SZMWG v Minister for Immigration - [2009] FMCA 346

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWG v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 346

MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of Lebanon claiming fear of persecution on the grounds of religion and political opinion – relocation – whether Tribunal misunderstood the applicant’s claims – where applicant complained he did not receive a copy of the Tribunal decision – natural justice – procedural fairness.

Migration Act 1958 (Cth), ss.422B, 424, 424A, 425, 425A, 426A, 441G, 474, 476, 477

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; 237 ALR 634; [2007] HCA 40
Januzi v Secretary of State for Home Department [2006] 2 AC 426
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41

Applicant:

SZMWG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2718 of 2008

Judgment of:

Scarlett FM

Hearing date:

18 February 2009

Date of Last Submission:

18 February 2009

Delivered at:

Sydney

Delivered on:

28 April 2009

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The Application is dismissed.
The Applicant is to pay the First Respondents costs fixed in the sum of $5865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2718 of 2008

SZMWG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

The applicant, who is a citizen of Lebanon, applies for review of a decision of the Refugee Review Tribunal signed on 12^th September 2008 and handed down on 25^th September, affirming a decision of a delegate of the Minister for Immigration and Citizenship not to grant the applicant a Protection (Class XA) visa.
The applicant asks for three orders:
(1)The RRT decision, if any, be quashed.
(2)The matter be reconsidered.
(3)The applicant be given visa to stay until the Court makes a decision.
The Court has no power to make an order granting the applicant a visa. That is a matter for the Minister. The first and second orders sought are in the nature of certiorari and mandamus, which are within the Court’s jurisdiction.
The applicant relies on three grounds:
(1)The Tribunal misunderstood my claims.
(2)The Tribunal and solicitor failed to give me copy of the decision, which I was told was faxed to my solicitor by RRT.
(3)RRT failed to accord me natural fairness.
The Minister has filed a response, opposing all the orders sought on the basis that no reasonable cause of action is shown.

Background

The applicant last arrived in Australia on 17^th August 2007. He had visited Australia previously, having arrived on 3^rd September 2006 and departed on 27^th November. He applied for a Protection (Class XA) visa on 23^rd May 2008, whilst he was in immigration detention at Villawood, NSW. He appointed a migration agent to act for him. He claimed to fear persecution because he is a Sunni Muslim living near an area controlled by Shia militias. He claimed to have been outspoken against Hezbollah. He claimed to have been stabbed in 1998 and shot in 2003. He stated that if he were to return he would be “arrested, beaten, tortured, stabbed, shot and killed”.[1]
[1] See Court Book at 19
The applicant was interviewed by a Departmental officer at Villawood on 6^th June 2008.
A delegate of the Minister refused his application for a visa on 3^rd July 2008. The delegate found that the applicant did not have a political profile that would contribute to his well founded fear of political persecution because of his alleged fear of Hezbollah. The delegate also noted that the applicant had not applied for a protection visa until 23^rd May 2008. The delegate found that the applicant’s immigration history was not indicative of a person with a genuine fear of persecution.

Application to the Refugee Review Tribunal

The applicant applied to the Refugee Review Tribunal on 10^th July 2008 for review of the delegate’s decision not to grant him a protection visa. The application shows that he was still in immigration detention when he applied. The application also shows that he had authorised a solicitor, Martin Churchill, to act for him.
The Tribunal invited the applicant to attend a hearing on 3^rd September 2008. By this time, the applicant had been granted a Bridging visa.
The applicant attended the hearing on 3^rd September 2008, accompanied by his nephew. He gave evidence with the assistance of an interpreter in the Arabic language (Lebanese dialect). He produced his passport to the Tribunal.
The applicant also produced some other documents to the Tribunal in support of his case. They included some hospital records from Lebanon, in a mixture of Arabic, French and English.[2]
[2] Court Book 107-112
The Tribunal handed down its decision on 25^th September 2008, affirming the decision not to grant the applicant a Protection (Class XA) visa.

The Refugee Review Tribunal Decision

The Tribunal found that the applicant’s claims were based on the Convention grounds of religion and imputed political opinion. It accepted that he was a national of Lebanon, having sighted his Lebanese passport. The Tribunal also accepted that the applicant is a Sunni and lived in the area of Lebanon that he claimed.
The Tribunal also accepted key parts of the applicant’s claims, including that he lived in an area where there was a long history of hostilities and animosity between Sunnis and Alawites in the area where the applicant lived. The Tribunal also accepted that:
·The applicant was stabbed in 1998 by an Alawi youth as he was entering a mosque.
·The applicant was shot and injured in 2003 when unidentified Alawi gunmen opened fire on a group of Sunni youth playing soccer.
·Five of the applicant’s friends were killed by a grenade thrown by Alawis.
·The applicant’s brother and nephew were shot and injured as they stood outside the applicant’s parents building and that the shots were fired by Alawis.
·The applicant’s brother’s shop in the same street was burned down.
The Tribunal made this finding:
The Tribunal, therefore, cannot exclude as remote and insubstantial that chance that if the applicant returned to T[3] in the reasonably foreseeable future, he would face serious harm.[4]
[3] The name of the suburb of Tripoli in which the applicant lived is not published
[4] Court Book 127
The Tribunal, however, went on to find:
That said, for the reasons outlined further below, the Tribunal is satisfied that it would be reasonable for the applicant to relocate to a different locality in Tripoli or a different part of Lebanon to avoid the harm he fears in T.[5]
[5] Ibid
The Tribunal considered the issue of relocation and referred to the decision of Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[6] at 440-1. The Tribunal gave these reasons as to why it considered to be reasonable for the applicant to relocate within Lebanon:
a)The applicant’s evidence showed that his fears were localised and confined to a particular suburb, T;
b)Independent country information showed that clashes between Alawis and Sunnis had been centred on two particular suburbs;
c)Alawis do not have dominant presence in any other suburb of Tripoli and there was no evidence in the sources consulted by the Tribunal to suggest that Sunnis living in other areas have been subjected to violence or any other harm by Alawis.[7]
d)The Tribunal did not accept the applicant’s claim that he could not move out of T to another suburb because he had no money.
e)The applicant had no profile apart from being a Sunni and voicing general criticism against Alawis in his area.
f)The applicant had been away from Lebanon for more than a year and it was difficult to see why Alawis would want to track him down and intimidate him if he were to return to Lebanon and settle in a different suburb of Tripoli.
[6] (1994) 52 FCR 437
[7] Court Book 128
The Tribunal considered and rejected the applicant’s claim that Beirut airport was under the control of Hezbollah and if he were to go back he would be arrested at the airport. The Tribunal noted that the applicant had no political profile and also said:
More important, as it was put to the applicant at the hearing, he has previously departed Lebanon through Beirut airport on two occasions. An in November 2006 he returned to Lebanon from Australia via Beirut airport. It would be reasonable to expect the applicant to have been arrested on those occasions if he was wanted by Hezbollah and they controlled the airport. The Tribunal is satisfied that the applicant’s chance of facing arrest, detention or any other harm by Hezbollah if he were to return to Lebanon through Beirut airport to be remote.[8]
[8] Court Book 130
The Tribunal expressed itself to be satisfied that in all the circumstances it would be reasonable and practicable for the applicant to relocate safely to a different part of Lebanon to avoid the harm that he feared.
Accordingly, the Tribunal was satisfied that the applicant’s fear of persecution in Lebanon was not well-founded and affirmed the decision not to grant him a Protection (Class XA) visa.

Application to the Federal Magistrates Court

The applicant commenced proceedings on 22^nd October 2008 by filing an application and an affidavit in support. In his affidavit he says:
I am the applicant. I appeared before RRT on 3/9/08 and give evidence. My solicitor Mr Martin Churchill did not attend. I was told by RRT the decision was made on 25/9/08 faxed to Martin. I never received copy of the decision.
The applicant did not file an amended application or a written outline of submissions.
The applicant attended Court and made submissions with the assistance of an interpreter. In reply to a question from the Bench, the applicant criticised his former solicitor for not provided him with a copy of the decision.
The applicant told the Court that he was a real refugee. He said he had been wounded in 1998 and 2003 and some of his friends and relatives had been injured or killed. He said that he could not flee to any other area of Lebanon because:
a)He did not have the necessary funds; and
b)He could not go anywhere else in Lebanon.
The applicant said that he could not live in any other area because there was no safe place for him. He said his real fear was from Hezbollah and the Syrian Ba’ath Party. He belonged to a group that was against the Alawis and their followers.
The applicant said that he did not have any funds to start a business in any other area. He was persecuted in Tripoli. He does not know anyone in West Beirut.
The applicant took issue with the Tribunal’s statement that it would be reasonable for him to relocate to a different locality in Tripoli or a different part of Lebanon.
The applicant also claimed that the Tribunal disregarded important evidence that he presented, which was the medical information about the injuries to his brother. He also criticised the Tribunal for not accepting the news items that he provided because the material was not translated into English.
Counsel for the Minister, Mr Smith, submitted that the Tribunal had not misunderstood the applicant’s claims. It had accepted that the applicant had suffered harm and could suffer harm in the future if he returned to his home suburb, but it was not satisfied that the applicant’s fear of harm in other areas was well-founded.
As to the claim that the applicant had not received a copy of the Tribunal decision, Mr Smith submitted that a failure to prepare reasons for decision does not affect the Tribunal’s jurisdiction to make that decision (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme[9]) and a failure to deliver those reasons does not affect that jurisdiction.
[9] (2003) 216 CLR 212
The applicant had asked that all correspondence should be sent to his solicitor[10] and could not complain that the Tribunal had complied with that request.
[10] Court Book 82
As to the applicant’s third ground, that the Tribunal failed to accord the applicant natural fairness, the evidence in the Court Book shows that the Tribunal followed the orthodox procedure. The Tribunal raised the question of relocation with the applicant at the hearing and thereby fulfilled its obligation under s 425 of the Migration Act in accordance with the principles set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[11].
[11] (2006) 228 CLR 152; [2006] HCA 63
It was also submitted for the Minister that the Tribunal’s application of the relocation principle was also orthodox. The Tribunal posed the question whether it would be reasonable for the applicant, in the light of his personal circumstances, to relocate within Lebanon, and its conclusion that it would be reasonable for him to relocate to a place where he had no well-founded fear meant that he was not a refugee (SZATV v Minister for Immigration and Citizenship[12]; Januzi v Secretary of State for Home Department[13]).

Conclusions

[12] (2007) 233 CLR 18; [2007] HCA 40

[13] [2006] 2 AC 426

The applicant’s first ground of review is that the Tribunal misunderstood his claims.
The Tribunal, in its Findings and Reasons, set out the applicant’s case in this way:
His case is essentially that he is a Sunni Muslim and lived in T[14], a conflict prone area of Tripoli which separates from the Alawis living in the neighbourhood of J[15]. He claims to have been outspoken against Alawis and Hezbollah in the past; and to have been stabbed and shot as a result. He fears being harmed by Hezbollah, Alawis and the Syrian Ba’ath Party.[16]
[14] name not published
[15] name also not published
[16] Court Book 127
This description of the applicant’s claim shows that the Tribunal had a clear understanding of what the applicant claimed to fear. Not only did the Tribunal understand the applicant’s claim, it accepted it, at least as far as the applicant’s local area was concerned.[17]
[17] Ibid at [71]
The applicant’s only complaint can be that the Tribunal did not understand why he says that he cannot avoid that harm by relocating within Lebanon. The applicant told the Court, as he had told the Tribunal, that he could not relocate to another part of Lebanon because he did not have the funds to do so and it was not safe for him anywhere in Lebanon.
The Tribunal considered those claims. It found, on the basis of independent country information, that the harm the applicant feared was localised to an area where the Alawis were dominant.[18] Alawis do not have a dominant presence anywhere else in Tripoli and there was no evidence that Sunnis had been harmed by Alawis outside that limited area.[19]
[18] Court Book 128 at [75] and [76]
[19] Ibid at [77]
The Tribunal considered and rejected the applicant’s claim that he did not have the funds to relocate elsewhere in Lebanon:
At the hearing the applicant stated that he cannot move out of T to another suburb of Tripoli because he has no money. As the Tribunal put to him at the hearing, it is difficult to accept this claim given his ability to travel to Australia on two separate occasions. As it was also put to him at the hearing, he has previously worked as an upholsterer and barber and would be able to use these skills to earn a living elsewhere. Indeed, his own evidence suggests that he was able to work as a barber elsewhere in Tripoli in 2004.[20]
[20] Court Book 129 at [79]
The Tribunal also considered and rejected the applicant’s claim that he would not be safe elsewhere in Lebanon. The Tribunal noted that the applicant did not have a political profile and had been away from Lebanon for more than a year. The Tribunal found it difficult to see why the Alawis would track the applicant down and harm him if he returned to Lebanon but settled in a different suburb of Tripoli.[21]
[21] Ibid
The Tribunal noted that Tripoli was a conservative Sunni stronghold with a negligible, if any, Shi’a community. The Tribunal dealt with the applicant’s claim of fearing harm from Hezbollah or the Ba’ath Party by finding:
There was no evidence in the vast sources consulted by the Tribunal to suggest, even tentatively, that Hezbollah or the Syrian Ba’ath Party have been engaged in anti-Sunni activities in the past or to have taken action against those who speak critically of them or their activities. Indeed, the country information before the Tribunal indicates that Hezbollah’s policy appears to have been very careful to ensure that sectarian tensions are not exacerbated under its name (see ICG, ibid). The tribunal has already found that the applicant’s chance of facing harm at the hands of Alawis, whether or not acting on behalf of Hezbollah or the Ba’ath Party, to be remote. The Tribunal is also satisfied that if the applicant were to relocate to a different suburb of Tripoli, his chance of facing serious harm at the hands of Hezbollah, the Ba’ath Party or any of their Shi’a surrogates is remote.[22]
[22] Court Book 129 at [80]
The Tribunal dealt with the applicant’s claim that Hezbollah controlled Beirut airport and that if he were to return he would be arrested at the airport. It noted that the applicant had no political profile of any kind and his claimed outspoken criticism of Hezbollah boiled down to speaking critically in the neighbourhood or, on one occasion, speaking out loudly against them when a television crew was filming in the area. The Tribunal, relying on country information, found there was no evidence of Hezbollah taking action against those who spoke against it.[23]
[23] Court Book 129-130 at [81]
The Tribunal also noted that the applicant had departed Lebanon through Beirut airport on two occasions and had returned to Lebanon through Beirut airport in November 2006 without having been arrested by Hezbollah.[24]
[24] Court Book 130 at [81]
The applicant also told the Court that the Tribunal had ignored the evidence of the injuries suffered by the applicant’s brother and nephew. However, the Tribunal clearly did consider that material and accepted that they had been shot. It also accepted that the applicant’s brother’s shop had been burned down.[25]
[25] Court Book 127 at [70]
Taking all this into account, it is clear that the Tribunal not only understood the applicant’s case but accepted it, at least so far as it accepted that the applicant had a well-founded fear of serious harm for a Convention reason in his particular area. The Tribunal considered the reasonableness of relocation within Lebanon outside the area where there was a threat of harm and took into account the matters raised by the applicant as to why he claimed he could not relocate.
The fact that the Tribunal did not agree with the applicant’s contentions does not mean that it did not understand his case. The Tribunal clearly did understand the applicant’s case and his first ground fails.
The applicant’s second ground claims that the Tribunal and his former solicitor failed to give him a copy of the Tribunal decision. He concedes that the Tribunal faxed a copy of the decision to the solicitor.
Nothing turns on the fact that the applicant’s solicitor did not give him a copy of the decision. The applicant was able to commence proceedings within the time of 28 days prescribed by s 477(1) of the Migration Act.
The applicant told the Court that the solicitor did not provide him with a copy of the Tribunal decision because he had not paid the solicitor’s fees. Even if that were correct, and the statement was not given in evidence, nothing turns on the fact that the solicitor appears to have exercised a solicitor’s lien on the document.

The other part of the ground is that the Tribunal did not send a copy of the decision directly to the applicant. In his Application for Review to the Refugee Review Tribunal, the applicant nominated Mr Churchill as his adviser[26] and nominated his adviser as his authorised recipient[27]
[26] Court Book 82
[27] Court book 83
The Tribunal sent the copy of the Decision Record to the address of the solicitor, as the applicant had asked it to do.[28]. The applicant can hardly be heard to complain that the Tribunal sent the decision to his authorised recipient. In any event, the Tribunal was required to do so by s 441G of the Act.
[28] Court Book 117
The applicant’s second ground fails.
The third ground in the application complains that the RRT failed to accord the applicant natural fairness.
When dealing with procedural fairness or natural justice, it is necessary to consider that s 422B of the Migration Act provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the natural justice hearing rule.
The application does not contain any particulars of this claim that the Tribunal proceeding was somehow unfair. The Tribunal did not seek any additional information under s 424 of the Act and no s 424A issues arise. The Tribunal considered the applicant’s own evidence and independent country information, which are excluded from the operation of s 424A (1) by s 424A (3).
The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the decision under review, as it was required to do by s 425(1) of the Act.
The notice of invitation was sent on 15^th July 2008 to the applicant’s authorised recipient. It advised him that the hearing was to take place at 9:30 am on 3^rd September 2008 at the Tribunal’s address, Level 11, 83 Clarence Street, Sydney. In my view, the notice of invitation to appear complies with the requirements of s 425A of the Act, in that it gave the applicant notice of the day on which, and the time and place at which, he was scheduled to appear. The notice was sent to the applicant’s authorised recipient. It contained a statement of the effect of s 426A of the Act. The notice given was more than the prescribed period.
The applicant had indicated in his application for review that he needed the services of an interpreter in the Lebanese dialect of the Arabic language. The Tribunal provided the applicant with just such an interpreter.[29]
[29] Court Book 97
The delegate referred to the question of relocation in his Protection (class XA) visa Decision Record:
Further, Country information also suggests that Hezbollah’s influence throughout Lebanon varies and Hezbollah has attempted to broaden its appeal through civil and economic means. The applicant has the option of locating in areas of Lebanon where Hezbollah is not as prominent.[30]
[30] Court Book 79
The Tribunal decided that it would be reasonable and practicable for the applicant to relocate to another part of Lebanon in order to avoid the harm that he feared. That was a reason why the Tribunal was satisfied that the applicant’s fear of persecution in Lebanon was not well-founded.
The Tribunal discussed with the applicant the question of relocating to a different suburb of Tripoli or to West Beirut.[31] In my view, the Tribunal did meet its obligation to provide the applicant with a fair hearing under s425 of the Act, as set out by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[32] at [35]-[37].
[31] Court Book 126 at [62]-[63]
[32] supra
The applicant’s third ground has not been made out.
The Tribunal’s decision was based on its finding that the applicant could reasonably relocate within Lebanon to avoid the harm that he feared. The Tribunal considered whether it would be reasonable for the applicant to relocate, given his personal circumstances, which the Tribunal examined in some detail. The Tribunal’s application of the principles relating to relocation does not show any error.
In SZFDV v Minister for Immigration and Citizenship[33] the High Court (Gummow, Hayne and Crennan JJ) held at [14]:
As indicated in the reasons in SZATV, and as a general proposition to be applied to the circumstances of the particular case, it may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.
[33] [2007] HCA 41
In SZATV v Minister for Immigration and Citizenship[34] the High Court (Gummow, Hayne and Crennan JJ) held at [24]:
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
[34] supra
The Tribunal, in making its finding that it would be reasonable and practicable for the applicant, in his particular circumstances, to relocate to another part of Tripoli, and therefore he was not a refugee, correctly applied the principles set out in SZATV and SZFDV. No jurisdictional error is shown.
The Tribunal decision and supporting material do not show any arguable case of jurisdictional error not raised by the applicant or the first respondent.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision and is not subject to the orders in the nature of certiorari or mandamus that the applicant seeks (s 474(1)(c)).
The application will be dismissed. I will hear submissions on costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 27 April 2009