SZNFI v Minister for Immigration & Anor

[2009] FMCA 506

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNFI v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 506

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Lebanon – applicant not believed – Tribunal sent s.424A letter to the applicant by registered post but he did not receive it until after the Tribunal decision – whether the Tribunal breached s.424A of the Migration Act 1958 (Cth) considered – whether the hearing opportunity was a fair one considered – no reviewable error found.

Migration Act 1958 (Cth), ss.422B, 424A, 424B, 424C, 429B, 441A, 441C

Applicant: SZNFI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 259 of 2009

Judgment of: Driver FM

Hearing date: 27 May 2009

Delivered at: Sydney

Delivered on: 27 May 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms B Rayment
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

3. The Court directs that the applicant’s address for service be noted as 46 Station Street, Arncliffe.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 259 of 2009

SZNFI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 3 December 2008.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant made claims of persecution in Lebanon.  Background facts relating to the applicant's claims and the Tribunal decision on them are conveniently set out in the Minister's written submissions filed on 9 April 2009.  I adopt as background for the purposes of this judgment, with amendments, paragraph 2 through to 11 of those written submissions:

   In a statement attached to his protection visa application, the applicant claimed to fear persecution from ‘waring factions’ in Lebanon. He resided in a town close to the Israeli border that was heavily bombed in the July and August 2006 war and claimed he would not be protected should war break out again. He also claimed that as a result of his cousin, wife and sister’s connection with the South Lebanese Army (SLA) his family were considered traitors and people may take advantage of the current situation to kill him if he returns to Lebanon. He also claimed to fear harm from unexploded landmines that were planted all over his farming land and from Sunni Muslims because he was a Shiite Muslim: court book (CB) 36-38.  

   The applicant attended an interview before a delegate of the Minister on 3 September 2008. The Tribunal’s decision contains a summary of the evidence given to the delegate. At the interview, the applicant claimed that his family’s involvement with the SLA affected him personally because he would be suspected and subject to revenge attacks from the Hezbollah. He claimed that as a Shiite Muslim it was difficult for him to live anywhere in Lebanon and that he could only live in his town. The delegate also discussed the applicant’s delay in applying for protection in Australia: CB 95 [22].

   In a decision dated 11 September 2008, a delegate of the Minister refused to grant the applicant a protection visa: CB 53-63.  The delegate rejected all of the applicant’s claims to fear harm in Lebanon on the basis of independent country information that indicated adequate State protection would be available to him and that he could relocate within Lebanon: CB 47-56. Accordingly, the delegate was not satisfied the applicant was owed protection obligations and refused to grant him a protection visa: CB 57.

   Proceedings before the Tribunal

   On 7 October 2008, the applicant lodged an application with the Tribunal for review of the delegate’s decision: CB 58-61.

   By a letter dated 27 October 2008, the Tribunal invited the applicant to attend a hearing on 27 November 2008, to give oral evidence and present arguments in support of his case: CB 62-63. The applicant accepted the invitation (CB 66- 67) and attended the hearing on 27 November 2008.

   On 3 November 2008, the Tribunal sent a letter to the applicant pursuant to s.424A. The letter outlined the applicant’s migration history and his statement at the Departmental interview that he ‘did not know’ why he had not applied for protection earlier. It also explained that his delay in applying for a protection visa might cause the Tribunal to find that his fears in Lebanon were not genuine. The applicant failed to respond to this invitation within the prescribed time.

   The Tribunal decision contains a record of matters discussed at the hearing: CB 96 [24]-99 [41]. The applicant confirmed that the only reason he feared persecution from the Hezbollah was due to his family’s involvement in the SLA and from unexploded landmines that were placed all over his farming land: CB 98 [36]-[37]. He stated that his main fear was from the Hezbollah and claimed that they had threatened his family and called for his return to Lebanon: CB 97 [30]-[32], 98 [38]-[39]. The Tribunal asked the applicant why he had delayed six years in applying for protection in Australia (CB 97 [35]) and put to the applicant that the fact he had not mentioned specific threats from the Hezbollah in his protection visa application or the delegate’s interview may cause it to doubt the truthfulness of his claims: CB 97 [33]-[34] and 98 [38]. The applicant suggested that the member should take evidence from his sister in Lebanon and provided her name and telephone number for that purpose. The Tribunal then attempted to contact the witness but was unable to talk to her. The applicant said that he had no other numbers in Lebanon: CB 99 [39]. The Tribunal then took evidence from Mr Bilal, a witness nominated by the applicant, who generally corroborated the applicant’s claims: CB 99 [41].

   The Tribunal affirmed the delegate’s decision on 3 December 2008. The Tribunal accepted that the applicant’s sister was involved with the SLA, but rejected the applicant’s claim to fear harm for this reason on the basis of adverse credibility findings. In particular, the Tribunal found the applicant’s failure to mention the threats from Hezbollah at any stage prior to the Tribunal hearing was ‘inexplicable’ as these threats constituted the main basis of his claimed fear: CB 101 [50]. The Tribunal also found that his evidence about the threats was ‘vague’: CB 101 [51]. The Tribunal also relied on the applicant’s significant delay in lodging his protection visa application (CB 101 [52]) and the inconsistency of his claims with independent country information (CB 101 [54]) to conclude that the ‘combination of these facts’ caused it to reject his claims.

   The Tribunal also considered the applicant’s fear of landmines and the general instability in Lebanon but was not satisfied that these matters amounted to ‘systematic and discriminatory conduct’ that gave rise to a fear of persecution for a Convention reason: CB 102 [56].

   After considering the applicant’s claims ‘singularly and cumulatively’ the Tribunal concluded that there was no real chance the applicant would be persecuted for a Convention reason if he were to return to Lebanon: CB 102 [57].

2. These proceedings began with a show cause application filed on 4 February 2009.  There are four grounds in the application which I incorporate in this judgment:

   1. The applicant was not invited properly by the [Tribunal] under s.424A as the applicant only received the Tribunal’s letter dated 3 November 2008, on the 15^th of December 2008.  This resulted in the applicant not being able to furnish information and documents crucial and significant to his review before the [T]ribunal; at or before the date of the hearing dated 27 November 2008.  this has resulted in the [T]ribunal misapplying, and breaching and misconstruing s.424C(2).

   2. The [T]ribunal had failed to give the applicant an opportunity to respond to the queries put forward in the [T]ribunal letter dated 3 November 2008 as it was only received by the applicant on the 15^th of December 2008, some 12 days after the [T]ribunal’s decision leading to not taking any information from the applicant in relation to the [Tribunal’s] decision and resulting in a denial of natural justice and procedural fairness breaching s.424B of the Migration Act [1958 (Cth) (“the Migration Act”)].

   3. The [T]ribunal did not give the applicant reasonable extension of time at the [T]ribunal’s hearing as the member wrongly thought that the applicant had received the letter dated 3 November 2008 and the member understood and again wrongly that the applicant had sufficient time to respond.  This has resulted in the [T]ribunal questioning the credibility and the authenticity of the applicant’s claim.

   4. The failure of the [T]ribunal to confirm the applicant’s claim by contacting the applicant’s mother in Lebanon without any success during the hearing.  This had led the [T]ribunal to wrongly question the applicant’s credibility affecting negatively the outcome eof the applicant’s review before the [T]ribunal.

3. The application is supported by two affidavits both made on 20 January 2009.  The affidavits are by the applicant and Mr Nizar Bilal.  Mr Bilal also gave additional oral evidence.  I also have before me as evidence the court book filed on 25 February 2009. 

4. The applicant did not attend the first court date hearing in this matter on 18 February 2009.  Procedural orders were made in his absence.  The applicant told me from the bar table that he had become lost and had arrived at Court after the first court date hearing had concluded.  He was, however, given a copy of the Court's orders by a member of the court staff. 

5. The applicant expressed concern that he had missed out on the opportunity to participate in the Minister's panel advice scheme.  The solicitor for the Minister tendered a copy of a letter dated 19 February 2009 addressed to the applicant at his address for service.  That letter enclosed a copy of the documents that the applicant would have been invited to complete had he attended the first court date hearing.  The applicant denied receipt of that letter.  He asked to change his address for service.  It is unfortunate that the applicant did not attend the first court date hearing and it would be even more unfortunate if he did not receive the letter from the Minister's solicitors sent the following day.  However, in my view, the Court and the Minister's solicitors have done what could reasonably be expected to draw the Court's orders and other information relating to the proceedings to the applicant's attention.  I do not consider that anything further needs to be done. 

6. Turning to the grounds in the application; the first two grounds in effect assert jurisdictional error in relation to the Tribunal's obligations under s.424A of the Migration Act. The Tribunal wrote to the applicant pursuant to that section by letter dated 3 November 2008 (CB 64-65). That letter outlined the applicant's migration history and his statement at an interview conducted by the Department that he did not know why he had not applied for a protection visa earlier than he had. The letter also explained that the applicant's delay in applying for a protection visa might cause the Tribunal to find his fears in Lebanon were not genuine. The letter called for a response by 26 November 2008. In its terms the letter met the requirements of s.424A. It was correctly addressed. The Minister submits that the applicant is deemed to have received the letter seven working days after the date of the letter, namely on 3 November 2008 pursuant to s.441C(4) of the Migration Act as the Tribunal complied with s.441A(4). The oral evidence of Mr Bilal confirms that that is so. Mr Bilal gave evidence that he attended the post office at Arncliffe on Tuesday, 6 January 2009 and was shown the postal records concerning the registered item, being the s.424A letter. Mr Bilal gave evidence that those records showed that the s.424A letter was received at the post office on 4 November 2008. I accept that evidence. It must necessarily follow that the letter was despatched within three working days of the date of the letter.

7. Mr Bilal also gave evidence that the letter was not collected from the post office until 15 December 2008 and that it appears to have been collected by someone other than the applicant. The applicant's evidence is that the letter was collected by his niece and was given to him on the same day, 15 December 2008. Whether that is so or not, the applicant is taken to have received the letter in accordance with the provision of s.441C(4). There was no breach of s.424A by the Tribunal, neither was there any procedural unfairness.

8. The applicant did not respond to the invitation to comment within the time prescribed. That would be consistent with his non-receipt of the letter within that period. It does not appear from the Tribunal's decision record that the applicant's failure to respond to the letter within the time specified was raised with the applicant at the hearing conducted on 27 November 2008. However, the issue raised in the letter was raised at that hearing. That issue was the applicant's delay in seeking a protection visa after he entered Australia. It was a delay approaching six years. The Tribunal notes the raising of that issue in paragraph 35 of its reasons (CB 97-98). The applicant therefore had an opportunity at the hearing to address the issue raised in s.424A letter. I reject the first two grounds of review.

9. The Minister's submissions also refer to s.424B of the Migration Act as that section is referred to in the second ground. I see nothing of significance in reference to s.424B. A lawful period for a response to the letter was provided, notwithstanding the apparent non receipt of the letter by the applicant within that period.

10. The Minister's submissions also refer to s.422B of the Migration Act which limits the applicant to the rights afforded under Part 7 of the Migration Act. That submission may overlook the fact that there is a view that s.422B(3) itself confers a procedural fairness entitlement. Whether that be so or not, there was no want of procedural fairness in relation to the issue raised.

11. Ground 3 also refers to the applicant's alleged delay in receiving s.424A letter. The Minister interpreted that ground as a complaint that the applicant was denied an extension of time to respond. In his written submissions, not filed and prepared in the Arabic language and read today by the interpreter, the applicant suggested that the complaint was that he had sought time to provide additional information at the hearing. He said that he had sought two weeks and that that request had been denied. There is no evidence to support that assertion. The Tribunal's decision record is silent on the question of whether any request for additional time was made. If a request was made, then the Tribunal was not bound to grant it. There is an insufficient evidentiary basis for any contention that the Tribunal erred in consideration of its discretion in relation to any such request. I reject the third ground of review.

12. Ground 4 asserts that the Tribunal erred in failing to contact the applicant's mother in Lebanon to confirm his claims.  The Tribunal decision record indicates at paragraph 39 (CB 99) that at the Tribunal hearing the applicant suggested that the Tribunal take evidence from his sister in Lebanon and that he provided her name and telephone number for that purpose.  The Tribunal attempted to contact her but the attempt was unsuccessful.  The applicant said he had no other numbers in Lebanon. 

13. In his submissions the applicant sought to give a different version of that exchange.  It may be, as the applicant says, that the Tribunal asked the applicant if any member of his family in Lebanon could verify his claims.  In response, the applicant gave the name and telephone number for his sister in Lebanon.  The applicant appeared in his submissions to be expressing concern that the Tribunal did not also seek to contact another sister he has in Israel.  However, he conceded that the Tribunal's decision record is accurate in stating that he told the Tribunal that his sister in Israel may not know about the fact that he was wanted in Lebanon.  It appears probable, therefore, that if the applicant had invited the Tribunal to contact the sister in Israel, the Tribunal reasonably concluded that she would not be able to give useful information.  

14. The Tribunal is empowered by the Migration Act to take evidence by telephone[1].  It attempted to do so but was unsuccessful.  I see no jurisdictional error in the procedure followed by the Tribunal.  I reject the fourth ground review. 

    [1] S.429A

15. I conclude that the Tribunal decision is free from jurisdictional error.  The decision therefore is a privative clause decision and the application must be dismissed.  I will so order. 

16. The Minister seeks an order for costs fixed in the sum of $3,500.  That is substantially less than the prescribed scale amount.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  1 June 2009