risk of Convention-related denial of state protection. A conclusion which correctly applied the ‘real chance’ test cannot, therefore, be regarded as so surprising as to be unlikely.
The Tribunal came very close to making expressly a positive finding in the course of its assessment of the evidence in [52], and in the first sentence of [54], which excluded a real chance of Convention-related persecution. I would, therefore, be cautious in reading its subordinate factual findings themselves as revealing that the Tribunal asked itself the wrong question when it arrived at its ultimate conclusion. That is, as showing that it failed ultimately to ask itself the correct question, applying a proper appreciation of the concept of well-founded fear in relation to possible future risks of Convention related harm.
My mind has been swayed by the last sentence of [54] of the Tribunal's reasoning which, in my opinion, reveals that the Tribunal was aware that it had to assess whether all the evidence persuaded it as to the existence of a “real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country”. This statement by the Tribunal was presented as its operative conclusion leading to its lack of satisfaction which it recorded in [55]. I am not persuaded that it was not an integral, and concluding, part of the Tribunal’s actual thought processes. In my opinion, it sufficiently suggests that the Tribunal's reasoning was not affected by any error of law in relation to its appreciation of the real chance test, nor in its application to the history and evidence given by the applicant and his witness.
I therefore would answer against the applicant, the issue which I raised at the directions hearing.
Turning to the arguments presented by the applicant in his application and submissions, his application contains the following three grounds:
1.The RRT failed to apply the law.
2.The RRT ignored important issues and misunderstood them.
3.The RRT incorrectly interpreted the applicable law and failed to accept the applicant’s well founded fear of persecution as a member of a social group.
The unparticularised contentions of error of law have not been given greater substance than I achieved in my formulation of the issue which I have addressed above. I am unable to identify any other issue concerning the application of the definition of refugee in the Refugee's Convention, as adopted and modified by the Migration Act, which arises for consideration in this case.
In relation to ground 2, I am unable to identify any elements in the applicant's history or relevant evidence which was before the Tribunal, which it has not addressed when arriving at its conclusions. I am unable to identify any issue which it was required to address, and failed to do so.
In relation to ground 3, the Tribunal's reasoning, for example at [52], shows that it did consider the applicant's history on the basis that he claimed to have a fear of persecution for reasons relating to actual and imputed political opinions and a ill defined membership of a particular social group. In my opinion, the Tribunal sufficiently addressed his claims in these respects.
The applicant's outline of submissions in paragraphs 1, 2, and 3, does not advance his case beyond the points made in his grounds of application which I have addressed above. Otherwise, they argue only with the merits of the Tribunal's assessments, or repeat the factual foundations of a history which, essentially, the Tribunal accepted or assumed.
Submission number 4 refers the Court to Saliba v Minister for Immigration & Ethnic Affairs [1998] FCA 1461, without explaining an argument making that case relevant to the present matter. I accept the submission of counsel for the Minister that the present case does not raise the issue upon which Sackville J ordered a remittal in Saliba. In the present case, as I have indicated, the Tribunal did assess the applicant's risk of harm upon the basis that he was claiming that there was a nexus to his feared harm through an imputation of a political opinion. As I have concluded above, the Tribunal was not satisfied that there was a well-founded fear that State protection, if it were denied to the applicant, would be denied for such a reason.
The fifth paragraph of the applicant's written outline of submissions refers the Court to the provisions of s.91R(3), as recently interpreted by the Full Court in SZJGV v Minister for Immigration& Citizenship [2008] FCAFC 105 and subsequent authorities. As I recently discussed in SZMDC v Minister for Immigration [2008] FMCA 1282, there are a number of aspects of the Full Court’s judgment which remain unsettled or difficult to apply.
In the present case, the Tribunal’s reasons refer to the applicant’s evidence as to his actions in Australia in relation to providing information about his son-in-law's criminal activities. It appears to have made a finding positively accepting that conduct. It made no express finding in terms of s.91R(3)(b), that the conduct was for a purpose otherwise than that of strengthening his refugee claims. Nor, as counsel for the Minister accepts, is it easy to assume that the Tribunal implicitly made that finding, since it is conceivable that the Tribunal might have found a contrary purpose if it had addressed that issue. I therefore find that the Tribunal did not make the determination under s.91R(3)(b) when referring to the applicant’s conduct in Australia.
However, in my opinion, the Tribunal has not made a jurisdictional error arising from its failure expressly to make a finding in terms of 91R(3)(b) when referring to the applicant's history, including his activities in Australia.
In SZJGV, their Honours at [31] accepted that a failure to make findings in terms of 91R(3) when considering an applicant’s evidence of his conduct in Australia may not necessarily lead to jurisdictional error, if the Tribunal's decision “could nonetheless, be upheld because it was independently supportable by reason of other findings” (see also SZBYR& Anor v Minister for Immigration & Citizenship [2007] HCA 26 at [28], [55]-[59], [91]).
In the present case, the crux of the Tribunal's reasons for affirming the delegate's decision did not turn upon its positive satisfaction as to any of the applicant's history, including his activities in Australia. Rather, it turned upon its assessment whether his evidence supported the existence of a real chance that there would be a Convention related reason for the applicant suffering harm and not being protected by State authorities. Its determination that his fears were not well-founded upon a Convention reason would have been the same, whether the Tribunal had positively accepted the history claimed by the applicant or had merely assumed the truth of the claimed history.
In my opinion, therefore, the operative conclusion of the Tribunal should be regarded as being independently supportable by its opinion that the refugee claims and evidence presented by the applicant did not inherently allow it to be satisfied as to a Convention nexus in relation to the fear of harm and absence of state protection. I therefore do not accept the submission made in paragraph 5 of the written outline of submissions, insofar as it raises a further ground of review based on s.91R(3).
Paragraph 6 of the applicant’s written submission refers to an imperfect transcript of the English spoken at the hearing held by the Refugee Review Tribunal. The applicant, in his oral submissions, also referred me to passages in this transcript. However, I do not consider that anything that happened at the hearing, or that is found in any of the evidence as to what was said at the hearing, assists with the issue which I have addressed above, concerning the Tribunal's application of the real chance test.
I did not understand the applicant to be making any submission that his transcript of the hearing before the Tribunal reveals anything which might otherwise give rise to any jurisdictional error.
I have taken into account all that the applicant has said to me today, as well as his written submissions, and I have not been satisfied that the Tribunal's decision is affected by jurisdictional error. I am, therefore, obliged to dismiss the application with costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 16 October 2008
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