SZNSE v Minister for Immigration
[2009] FMCA 1056
•3 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNSE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1056 |
| MIGRATION – Review of Refugee Review Tribunal decision – visa – Protection (Class XA) visa – refusal – citizen of Lebanon claiming fear of persecution for reason of political opinion and by Salafis because he is an Alawi – credibility – natural justice – whether the Tribunal breached the rules of natural justice – whether the Tribunal failed to comply with the requirements of Migration Act 1958 (Cth) s.420 or s. 424 – merits review – no jurisdictional error. |
| Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Migration Act 1958 (Cth), ss.36, 417, 420, 424, 424A, 474, 476 |
| Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 SZBPQ v Minister for immigration & Multicultural & Indigenous Affairs [2005] FCA 568 Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 Minister for Immigration and Multicultural and Indigenous Affairs v SZGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 |
| Applicant: | SZNSE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1532 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 October 2009 |
| Date of Last Submission: | 19 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2009 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Mr Johnson DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is pay the First Respondent’s costs fixed in the sum of $5865.00 and I allow 12 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1532 of 2009
| SZNSE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is a citizen of Lebanon and alleges that he is an Alawi Muslim. He claims that, while in Lebanon, he fell in love with a Sunni Muslim girl and attempted to marry her without her family’s permission. He claims that he was subsequently attacked by the girl’s brothers who are also members of the Salafi group. He claims that he is in danger from the Salafi group in general.
The applicant claims to fear persecution in Lebanon because he is an Alawi Muslim.
Background
After his arrival in Australia on 12th September 2008, the applicant lodged an application for a protection (Class XA) visa. This was refused by the Minister’s delegate on 9th January 2009.[1] The applicant then applied to the Refugee Review Tribunal for a review of that decision by means of an application received by the Tribunal on 5th February 2009.[2]
[1] See Court Book at page 83
[2] Court Book at 99
The applicant was unsuccessful before the Tribunal and has applied to the Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside (Plaintiff S157/2002 v Commonwealth[3].
[3] (2003) 211 CLR 476
Background Facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 12 of the Tribunal decision[4] and relevant factual allegations are summarised below.
[4] Court Book 183-191
Protection visa application
The applicant made the following claims in his application for a protection visa:
a)He is a Muslim from the Alawi sect;
b)In 2005 he met a girl from a Sunni family. They fell in love and agreed to marry but when the girl’s family learned that the applicant was from the Alawi sect, they refused to allow the marriage;
c)Despite this, the couple decided to go ahead with their plans. They tried to make their way to court in order to get married but the girl’s brothers, who belonged to the Sunni Salafi group, intercepted them and attacked the applicant. He sustained injuries to his head and shoulder, and his right arm was broken;
d)He became a member of “the party” in order to get protection. From 2005 to 2008 the party fully protected him. However, in May 2008 they withdrew their protection when the applicant refused to join them in sectarian clashes against the Salafi sect;
e)He tried to escape to Syria but was unable to live there because there was no work and because Lebanese people were not welcome. He then tried to relocate to another area far from his home town but suffered discrimination when people learned he was from the Alawi sect; and
f)He fears returning to Lebanon because he will be targeted by the Al Salafi group. While the clashes between the groups have ceased, the enmity still exists and the Al Salafi are the majority in the area. They will keep looking for him even if he relocates.[5]
[5] Court Book 28-29
The applicant made the following additional claims at a hearing before the Tribunal:
a)He asked the girl to marry him in 2005 but he knew her before this. She had relatives in his home town whom she used to visit and they went to the same high school so the applicant used to see her all the time;
b)The possibility that he might be rejected by the girl’s family was not raised by her as she had relatives who were married to Alawis. However, her family rejected him as they were fundamental and strict;
c)After he was attacked by her brothers he did not see the girl again. When he left the hospital he was secretly taken to his house by friends and relatives as the girl’s family would not rest until they finished him off;
d)He did not report the attack to the authorities because they themselves are Salafis;
e)The girl’s family have continually made threats since 2005. They send messages by word of mouth;
f)He became a member of the Arab Democratic Party (ADP) because they protected him, although this protection did not extend beyond his home town;
g)He returned to Lebanon after his trip to Australia in July/August 2007 because he was still under the ADP’s protection;
h)He used to go to Syria “all the time”. However, from 2005 he went to Syria in order to escape the threats and because people were trying to kill him; and
i)When the ADP withdrew its protection in 2008 he ran away to Syria and from there applied for a visa to come to Australia.[6]
[6] Court Book 188-190
At the hearing, the Tribunal raised with the applicant discrepancies in his evidence regarding his employment history, noting that:
a)In his protection visa application he stated that he had worked for a satellite dish company from 2004 to 2008 but at the hearing he said that he commenced working for this company in about mid-1995; and
b)In his March 2007 visitor’s visa application he stated that he had worked for a technical services company from March 2002. However, in his later visitor’s visa application of June 2008 he stated that he had worked for this company since 1996.[7]
[7] Court Book 187
These concerns were later notified to the applicant in a letter written under the provisions of s. 424A of the Migration Act.[8] The applicant responded on 7th April 2009 claiming that:
a)The company wrote the letter according to what they believed was “good for the client” and therefore wrote that he had been working for them since 1996;
b)He commenced working for the company in 1996 but part of the work was not registered because he was working as a volunteer and sometimes on a casual basis; and
c)In 2008 the company changed ownership and, based on the records they had, wrote that the applicant had been working for them from 2004 to 2008.[9]
[8] Court Book 162-164
[9] Court Book 170-174
The Refugee Review Tribunal Decision
The Tribunal made its decision on 26 May 2009. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention and therefore did not satisfy the criterion set out in s. 36(2)(a) for a protection visa.
The Tribunal’s findings and Reasons
The Tribunal’s decision was based on the following findings and reasons:
a)The Tribunal found that, together, the following inconsistencies in the applicant’s evidence cast serious doubt on his credibility:
i)He gave contradictory evidence as to his employment and his explanations did not, in the Tribunal’s view, properly account for the fact that four different periods of employment were given at various times by the applicant and his employer;[10]
[10] Court Book 191 at paragraphs [88] and [89]
ii)He gave evidence at the hearing that he had known the girl for many years because they went to the same school. However, in his written statement he gave the very clear impression that the relationship only commenced when they met in 2005;[11] and
[11] Ibid at [90]
iii)At the hearing the applicant claimed that he went to Syria because he feared for his life after the ADP withdrew its protection. He claimed that from Syria he applied for a visa to come to Australia. However, the employer’s letter dated 28 May 2008 (provided with his visitor’s visa application) stated that the applicant had been granted three months leave, indicating that he had started arrangements to travel to Australia whilst in Lebanon and prior to 28 May 2008;[12]
[12] Court Book 192 at [91]
b)Given the applicant’s claim that he had known the girl for many years and knew that her family were Salafi, the Tribunal found it inherently implausible that he would not become aware of, or anticipate, the potential issues arising from his being Alawi;[13]
c)The Tribunal found that the applicant was not attacked and injured by the girl’s family in 2005, noting that there was no information before it to indicate that his injuries, which the Tribunal accepted he had, were sustained in or related to an attack by the girl’s family. Further, given its finding that the applicant was not a credible witness, the Tribunal was not prepared to accept this claim based on his evidence alone;[14]
d)The Tribunal did not accept that the applicant was threatened by the Salafi after 2005 or that he was a member of the ADP at any time or that the ADP protected him only to withdraw their protection when he refused to fight on their behalf. Again, given its finding that the applicant was not a credible witness, the Tribunal was not prepared to accept these claims based on his evidence alone;[15]
e)The fact that the applicant travelled outside Lebanon and returned to Lebanon on several occasions after the alleged attack, and during the period when he claims the threats were ongoing, indicated to the Tribunal that the applicant did not in fact face the threats as he claimed;[16]
f)The Tribunal found that the applicant would not face serious harm from Salafis because of his being Alawi should he return to Lebanon, noting that:
i)While country information indicates that Salafis are hostile to Alawis, there was no information before the Tribunal to indicate that such harm is directed against individuals;[17] and
ii)The applicant has been able to travel safely outside his home town – which is a Sunni majority area – on several occasions since 2005 and has also been able to work safely in his home town. Further, he did not claim to have suffered any harm since 2005;[18]
g)Finally, the Tribunal did not accept that the applicant had been subject to discrimination because of his being Alawi, noting that there was no evidence to indicate that such discrimination occurred. Further, the applicant, on his own evidence, was able to attend school, was employed by one employer for several years and had travelled safely outside his home town many times.[19]
[13] Ibid at [93]
[14] Ibid at [95]
[15] Court Book 192-193 at [96]-[98]
[16] Court Book 193 at [100]
[17] Court Book 193-194 at [102]-[103]
[18] Court Book 194 at [104]
[19] Ibid at [106]
Application to the Federal Magistrates Court
The applicant commenced proceedings in this Court by filing an application and an affidavit in support on 26th June 2009. In his application he seeks orders to this effect:
a)A declaration that the Tribunal decision is void and of no effect;
b)An order prohibiting the Minister from acting upon or giving effect to the Tribunal decision;
c)An order in the nature of certiorari quashing the Tribunal decision; and
d)An order in the nature of mandamus remitting the application to the Tribunal for determination according to law.
The application gives four grounds of the application, which are quite lengthy and involve numerous references to the merits of the applicant’s refugee claim. However, they can be summarised in this way:
a)Ground 1 – The Tribunal breached the rules of natural justice in connection with the making of its decision under s. 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and used the discrepancies in the applicant’s evidence to doubt all the facts of his case. The Tribunal did not adopt a liberal and impartial approach to the review;
b)Ground 2 – Procedures that were required to be observed in connection with the making of the Tribunal’s decision were not observed in accordance with s. 5 of the Administrative Decisions (Judicial Review) Act and s. 420(1) of the Migration Act 1958. The Tribunal made incorrect findings, did not apply a fair review mechanism and did not act according to substantial justice;
c)Ground 3 – There was no evidence or other material to justify the making of the decision. The Tribunal failed to obtain further evidence and misconstrued or misapplied s. 424 of the Migration Act; and
d)Ground 4 – The Tribunal’s findings were inconsistent with independent information and the Tribunal wrongly found that the applicant was not a credible witness.
Submissions
The applicant did not file any written submissions. He attended Court in a state of some distress and told the Court that he had not been well. He was unsure whether he had actually applied to discontinue his application or not. When he was told that no notice of discontinuance had been filed and that the matter was ready to proceed, the applicant was unsure whether he wished to discontinue or not. He said that he had been advised that his application to the Court was of no use. However, the applicant eventually elected to proceed with his application.
The applicant told the Court that someone helped him to prepare his application as he cannot read or write English. He appeared to be unaware of the contents of his application.
The applicant complained that the Refugee Review Tribunal did not do anything for him. He said:
They did not feel for my situation.
The applicant said that he was not well when he attended the Tribunal hearing. His teeth (presumably he meant his gums) were swollen. The Tribunal member saw this and should have given him an adjournment. He conceded that the Tribunal asked him if he wanted an adjournment. He said that he was accompanied at the Tribunal hearing by his lawyer (presumably he meant his migration agent).
The applicant said that he would be in danger if he were to return to Lebanon. If he had to go back to Lebanon, he would rather die in Australia. He said:
I will go and jump in the sea.
In answer to a question from the Bench, the applicant conceded that the Tribunal Member asked him if he was well enough to proceed with the hearing and he agreed. He said that he thought:
I am here now. Maybe they will give me my rights.
The applicant tendered a report from the Transcultural Mental Health Centre dated 4th August 2009. The report contains a dual diagnosis:
a)Major Depressive Disorder (principal); and
b)Post Traumatic Stress Disorder (secondary).
Disturbingly, the report states:
The client is also at low risk in terms of suicidality. If the refugee status of the client was refused, the client will be at high risk of suicide.
The report also stated that the applicant had been referred to STARTTS to address the treatment of his mental health issues.
Mr Johnson, solicitor, who appeared for the Minister, submitted that there had been some correspondence with the Tribunal about an application for an adjournment of the hearing but the Tribunal eventually decided to proceed with the hearing.[20]
[20] Court Book 183 at [22]-[25]
The Tribunal considered the applicant’s medical evidence and confirmed at the hearing that the applicant was ready to proceed.[21] Mr Johnson submitted that the Tribunal did not err in its hearing obligations on account of the applicant’s health.
[21] Court Book 187 at [47]
Conclusions
As to the applicant’s first ground, it is couched in terms of a breach of s. 5 of the Administrative Decisions (Judicial Review) Act. It was submitted that the Federal Magistrates Court does not have jurisdiction to review migration decisions under this Act (see Plaintiff S157/2002 v Commonwealth of Australia[22] at [97]).
[22] supra
The fact is that the Court is exercising its jurisdiction under s. 476 of the Migration Act and the ground will be considered accordingly. Whilst the ground refers to a breach of the rules of natural justice, it is no more than a challenge to the Tribunal’s factual findings about the merits of the applicant’s refugee claim.
The Court does not have the jurisdiction to conduct a merits review of the applicant’s refugee claim and Ground 1 therefore fails.
The applicant’s Ground 2 claims that the Tribunal did not follow procedures set out in s. 5(1)(b) of the Administrative Decisions (Judicial Review) Act and s. 420(1) and s. 420(2)(b) of the Migration Act. The application does not provide any particulars of the alleged breach of the AD(JR) Act. As to the alleged breach of s. 420 of the Migration Act, the application states:
According to s. 420(1) and s 420(2)(b) of the Migration Act the tribunal is to pursue the objective of providing a mechanism that is fair and must act according to substantial justice and the merits of the case.
However, the ground then goes on to cavil with the Tribunal’s factual findings, which is again an attempt at merits review.
In any event, failure to comply with the requirements of s. 420 of the Migration Act is not a jurisdictional error. It has been held by the High Court in Minister for Immigration and Multicultural Affairs v Eshetu[23] that s. 420 is intended to be “facultative, not restrictive”.[24] In SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs[25], Hely J followed the decision in Eshetu and said:
Compliance with its provisions is not a precondition to lawful decision-making.[26]
[23] (1999) 197 CLR 611
[24] (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J
[25] [2005] FCA 568
[26] [2005] FCA 568 at [15]
The applicant’s Ground 2 has not been made out.
Ground 3 is a claim that the Tribunal failed to obtain evidence about the applicant’s case and did not have any evidence to justify making the decision that it did. There is also a claim that the Tribunal misconstrued or misapplied s. 424 of the Migration Act.
This ground is misconceived. There is no obligation on the Tribunal to find evidence to disprove an applicant’s case. It is for an applicant to make out his or her case (Applicant A169 of 2003 v Minister for Immigration and Multicultural Affairs[27] at [31]; NAAP v Minister for Immigration and Multicultural and Indigenous Affairs[28] at [37]). It is well established that:
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular assertion by an applicant is not made out.[29]
[27] [2005] FCAFC 8
[28] [2003] FCAFC 76
[29] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 per Heerey J at 348 [7]
Again, there is no general duty on the Refugee Review Tribunal to make inquiries about an applicant’s case unless there are rare and exceptional circumstances (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[30]; Minister for Immigration and Citizenship v SZIAI[31]). There are no rare or exceptional circumstances in this matter.
[30] (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32
[31] [2009] HCA 39
This ground also claims that the Tribunal misconstrued or misapplied s. 424 of the Migration Act. There are no particulars provided in support of that claim. Even if the application was intended to refer to s. 424A of the Act, there is nothing to suggest that the Tribunal failed to comply with that section. The Tribunal wrote to the applicant on 20th March 2009 and put matters to him for his response or comment, and this letter appeared to comply with s. 424A of the Act. The Tribunal relied on matters put to it by the applicant or independent country information when it made the decision that it did to affirm the decision under review.
There is no breach of either s. 424 or s. 424A of the Migration Act apparent and the applicant’s Ground 3 fails.
Ground 4 complains that the Tribunal’s findings were inconsistent with independent information and the Tribunal wrongly found that the applicant was not a credible witness.
The Tribunal referred in its decision to independent evidence about the situation of the Alawis/Alawites:
The departure of Syrian forces from Lebanon left many Alawites acutely aware of their insecurity. Due to the exodus of Christians from Tripoli during Tawhid’s reign of terror in the early 1980s, the city was now overwhelmingly Sunni and seethed with Salafi fundamentalist movements deeply hostile to Alawites…
Whatever the cause of the violence, the position of Lebanon’s tiny Alawite community has never been more precarious. Radical Salafi preachers in Tripoli have threatened to expel Alawites from Lebanon. Even mainstream Salafi preachers barely hide their contempt.[32]
[32] Court Book 185-186
The Tribunal stated that it had given consideration to the independent information about the position of the Alawis in Lebanon, which indicated that Salafis are hostile to Alawis. What it then did was consider whether this hostility would lead to a serious risk of harm to the applicant if he should return to Lebanon.[33] It decided, on the evidence, that the applicant would not face serious harm if he were to return to Lebanon.[34]
[33] Court Book 193 at [102]-[103]
[34] Court Book 194 at [104]-[105]
The Tribunal considered whether Alawis may be discriminated against by Sunnis or Salafis. It found no independent evidence to indicate that such discrimination occurs and there was no evidence that the applicant had been subject to discrimination. On the contrary, the Tribunal found:
He attended school; has, on his evidence, been employed by one employer for several years; and has been able to travel safely outside Jabal Muhsen many times.[35]
[35] Ibid at [106]
The Tribunal found that the applicant would not face serious harm from the Salafis on his return to Lebanon.[36]
[36] Ibid at [107]
These findings were open to the Tribunal to make. It is a matter of fact for the Tribunal as to what weight it gives to independent country information. In SZANK v Minister & Multicultural & Indigenous Affairs[37], Hely J, applying NAHI v Minister for Immigration & Multicultural & Indigenous Affairs[38], held at [16]:
I cannot accept these submissions, because it was a matter for the RRT to decide what weight should be given to ‘country information’ as part of its fact finding function. The question of the accuracy of country information, and its relevance to a person in the position of the appellant, is one for the RRT, not the Court.
[37] [2004] FCA 1478
[38] [2004] FCAFC 10
In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs, Gray, Tamberlin and Lander JJ held at [11]:
There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself as part of its fact finding function.
The Tribunal in this case considered the independent country information along with the applicant’s evidence. The weight that it gave to the evidence was a matter for the Tribunal. It was open to the Tribunal to make the findings that it did on the evidence before it.
Again, this ground is essentially an attempt at merits review of the Tribunal’s factual findings. Whilst the applicant complains that the Tribunal was “prejudiced by its finding that I am not a credible witness”, credibility, too, is a finding of fact and essentially a matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[39] at [67]).
[39] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1
The applicant’s Ground 4 has not been made out.
The applicant was not legally represented in these proceedings, although he had the benefit of advice of a barrister on the RRT legal advice panel. My independent reading of the Tribunal decision and supporting documents does not disclose any arguable case for any other jurisdictional error.
I am satisfied that there is no jurisdictional error in the Tribunal decision. Accordingly, the Tribunal decision is a privative clause decision and, therefore, not subject to declaration, certiorari or mandamus (s. 474).
It follows that the application must be dismissed. I will consider the question of costs.
That said, it is clear, from the report from the Transcultural Mental Health Centre that the applicant tendered, and from the applicant’s demeanour when he appeared in Court that he is suffering from some form of depression. It would clearly be in his interests for him to undergo some treatment for this condition.
Once he has completed his legal proceedings, the applicant would be advised to seek advice from a competent migration agent about making an application to the Minister for Immigration and Citizenship for the exercise of the Minister’s discretion under s. 417 of the Migration Act on compassionate grounds. He has some family in Australia. He resides with his brother in Sydney.[40] However, that is a matter for the applicant. Whether or not the Minister sees fit to exercise that discretion is entirely a matter for the Minister.
[40] Court Book 187 at [54]
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 November 2009
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