SZOGI v Minister for Immigration
[2011] FMCA 277
•28 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOGI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 277 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misunderstood the applicant’s claims, failed to find that the applicant’s fear arose out of his membership of a particular social group, had a bad impression of him, did not take his witnesses’ evidence seriously, did not take account of what happened to him in Lebanon and mis-characterised his claim. |
| Migration Act 1958, ss.91S, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZOGI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2737 of 2010 |
| Judgment of: | Cameron FM |
| Hearing date: | 12 April 2011 |
| Date of Last Submission: | 12 April 2011 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2011 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2737 of 2010
| SZOGI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Lebanon where, he claims, he was an active member of the Future Movement party. He claims that members of his extended family supported an alternative party, El Marada, and that this led to a political rift in his family. He claims that the dispute escalated in 2008 and resulted in the death of a family member. He claims that the deceased’s father, who is a supporter of El Marada, blamed the applicant for the death of his son. He claims that members of the El Marada family branch want to kill him in retaliation.
The applicant claims to fear persecution in Lebanon because of his political opinion.
After his arrival in Australia on 24 May 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 25 November 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant. A previous Tribunal decision dated
25 February 2010 was quashed by order of this Court on 30 June 2010.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: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-18 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
In his protection visa application the applicant claimed that a person was killed in Lebanon as a consequence of an argument and that the police were present when this occurred. He claimed that someone wanted to frame him and accused him of being the murderer. He further claimed that when he reported to the police station, “they” informed “the master of the police station” that “they wanted to kill” him and he was consequently placed in protective custody for two months. After he arrived in Sydney, he was warned that “they” wanted to kill him when he returned to Lebanon.
Departmental interview
On 24 November 2009 the applicant was interviewed by an officer of the Minister’s department. At the interview he made the following claims:
a)his family home in Lebanon is only accessible via a lane which passes through a neighbouring property. The owners of the neighbouring property are members of his extended family;
b)on 24 April 2008 his neighbours blocked the lane, preventing him and his family from getting to their home. The applicant called the police to solve the problem but when the police arrived they were shot at by one of the neighbours. The neighbour also tried to shoot the applicant but missed and hit the applicant’s cousin instead, killing him;
c)he was placed in protective custody but was released two months later when the police caught the suspect. He stayed in Tripoli and did not return to his village;
d)the suspect’s trial took place in April (2009). At the trial the applicant and two of his cousins (“D1” and “D2”), who had also been present during the shooting, gave evidence against the suspect. His father was also called as a witness. The suspect has not yet been convicted;
e)he came to Australia (in May 2009) to visit relatives and planned to return to Lebanon after a short stay. However, while he was here, his father was told that he would be killed if he returned to Lebanon. His father told him not to return as he would be murdered for giving evidence against the suspect;
f)D1 and D2 have also been threatened and are trying to leave Lebanon. His father has not been threatened because he was not present during the actual crime – he came out of the house after the shooting to see what had happened; and
g)his enemies will be able to find him anywhere in Lebanon. The police cannot protect him as they cannot even protect themselves.
At the interview the applicant submitted a translated copy of a formal police report describing their investigation of an incident on 24 April 2008 in which a person was killed during the course of a dispute between several parties in the local area. Included in the report were the witness statements of two police officers, the father of the deceased (“C1”), the applicant’s cousin, D1, and the applicant himself.
Tribunal as first constituted
The applicant made the following additional claims at a hearing before the Tribunal as first constituted on 11 February 2010 (“first Tribunal hearing”):
a)the April 2008 incident was part of a long-running dispute between two branches of his family. The dispute began because each branch supported a different political party: the applicant’s branch supported the Future Movement party and Saad Hariri, while the other branch supported the El Marada party under Franjieh;
b)the applicant’s father’s cousins – C1, “C2” and “C3” (who were all brothers) – were part of the El Marada family branch. C2 lived next door to the applicant’s family while C3 lived 200-300 metres away. In order to get to the applicant’s house one had to use the road going past C3’s house. This was the only road to the village;
c)he saw C1 and C3 digging up the road when he left for work on the morning of 24 April 2008. When he returned to his house later that day the police were already at the scene as C3 had called them earlier to tell them that he was not going to let anyone use the road. While C1 and C3 were yelling at the police, C2 got into a fight with the applicant’s other cousins, D1 and D2 (who were also brothers). C2 then went into his house, grabbed a machine gun and started firing. He tried to kill the applicant but missed and accidentally shot his nephew, C1’s son, instead. C2 then fled the scene;
d)C1 blamed the applicant for his son’s death because the applicant was the person who C2 was actually trying to shoot;
e)although C1 had said in his police statement that C3 dug up the road because the applicant and his friends had been driving down the street in a manner which caused dust and noise and threatened small children, this was not true. Because the applicant and his friends did not support the El Marada party or Franjieh, C2 and C3 harassed them by not allowing them to use the road or the electricity generators;
f)he was the leader of a social/youth group in the village and was very well known in the area. His youth group used to convey the requirements of the villagers to Prime Minister Hariri’s office, an activity which attracted some criticism;
g)he used to meet his friends in the youth group at a coffee shop outside the village. People thought that he was taking political news in and out of the village and they tried to stop him. “They” wanted to control everything in the area, including the roads;
h)he did not mention everything in his protection visa application, including the political issues relevant to his case, because he thought he would have the opportunity to discuss things in more detail at the interview. However, at the interview he did not mention these political issues because, variously, he was nervous, was not asked about it, did not have time to explain all the factors surrounding the incident, his English was not good and the interpreter did not tell him anything; and
i)he will be killed by Franjieh supporters if he returns to Lebanon.
Tribunal as secondly constituted
The Tribunal as secondly constituted held a hearing on 1 October 2010 (“second Tribunal hearing”). At that hearing the Tribunal took evidence from the applicant’s uncle who claimed to have been on the telephone with the applicant’s father at the precise time of the shooting on 24 April 2008. He claimed that the applicant had learned prior to the incident that members of El Marada were going to close the road to the airport. He claimed that the applicant subsequently organised a meeting to notify the followers of Future Movement of El Marada’s plans. He claimed that members of El Marada blocked the road to stop the applicant from attending the meeting and that after the incident they put the blame on the applicant to prevent him from leaving. He claimed that he had heard all of this from the applicant and his father.
The Tribunal also took evidence from a family friend who, it was claimed, had visited the applicant’s family home in Lebanon in August 2009. He claimed that during his visit armed people from the Franjieh group came to the applicant’s house and asked for him (the applicant). He claimed that the Franjieh group were responsible for the murder of his uncles so he knew them very well. He stated that he was certain that something would happen to the applicant if he returned to Lebanon.
At the hearing the applicant made the following additional claims:
a)he became “fully involved” in the Future Movement party in 2007 and attended every meeting. It was at this point that the political rift between his family and C1, C2 and C3 began although nothing serious happened until April 2008;
b)C1, C2 and C3 did not like the fact that the applicant was doing things for Hariri. They wanted the village to be controlled by Franjieh;
c)he planned on going to work on 24 April 2008 but when he heard that there was going to be a meeting he decided not to go. At noon, D1, D2 and the applicant left the latter’s house to attend the meeting, the purpose of which was to discuss the needs of the people in the village and the surrounding areas. However, they were unable to go because C3 had dug up the road; he did this to prevent the applicant from going to the meeting. C3 then called the police to tell them what he had done. The police arrived at the scene at 7pm and the applicant went to have a look. Shortly afterwards, D1 and D2 got into a fight with C2 who then went into his house, grabbed a Kalashnikov and started shooting. C2 wanted to kill the applicant because D1 and D2 had come to visit him but although trying to shoot the applicant, he killed C1’s son instead;
d)he was not causing nuisance and disturbance on the road. This is just what C3 and his brothers had told the police;
e)C1 blamed the applicant for his son’s death because he believed that his son would not have been killed had the applicant not been involved in the meetings. Also, C1 wanted to blame the applicant to save his brother; and
f)he made no mention of any political issues in his protection visa application or at the interview with the delegate because the person who translated for him when he completed his visa application told him that there was no need to include details and at the interview he was never given a chance to speak, was cut off and was never asked about these things.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant made no mention either in his protection visa application or at the departmental interview of any political factors behind the April 2008 incident or his fear of returning to Lebanon. These claims were made for the first time at the hearing before the Tribunal as first constituted and, in the Tribunal’s view, were designed to overcome the delegate’s finding that the applicant’s claims were not Convention-related. The Tribunal noted in this connection that:
i)if the political views and activities of the applicant and his immediate family were factors before, during or after the incident in April 2008, the applicant could reasonably be expected to have made some mention of them, however tentatively, prior to the first Tribunal hearing; and
ii)the applicant’s various explanations were unconvincing and unsatisfactory, particularly his allegation that at the departmental interview he was not given an opportunity to present his case. Having listened to an audio recording of the interview, the Tribunal found that the delegate was measured and polite and provided the applicant with ample opportunity to elaborate on his evidence. In the Tribunal’s view, the applicant’s allegations to the contrary showed a disregard for the truth and demonstrated his unreliability as a witness;
b)there were numerous inconsistencies in the applicant’s evidence. For example:
i)the applicant claimed at the second Tribunal hearing that the purpose of the meeting on 24 April 2008 was to discuss the needs of the people in the area. This did not accord with the evidence of the applicant’s uncle which was to the effect that the applicant had organised a meeting to advise Future Movement followers of El Marada’s plans to block the road to the airport. The Tribunal did not accept that the evidence provided by the applicant’s uncle was credible;
ii)at the first Tribunal hearing the applicant claimed that he saw C3 and his brothers digging up the road when he left for work on the morning of 24 April 2008. However, at the second Tribunal hearing he said that when he left his house at noon with D1 and D2 to go to a meeting, he saw C3 digging up the road alone;
iii)the applicant stated at both Tribunal hearings that C3 had called the police to tell them that he had dug up the road but at the departmental interview the applicant said that he was the one who had called the police; and
iv)the applicant’s account of the events of 24 April 2008 as recorded in his witness statement to the police was inconsistent with the accounts he provided to the Tribunal at the first and second hearings;
c)in light of the various inconsistencies in his evidence, Tribunal found that the applicant was not a credible, truthful or reliable witness. The Tribunal found that he had a propensity to fabricate, shift and tailor evidence in a manner which achieved his own purpose and formed the view that he had manufactured his claims and concocted evidence to achieve an immigration outcome. In reaching this conclusion, the Tribunal also had regard to the following:
i)at the second Tribunal hearing the applicant said that since 2007 he had attended Future Movement meetings regularly. However, he could not explain why, on this particular occasion, C3 and/or his brothers wanted to prevent him from attending one of his regular meetings by taking action as drastic as digging up a public road. When asked at the second Tribunal hearing how he knew that it was in response to his desire to attend the meeting that C3 had dug up the road, the applicant said that there was “no other explanation”. The Tribunal did not find this persuasive;
ii)at the departmental interview the applicant confirmed that the police report was an accurate reflection of the day’s events and at no point subsequently did he dispute its accuracy. However, there was nothing in that document which indicated, even remotely, that the events of 24 April 2008 had any political dimension or were caused by reasons other than what was stated, namely, that the events of 24 April 2008 were precipitated by the applicant’s actions in creating nuisance on the road;
iii)the Tribunal did not accept the applicant’s explanation for the absence of a political element from the events and complaints recorded in the police documents; and
iv)the applicant’s evidence suggested that he came to Australia to visit relatives and not because of his fear of harm in Lebanon;
d)the Tribunal considered the evidence provided by the applicant’s family friend but was not satisfied that it added anything or lent any credibility to the applicant’s claims, particularly as he was unable to provide any information as to why people who came to the applicant’s house while he was visiting for dinner might have been asking for the applicant or what their intentions were;
e)consequently, the Tribunal did not accept that the applicant, or any members of his family, had been a member of or involved with the Future Movement party. The Tribunal did not accept that the applicant had any political problems or disagreements with members or supporters of El Marada or the Franjieh group, that his problems with C1, C2 and C3 had a political dimension or that the incident on 24 April 2008 was politically motivated;
f)based on the police report the Tribunal accepted that the applicant’s immediate family was involved in a long-running dispute with another family faction but found that this was of a private and/or familial nature which related to the division and ownership of agricultural land. The Tribunal accepted that the applicant relocated to Tripoli and maintained a low profile after the events of 24 April 2008 but was not satisfied that his fears in this respect were based on a Convention reason;
g)the Tribunal did not accept that the applicant had been harmed in the past for reasons of his political opinion or that if he were to return to Lebanon there was a real chance that he would be harmed for reasons of his actual or imputed political opinion, race, religion or nationality;
h)the Tribunal found that the applicant’s fears were not essentially and significantly for the reason of his membership of his branch of the family, noting that:
i)the applicant did not claim to have ever been seriously harmed by any member of the rival branch of the family at any point prior to or after the April 2008 incident;
ii)there was no evidence before the Tribunal that any other member of the applicant’s immediate family had ever been harmed by the rival family faction either before or after the events in April 2008;
iii)the hostility towards the applicant flared as a result of his traffic-related actions in April 2008 and significantly intensified after C1’s son was killed; and
iv)the applicant was the only member of his family who was placed in protective custody and who had to relocate away from the village;
i)in light of the Tribunal’s finding that the dispute between the applicant’s immediate family and the other family faction was not Convention-related, the Tribunal disregarded, pursuant to s.91S of the Act, the applicant’s immediate family’s fear of persecution from the other family faction and was satisfied that the applicant would not have feared persecution had his immediate family’s fear never existed. Consequently, it disregarded the applicant’s fear of future harm because it flowed from his family’s non-Convention related fear and found that the applicant did not have a well-founded fear of persecution arising from the dispute for reasons of his membership of a particular social group, being his family;
j)the Tribunal was not satisfied that the applicant’s fear that C2 and his brothers would target him because he had witnessed C2’s crime was essentially for a Convention reason, including his actual or imputed political opinion;
k)nor was the Tribunal satisfied that witnesses of crime in Lebanon constituted a particular social group for the purposes of the Convention with the result that it was not satisfied that the applicant’s fear of harm was for the reason of his membership or perceived membership of a particular social group; and
l)the evidence before the Tribunal suggested that the Lebanese police had acted promptly and professionally in investigating C3’s actions in digging up the road; had protected the applicant and others when C2 started shooting; had placed the applicant in protective custody; had carried out a thorough investigation into the death of C1’s son and were eventually successful in arresting C2 and bringing him to court. For these reasons, the Tribunal was satisfied that effective state protection would be available to the applicant were he to return to Lebanon.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1.The Tribunal misunderstood my claims.
2.The Tribunal failed to make a finding that the harm I suffer is for membership of a particular social group.
At the hearing the applicant also alleged that:
a)the Tribunal had a bad impression of him regarding his delay in making his application for a protection visa;
b)the Tribunal did not take the applicant’s witnesses’ evidence seriously;
c)the Tribunal did not take account of what had happened to him in Lebanon; and
d)the Tribunal incorrectly characterised the events giving rise to the applicant’s fear as a family issue rather than a political one.
Tribunal misunderstood the applicant’s claims
The Tribunal summarised the applicant’s claims in the following terms in para.114 of its decision:
The applicant claims that as a result of longstanding family and political disputes between his family and some extended relatives, a person belonging to the rival family faction was killed. Although the applicant was not responsible, he was blamed for the death of this relative. He fears being killed or seriously harmed if he were to return to Lebanon.
The evidence before the Tribunal and its reasons for decision have been summarised earlier in these reasons and they make it clear that although the applicant’s claims had more than one iteration these different allegations were identified, recognised and considered by the Tribunal. In particular and most importantly, the Tribunal considered the applicant’s ultimate characterisation of his claim which was that he feared persecution because of the different political affiliations of the two branches of his family. It also recognised the two different political bases advanced for the excavation of the road by C3. The Tribunal did not accept that the applicant’s ultimate iteration of his claim was truthful or accurate but before reaching that view it weighed the evidence which had been placed before it and did so in the context of the applicant’s claim as it was ultimately advanced. Specifically, the Tribunal contrasted the allegations which the applicant made to it with the allegations which he had made in his protection visa application and in his interview with the Minister’s department and preferred the latter which was to the effect that the harm he feared arose out of a family dispute which had no political overtones.
The Tribunal’s summary of the evidence and its reasoning satisfies me that it did not misunderstand the claims which the applicant made. To the contrary, it understood them but, having done so, it rejected them.
Membership of a particular social group
The allegation that the Tribunal failed to find that the harm which the applicant suffered was by reason of his membership of a particular social group was not particularised. However, when questioned at the hearing in these proceedings the applicant identified the relevant particular social group as being made up of the members of the Future Movement.
The Tribunal did not consider the applicant’s allegations of political involvement and fear of persecution in the context of Future Movement members being a particular social group. In this regard, the applicant did not suggest to the Tribunal that his alleged politics-based fears arose out of membership of a particular social group, nor is an unarticulated claim of this nature reasonably apparent from the applicant’s evidence and arguments to the Tribunal. Rather, he alleged that different political beliefs were a cause of friction between the two branches of his family. His evidence was that the friction and disagreement arose out of his particular beliefs or those of his family, he did not say that it arose out of his membership of a particular social group and, specifically, out of his membership of a particular social group made up of Future Movement members.
But in any case, the Tribunal’s findings on the issue of the applicant’s political involvement dispose of this allegation; it did not accept that the applicant or any member of his family was a member of or involved with the Future Movement. That being so, the fact that the Tribunal did not consider this aspect of the applicant’s claims in the context of his membership of the postulated particular social group does not amount to jurisdictional error.
Tribunal had a bad impression of him
The applicant submitted that his difficulties with the Tribunal probably started when it expressed concern about how long it had taken him after his arrival in Australia to make an application for a protection visa. The essence of this submission is that the Tribunal misunderstood the significance of the timing of his application and its relationship to the expiry of the visa which he held when he arrived in Australia. Seen in this way, the allegation is really one which challenges the inferences which the Tribunal drew from the facts in question.
The factual inferences which the Tribunal draws from the evidence are not matters which are reviewable in judicial review proceedings such as these. The Court’s role is to determine whether the Tribunal has applied proper procedures and properly applied the law in reaching its decision, not whether the factual conclusions which it reached were correct ones or ones with which the Court itself agrees. For this reason, the applicant’s allegation does not disclose a basis upon which the Court may set the Tribunal’s decision aside.
Tribunal did not take the applicant’s witnesses’ evidence seriously
As the summary of the Tribunal’s decision set out earlier in these reasons discloses, the Tribunal did not believe the evidence given by the applicant’s uncle and did not consider the evidence of the applicant’s family friend to be of any assistance in resolving the issues before it. However, before reaching these conclusions, the Tribunal gave proper consideration to the evidence which those two individuals gave; it understood the substance of their evidence and its potential significance but concluded, for the reasons which it gave, that one was not to be believed and the other was of no assistance. The Tribunal did treat their evidence seriously; the fact that it did not give that evidence the weight which the applicant would wish does not indicate to the contrary.
Tribunal did not take account of what had happened in Lebanon
The applicant did not submit that the Tribunal’s decision record failed to accurately set out the evidence which had been placed before it and there is no reason to conclude that that summary was inaccurate or incomplete. Nor did the applicant point to any aspect of that evidence and submit that the Tribunal failed to consider it when reaching its decision on the review application. In fact, far from it not taking into account the events in Lebanon prior to the applicant’s travel to Australia, the Tribunal discussed those events, in the various ways portrayed by the applicant, in a manner which demonstrated that it understood their significance in the context of the claims which the applicant made. Consequently, on the facts, this allegation cannot be made out.
It may be that the applicant alleges that the Tribunal’s conclusion on the facts as presented was incorrect and that this represented a failure to have a proper appreciation of the evidence. If this is what the applicant means by this allegation, it does not provide a basis to set the Tribunal’s decision aside because it is, again, a challenge to the Tribunal’s factual findings and its conclusion on the merits of the application overall. Absent vitiating conduct on the part of the Tribunal, which is not present in this case, such matters are not ones susceptible to review in proceedings such as these.
Incorrect characterisation of events as a family issue
Similarly, the allegation which the applicant made at the hearing, that the Tribunal characterised the events about which he gave evidence as ones which disclosed a dispute of a domestic nature rather than one grounded in a political disagreement, is one which challenges the conclusions which the Tribunal drew from the evidence before it. The Tribunal’s conclusion that such fear as the applicant had arose out of matters which had no political content was a factual conclusion and, for the reasons already given, is not reviewable by the Court.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 28 April 2011
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