SZOGI v Minister for Immigration and Citizenship

[2011] FCA 943

FEDERAL COURT OF AUSTRALIA

SZOGI v Minister for Immigration and Citizenship [2011] FCA 943

Citation:		SZOGI v Minister for Immigration and Citizenship [2011] FCA 943
Appeal from:		SZOGI v Minister for Immigration & Anor [2011] FMCA 277
Parties:		SZOGI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 651 of 2011
Judge:		REEVES J
Date of judgment:		19 August 2011
Date of hearing:	17 August 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	33
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr Pinder from DLA Piper
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 651 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	19 AUGUST 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of appeal filed on 18 April 2011 be dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 651 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	19 AUGUST 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 28 April 2011, dismissing an application for judicial review of a decision of the Refugee Review Tribunal.

   BACKGROUND AND PROCEDURAL HISTORY

2. The appellant is a citizen of Lebanon who arrived in Australia on 24 May 2009 on a Family Visitor visa.  This visa was valid until 24 August 2009.  On that date, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister for Immigration and Citizenship refused that application on 25 November 2009.  The delegate found that the appellant’s claims were not Convention related.

3. On 18 December 2009, the appellant applied to the Tribunal for a merits review of the delegate’s decision.  In its decision record dated 25 February 2010 (the first Tribunal decision) the Tribunal affirmed the delegate’s decision.  In that decision, the Tribunal found that the appellant seriously lacked credibility, particularly with regard to his claims of political persecution.  The Tribunal found that there was no mention of the political aspect of the appellant’s claims in his original protection visa application and that that element of his claim had first emerged at the first hearing before the Tribunal.  Because of this, the Tribunal concluded that any feud of a political nature within the appellant’s family was either fabricated, or seriously exaggerated.  Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia had Convention related protection obligations.

4. On 19 March 2010, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the first Tribunal’s decision. In his reasons for judgment published on 30 June 2010, Driver FM ordered a writ of certiorari quashing the first Tribunal decision and a writ of mandamus requiring the Tribunal to reconsider the appellant’s application according to law. In summary, Driver FM found that the Tribunal had not complied with s 426(3) of the Migration Act 1958 (Cth) (“the Act”) and, as a result, it did not have regard to the appellant’s wishes to have certain witnesses give evidence in support of his application.

5. A differently constituted Tribunal reheard the appellant’s application on 1 October 2010.  The differently constituted Tribunal received evidence from two witnesses, as well as evidence from the appellant.  At this hearing, the appellant attempted to address the Tribunal’s concerns about the fact that he had not mentioned the political aspect of his claims until the first Tribunal hearing.  He did this by making certain allegations about the conduct of the delegate’s interview.  The appellant claimed that he was not able to include the political aspect of his claim in that interview as he was either not given the opportunity to do so, or he was not asked about it.  In its decision record dated 23 November 2010 (“the second Tribunal decision”), the differently constituted Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant.

6. On 20 December 2010, the appellant applied to the Federal Magistrates Court for a judicial review of the second Tribunal decision.  Federal Magistrate Cameron heard that application on 12 April 2011 and delivered his decision on 28 April 2011.  The appellant has now appealed that decision to this Court.

   CLAIMS OF POLITICAL AND OTHER PERSECUTION

7. In its second decision record, the Tribunal set out the appellant’s factual background and claims in some detail.  Similarly, in his reasons for judgment, Cameron FM detailed the appellant’s claims:  SZOGI v Minister for Immigration & Anor [2011] FMCA 277 at [7]–[14]. Therefore, I consider it sufficient to simply summarise the main aspects of the appellant’s claims hereunder.

8. The appellant claimed that he had a well-founded fear of persecution by reason of his political opinion, and membership of a particular social group.  The appellant was born in Bqaasfrine, Lebanon on 1 December 1986 and is a Muslim.  Prior to his arrival in Australia, the appellant had lived in Bqaasfrine for his entire life.

9. The appellant claimed he was an active member of the Future Movement political group in Lebanon.  He also claimed that members of his family supported the El Marada political party which caused a significant rift within his family.

10. The appellant claimed that on 24 April 2008, a dispute within his family resulted in the shooting death of one of his family members.  The appellant was present at the time of the shooting.  As a result of this death, the appellant claimed that the father of the deceased blamed the appellant for the incident and threatened retribution for the death of his son.

11. The appellant claimed that, following the shooting, he was taken into protective custody by the police for a period of two months and released from that custody in about June 2008.  The appellant claimed that he gave evidence as a witness to the shooting incident in a trial that took place in “April before the applicant came to Australia”.  As a result of this testimony, the appellant claimed that his father had received letters threatening the appellant’s life should he return to Lebanon.  The appellant claimed that he believed those who have threatened him would be able to find him anywhere in Lebanon and he did not believe that the police would be able to protect him if were he to return there.

    THE TRIBUNAL AS SECONDLY CONSTITUTED AFFIRMED THE DELEGATE’S DECISION

12. In contrast to the first Tribunal decision, the second Tribunal decision traversed in some detail the issue as to whether the appellant could receive adequate protection in Lebanon.  The Tribunal concluded that Lebanese police had acted promptly and professionally in investigating the events surrounding the shooting incident and in protecting the appellant from harm during his two months of protective custody.  The Tribunal was therefore satisfied that effective State protection would be available should the appellant return to Lebanon.

13. Otherwise, the second Tribunal decision included a number of findings that were similar to the ones contained in the first Tribunal decision.  Essentially, the differently constituted Tribunal found that the appellant was not a credible witness and that he had fabricated, exaggerated and misstated evidence in order to achieve a favourable immigration outcome.

14. Importantly, the differently constituted Tribunal did not accept the appellant’s explanation about the absence of any mention of political persecution in his original application. Therefore, it did not accept that the appellant had fled Lebanon for fear of harm or persecution or that there was a real chance he would suffer harm or persecution if he were to return there. While it accepted that his family was in considerable conflict, it did not accept that this was politically motivated. It concluded that, even if the appellant’s fears of harm or persecution were “essentially and significantly for the reason of his membership of his branch of the family”, s 91R of the Act applied to require it to disregard this family-related fear of harm or persecution.

15. Accordingly, the differently constituted Tribunal concluded that the appellant was not a person to whom Australia had protection obligations under the Convention and affirmed the delegate’s decision.

    FEDERAL MAGISTRATE CAMERON FINDS NO JURISDICTIONAL ERROR

16. In his application for judicial review of the second Tribunal decision, the appellant raised the following grounds:

    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.

17. At [17] of the reasons for judgment of Cameron FM, his Honour summarised the claims the appellant made at the hearing before him as follows:

    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.

18. As to the first ground of review, Cameron FM found that the Tribunal had had regard to the appellant’s claims that he feared political persecution in Lebanon because of the political conflict between two branches of his family.  The Federal Magistrate also observed that the Tribunal had contrasted these claims with earlier claims made by the appellant.  Ultimately, his Honour was satisfied that the decision record of the Tribunal showed that the Tribunal had correctly understood the appellant’s claims and, having done so, decided to reject them.

19. Despite ground 2 of the application for review being vague and unparticularised, Cameron FM ascertained from questioning the appellant that he was claiming that he would suffer harm based on his membership of a particular social group, namely the Future Movement political group.  On this aspect, his Honour noted that the appellant had not submitted to the Tribunal that his fears arose from membership of a social group, but rather that they arose from a conflict within his family.  While this claim was not made before the Tribunal, the Federal Magistrate nonetheless found that the Tribunal had effectively disposed of it by its findings that neither the appellant nor any member of his family was a member of, or involved with, the Future Movement political group.  Thus, he concluded, no jurisdictional error was present in the Tribunal’s decision on this aspect.

20. The Federal Magistrate then proceeded to deal with each of the appellant’s claims (set out at [17] above) in turn. His Honour concluded that the allegations contained in a) and d) sought to dispute the factual findings of the Tribunal and were consequently unreviewable.

21. The Federal Magistrate also dismissed the allegations in b) and c).  His Honour held that the Tribunal plainly had considered the witnesses’ evidence seriously and had taken account of the appellant’s claims about the events occurring in Lebanon.

22. Accordingly, the Federal Magistrate dismissed the appellant’s application for judicial review.

    THE CONDUCT OF THE PRESENT APPEAL

23. On 16 May 2011 the appellant filed a notice of appeal in this Court which alleged that (without alteration):

    1.His Honour Justice Cameron as well as the Refugee Review Tribunal (the Tribunal) misunderstood my claim and erred in making a finding that the harm I suffered was not related to one of the refugee characteristics ie membership of particular social group.

    2.The Tribunal failed to take into account my political involvement.

24. At the hearing before me on 17 August 2011, the appellant appeared in person, unrepresented, but assisted by an interpreter.  Mr Pinder appeared as counsel for the first respondent.  In his brief oral submissions the appellant challenged the factual findings made by the Tribunal.  Mr Pinder was essentially content to rely upon the outline of written submissions that had been filed on behalf of the first respondent.

    CONSIDERATION

25. It is convenient to deal with the appellant’s two grounds of appeal in reverse order.

26. Ground 2 of the notice of appeal alleges that the Tribunal failed to take into account the appellant’s political involvement.  I consider this ground is without merit.  It is clear from the decision record of the Tribunal that it had regard to the appellant’s claims of political persecution.  Indeed, the Tribunal made a number of findings of fact regarding the appellant’s claimed political involvement, resulting in its finding that the shooting incident was not a result of any political conflict, but rather resulted from a family conflict.

27. These findings are squarely within the fact finding role of the Tribunal when conducting its merits review of a delegate’s decision and it is well-established that neither the Federal Magistrates Court, nor this Court, can review the merits of the Tribunal’s decision:  see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 292 and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].

28. It follows that no error has been demonstrated on the part of the Federal Magistrate, nor jurisdictional error on the part of the Tribunal on this ground and it must therefore be rejected.

29. Ground 1 of the notice of appeal contains, in essence, two separate elements:  first, that Federal Magistrate and the Tribunal misunderstood the appellant’s claims; and, secondly, that the Federal Magistrate and the Tribunal erred in finding that any harm the appellant suffered was not related to his involvement in a particular social group.

30. As to the first element, the appellant has not identified which of his claims the Federal Magistrate and the Tribunal misunderstood.  The Tribunal went to great lengths to set out the appellant’s claims and the various iterations of those claims that the appellant made at different points in the proceedings before it.  I cannot find any indication from the Tribunal’s decision record, nor from the Federal Magistrate’s reasons for judgment that either of them has not understood and properly considered the claims the appellant made.  This element has no merit.

31. The second element is similarly vague and unparticularised.  However, it appears to raise the same issue as the Federal Magistrate gleaned from the appellant on questioning, viz his claim about membership of the Future Movement political group.  This is further supported by the fact that the appellant said as much in his brief oral submissions before this Court.

32. If this is so, then I consider the Federal Magistrate was correct in the findings he made that the Tribunal “did not accept that the applicant or any member of his family was a member of or involved with the Future Movement” (see [2011] FMCA 277 at [23]). While this issue was not raised as such before the Tribunal (see at [19] above), it is clear from its decision record that the Tribunal made these factual findings and thereby incidentally disposed of the issue. Moreover, these findings were clearly open on the facts, and no error of law occurs simply by way of making a wrong finding of fact: Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20]. Finally, and in any event, these factual findings are not open to review in this appeal: see the cases set out at [27] above. It follows that this second element to ground 1 also has no merit.

33. For these reasons, the appellant’s appeal must be dismissed. I will hear the parties on the question of costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:       19 August 2011