SZNGR v Minister for Immigration - [2009] FMCA 630

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 630

MIGRATION – RRT decision – Lebanese Christian affected by conflict between Muslim factions – Tribunal found no Convention nexus to harms feared – no procedural error in refusal of more time to present evidence – no material mistranslations shown – no other jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.414A, 426

Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976
M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212
Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908
Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1
Perera v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 56 ALD 231
SZJHR v Minister for Immigration [2007] FCA 1901
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212

Applicant:

SZNGR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 429 of 2009

Judgment of:

Smith FM

Hearing date:

29 June 2009

Delivered at:

Sydney

Delivered on:

29 June 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 429 of 2009

SZNGR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in July 2008 on a visitor's visa issued to him under World Youth Week arrangements. He lodged an application for a protection visa on 31 July 2008 assisted by his cousin. A statement attached to the visa application explained why he claimed to fear return to Lebanon. His statement also said that he had come to Australia under a mistaken belief that his visa would allow a three month visit, not the 22 days residence which it permitted, and that he would have wasted a large amount of money if he had to return within the shorter period.
His refugee claims referred to clashes in early 2008 between the Alawites and the Sunnis in Lebanon, which adversely affected his occupation of transporting vegetables between his town and Tripoli. He said that he was a Christian living in a predominantly Christian town, but that “my job was seriously affected and my income stopped” as a result of the conflict. He said that “if I return to Lebanon I will not be able to continue that business and if I do take the risk I will be in danger as you can see from the current news on television and internet”. Some news reports about these events were included with his application.
The applicant also obliquely suggested that he would be harassed and accused of supporting the rivals of the Syrians or Alawites, by reason of a perceived association with the “Lebanese forces”, which was a Maronite Christian political party represented in the government of Lebanon, and was in conflict with Hezbollah. His statement said that although his brothers were committed members of that party, he was only a supporter.
These claims were explained to a delegate of the Minister at an interview on 15 October 2008. However, the delegate refused the visa application on 20 October 2008. The delegate concluded that the applicant did not face a real chance of Convention-related persecution on grounds of religion or political opinion. He accepted that the applicant had not been able to earn his living from his own business due to “the civil conflict”, but said that this hardship “is not legally a relevant consideration for a grant of a protection visa and is one that can be pursued along another avenue”.
The applicant appealed to the Refugee Review Tribunal. He did not appoint a representative, although at one time he appears to have been assisted by a solicitor. He attended a hearing on 22 January 2009, which was rescheduled at the request of the applicant from 6 January 2009.
Prior to the rescheduled hearing, the applicant requested a further three month adjournment to enable him to get witness statements from Lebanon, and also to call a witness in Australia who could not come to Sydney. The applicant said that the statements from Lebanon ‘would corroborate my version of events’. The content of the Australian witness’ proposed evidence was never shown to the Tribunal in a written statement and remains obscure.
The Tribunal informed the applicant that the request for a further adjournment of the hearing date was refused, and the applicant did attend the hearing with his cousin present as an observer.
The Tribunal set out a full description of the hearing in its statement of reasons, and its description appears to be confirmed by a transcript prepared by Mr Toufic Laba Sarkis which the applicant has tendered. The Tribunal, both in writing before the hearing, and in the course of the hearing, raised matters of concern to it as to the existence of a Convention-related fear of persecution if the applicant returned to Lebanon. It appears to me that all the matters upon which the Tribunal subsequently decided the case were fully and fairly put to the applicant in the course of its proceedings.
The Tribunal made a decision on 28 January 2009, affirming the delegate’s decision.
In its findings and reasons, the Tribunal sufficiently summarised the essence of the applicant's claims as follows:
The applicant claims, essentially, that he is fearful of persecution in Lebanon because of his religion, his perceived association with, or membership of, the Lebanese Forces and because of his lack of employment resulting from the unstable situation in the country and the conflict in Jebel Mohsin. For the reasons that follow, the Tribunal does not accept that the applicant has a well founded fear of persecution if he were to return to Lebanon.
The Tribunal addressed the evidence of the incidents which the applicant had described to it, being incidents where the applicant had been stopped by persons waving weapons at him, or had suffered what he regarded as discrimination when unloading his truck, or had encountered other unsettling behaviour in the course of his transport business. In the course of one of these, the applicant's religion had been referred to. However, the Tribunal said that none of the incidents described by the applicant “whether taken singularly or cumulatively, constitute serious harm”. It said:
The applicant stated that there were no incidents of physical harm and that he was allowed to leave on each occasion when he was stopped. He referred to threats made in an incident when his religion was ‘humiliated’ and stated that at no other time were any threats made. He referred to an incident when he was asked to wait for the unloading of his truck. The Tribunal accepts the applicant’s evidence that these events took place. The Tribunal is of the view that none of the incidents described by the applicant, whether taken singularly or cumulatively, constitute serious harm. This is because on each occasion the applicant was allowed to continue his activities, he was not physically harmed and on one occasion when he was threatened, he was able to continue his business and avoid returning to that place. The applicant has not suffered significant physical harassment, ill-treatment or significant economic hardship or any other harm contemplated by s. 91R(2). The applicant claims that he continued with his work until May or June 2008 while the incidents took place in about February or March, so that none of the incidents prevented the applicant from being able to continue his employment and his daily activities.
The Tribunal found:
If the applicant were to return to Lebanon, he may experience the same level of harassment as he has experienced in the past. The Tribunal finds that such conduct would not, whether taken singularly or cumulatively, amount to serious harm.
The Tribunal accepted that the applicant's ability to earn a livelihood by delivering goods to Tripoli would have been affected by the conflict in Lebanon, but said:
There is nothing to suggest that any of the Convention reasons were an essential and significant reason for this harm claimed by the applicant. Rather, the applicant's inability to deliver in Tripoli is a result of the general conflict in the area, it does not target the applicant for any Convention characteristic.
The language used by the Tribunal in these conclusions, draws upon the statutory definition of “persecution” in s.91R(1) and (2) of the Migration Act and, in my opinion, is consistent with authorities which have examined situations where there is a breakdown in civil order, in particular: Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 204 CLR 1.
The Tribunal expressly addressed the applicant's evidence that he had sold his truck and given the proceeds to his sister while his refugee claims were pending in Australia, and that he therefore had no money to support himself and could not continue his business if he returned. The Tribunal said that it “does not accept that the applicant sold his truck because of any Convention characteristic”. The Tribunal said that it was of the view that “the applicant's lack of funds has not resulted from the fact that the applicant is a Christian or from any Convention characteristic”.
I consider that these findings were open to the Tribunal on the evidence before it. And so too was its conclusion that “even if the Tribunal accepts that the applicant will have limited funds and limited opportunity to work in the future, the Tribunal finds that no Convention reason is an essential and significant reason for the applicant’s financial difficulties and the harm he claims to fear as a result of these”.
The Tribunal applied its earlier findings, to conclude that “there is no real chance that the applicant will be persecuted for a Convention reason if he were to return to Lebanon now or in the reasonably foreseeable future”.
The Tribunal added a further, and independent, reason for affirming the delegate's decision, which was that it found that “the applicant does not have a genuine fear of persecution in Lebanon”. It based that conclusion on the applicant's statements in his visa application and evidence, that he would have preferred not to have come to Australia had he known that he would only have a short stay visa, but that he would have invested his money in his village to run a business. The Tribunal also thought that if the applicant now returned to his village, it would be reasonable for him to continue to reside there.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I have power to make these orders only if the Tribunal's decision is affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee covered by the Refugees Convention and Migration Act, nor do I have power to address generally whether the applicant should be given permission to stay in Australia.
The applicant's arguments have been presented in his original application, in an amended application, and in a submission which he read to the Court today.
His original application and, less clearly, his amended application, complain that the applicant was not allowed “sufficient time to obtain witness statements” and that “relevant and important witnesses (were) not able to be present”.
In support of that contention, the Court is shown three documents, and is asked to accept that they are translations of witness statements which became available to the applicant after he received the Tribunal's decision. Whether this is true is not entirely clear, since two of them have prior dates, but the translations might not have been available to the applicant before the Tribunal made its decision. The three statements are made by persons in Lebanon, and confirm three of the incidents which the applicant had described to the Tribunal. The Court is not shown what evidence might have been led from a witness in Australia, if the Tribunal had adjourned the hearing to allow that person to attend.
The Tribunal in its statement of reasons narrated a relevant exchange which occurred at the end of the hearing about this, and explained its ruling:
48. The Tribunal explained to the applicant that his application was made in July and he had ample time to provide further materials and that for that reason it would not allow him more time to provide additional documents as he had requested, but that he could provide any material to the Tribunal at any time before the decision was made. The applicant said that he was working in Queensland and he was not following up the correspondence and people he worked with were half illiterate and could not help him with the documents or translations. In his village it was snowing all the time and it was impossible to get documents.
Findings and reasons
49. The Tribunal acknowledges the applicant’s requests for more time to provide additional evidence and to adjourn the hearing. He claims that he required further statements from the residents of his village, who were unable for various reasons to prepare such statements expeditiously. He also stated that two of his witnesses were not available. However, the Tribunal notes that the application for the visa was made in late July 2008, almost six months earlier, and the Tribunal formed a view that the applicant has had ample time in that period to obtain any material that he wished to provide, including statements from his villagers. The applicant has also indicated that he wished to provide a full CV and evidence of his employment. However, the Tribunal accepts that the applicant has been employed as a truck driver and does not consider such evidence necessary. The applicant also referred to two witnesses and noted that he wished the Tribunal to take evidence from these. The Tribunal has considered the applicant’s wish for the Tribunal to obtain oral evidence from another person. The Tribunal has decided not to do so because The Tribunal has accepted the applicant’s description of the events in Lebanon and also because the Tribunal informed the applicant that the witnesses could provide written evidence to the Tribunal. For these reasons, the Tribunal has not agreed to the applicant’s request to allow him three more months to present his case and decided to proceed to the decision.
The transcript shows that the Tribunal also drew the applicant's attention to the provisions of s.414A of the Migration Act, which requires the Tribunal to review the delegate’s decision under s.414 and record its decision under s.430 within 90 days, starting on the day on which the Secretary gave the Registrar the documents that s.418(2) requires the Secretary to give to the Registrar. The Tribunal's reference was inaccurate by suggesting it was “90 days of the application being lodged”. However, the Tribunal was correct to draw the applicant's attention to the legislative expectation that the Tribunal should act with a degree of expedition, and this was a relevant consideration for the Tribunal when considering whether to grant further adjournments.
In my opinion, the Tribunal’s statement of reasons shows that it properly addressed its discretion to allow the applicant more time to present his evidence. The Tribunal's substantive reasons for affirming the delegate’s decision show that it did accept that there had been three incidents as claimed by the applicant and described by the witnesses, and it is not apparent to me that had the present statements been before the Tribunal they could have affected its decision. Be that as it may, I consider that the Tribunal correctly found that it was not obliged by the provisions of the Migration Act, insofar as they encompass procedural fairness, to accede to the applicant's request for more time. I do not consider that he has established any jurisdictional error arising from its refusal to do this.
In relation to the Australian witness, the Tribunal had a discretion not to accede to a request that it take evidence from a witness (see s.426(3) and authorities including Minister for Immigration & Multicultural & Indigenous Affairs v Katisat [2005] FCA 1908 and SZJHR v Minister for Immigration [2007] FCA 1901). I am not persuaded that there was any error in its exercise of this discretion, giving rise to jurisdictional error affecting its substantive decision.
Turning to the applicant’s amended application, it contains the following grounds:
1.The Refugee Review Tribunal (the Tribunal) misunderstood my claim and the serious harm suffered as a result of being forced to stop my business and source of income.
2.The Tribunal also failed to understand systematic threats directed to me as serious harm and meeting the definition of refugee.
3.The Tribunal ignored the country information as to what happened to the place of employment and the attack between Sunni and Alawi and that my business ceased to operate as a result as well as the significance of the physical harassment, ill treatment, significant economic hardship and that the harm I feared amounted to persecution. (s91R(1)).
4.The Tribunal failed to accord me natural justice and prevented me from providing further evidence and statement knowing that I needed such time because I never had proper advice and I was confused.
5.The Tribunal erred in law in making a finding that there is no real chance I will be persecuted for Convention reasons if I were to return to Lebanon.
Particulars
1.The Tribunal ignored statements included in court documents pages 70, 71, 72, 76, 77 especially in relation to my income and the request for witness statements from the Lebanon.
2.The transcript should lead the Honourable Court to accept loss of my work, loss of my business, loss of income. The humiliation and the pointing of weapons at me and other incidents which should amount to serious harm.
The contention in ground 1 that the Tribunal “misunderstood my claim and the serious harm suffered” is not established. On my reading of the Tribunal's decision, the Tribunal did consider all of the applicant's evidence and his concerns about the harassment he had encountered and of returning to Lebanon. No particular claim has been identified which was overlooked. As I have explained above, when analysing the Tribunal's reasons, I do not consider that the Tribunal's conclusion that no Convention ground was established is based upon any misunderstanding either of the applicant's claims or of the quality of harm which he claimed to have suffered.
Grounds 2 and 3, in my opinion, invite the Court to re-examine the applicant's evidence and itself apply the provisions of the Refugees Convention and Migration Act. However, this is not the task of the Court.
I do not accept that the Tribunal failed to understand any of the applicant's evidence, nor that there was any country information about the relevant background in Lebanon which the Tribunal “ignored”.
The applicant's oral submissions criticised the Tribunal for not conducting more researches of its own. However, it was a matter for the Tribunal to consider what background by way of general information it should obtain and refer to in its reasons (cf. Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 at [18]; and Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 at [15]). I am not satisfied that any jurisdictional error arises out of this criticism.

Ground 4 repeats the contention made in the original application, that there was a denial of natural justice by reason of the refusal of the Tribunal to adjourn the hearing or allow the applicant more time to present witness statements. As I have concluded above, this ground is not established.
Ground 5 is obscure in its contention of error of law. I can find no misapprehension as to the effect of relevant provisions of the law in the Tribunal's reasons.
The reference in particular 1 to pages 70 to 71 is to a written invitation made by the Tribunal for comments, and a response submitted by the applicant with the assistance of a solicitor. Pages 72, 76 and 77 are references to the applicant's request for more time to present witness statements from Lebanon. However, it is clear that the Tribunal took into account the applicant's evidence about his income which had been submitted in writing to the Tribunal, since it referred to this response in its statement of reasons. I have already dealt with the Tribunal's consideration of the applicant's request for time to present witness statements. In my opinion, the Tribunal's consideration of all of these pages reflected no error of law.
The second particular to ground 5 invites the Court itself to assess the applicant's evidence as given to the Tribunal and shown in the transcript prepared by Mr Toufic Laba Sarkis. However, it is not the function of the Court to do that.
Nor is it within the Court's function to address any of the oral submissions which were made by the applicant, which described his current predicament following from the sale of his truck and the uncertainties about his position back in Lebanon, and invited the Court to provide unspecified remedies in relation to the applicant’s immigration status. In the course of his oral submission, the applicant invited the Court to consider numerous parts of the transcript, and I have done so, but have not found this exercise to be of assistance in identifying any arguable jurisdictional error by the Tribunal.
In oral submissions, reference was made by the applicant to one point in the transcript where Mr Sarkis inserted a comment in parentheses:
Member:You said in your statement that your cousins tried to get a ticket for you to return to Lebanon before your visa expired and that there were no tickets available. You told me that the statement was read back to you so that you are familiar with the statement. I am trying to understand what you meant when you made the statement, when you put the sentence in your statement.
Applicant:I was really confused here because of the fact that I suffered a lot in Lebanon. I wasn’t able to concentrate here quite good and to be able to be conscious on everything therefore some miscommunication. [applicant says came here was so stressed was lost. Dropped a lot of weight due to stress and fear but interpreter did not translate this].
Assuming, without finding, that there were parts of the applicant's response which were not fully interpreted to the Tribunal, I do not consider that any material flaw in the Tribunal's hearing would have occurred. I think it likely that the Tribunal was fully alive to the applicant's state of mind which was conveyed in such parts of the response as were translated to it and from other parts of his evidence. Moreover, it appears likely that the applicant’s full response was confused and largely unintelligible, and was immaterial to the Tribunal's consideration of his refugee status. No other defect in the interpreting at the hearing was pointed to by the applicant.
Considering the authorities in relation to the obligation on the Tribunal to provide competent interpreter services at a hearing, I do not consider that this point raises any grounds for concluding that this obligation was not provided at this hearing of the Tribunal (see Perera v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 56 ALD 231, VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723, and M175 of 2002 v Minister for Immigration & Citizenship [2007] FCA 1212).
I have carefully considered all the points made by the applicant in the course of his submission to me, suggesting that the Tribunal did not properly appreciate his difficult situation if he returns to Lebanon. However, for the above reasons I have not been persuaded that the Tribunal's decision was affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 13 July 2009