SZQJW v Minister for Immigration
[2012] FMCA 70
•8 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJW v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 70 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal’s decision affected by jurisdictional error – Tribunal’s reasons were reasonably open to it on what was before it – no jurisdictional error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 65(1)(b); 91R; 474; Pt.8 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) (2004) 144 FCR 1 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Abebe v Commonwealth of Australia (1999) 162 ALR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 |
| Applicant: | SZQJW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1357 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 February 2012 |
| Date of Last Submission: | 8 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2012 |
REPRESENTATION
| The Applicant: | In person with the assistance of an Arabi-Lebanese Interpreter |
| Appearing for the Respondents: | Katherine Hooper |
| Solicitors for the Respondents: | DLA Piper Australia |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1357 of 2011
| SZQJW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 31 May 2011 and handed down on 1 June 2011.
The applicant claims to be a citizen of Lebanon and of Muslim faith (“the applicant”).
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s protection visa application claims and the decision of the delegate of the first respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
The applicant arrived in Australia on 23 February 2008 having departed legally from Lebanon on a passport issued in his own name and a subclass 679 Sponsored Family Visitor visa. He applied for a subsequent subclass 676 Tourist visa, which was issued on 29 May 2008.
On 15 October 2010, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
On 14 February 2011, the Delegate refused the applicant’s application for a protection visa.
On 4 March 2011, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 1 June 2011 the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 28 June 2011, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
The Applicant’s application for a protection visa
The applicant provided a statement in support of his protection visa application in which he stated that he is a Muslim who claimed to have fallen in love with a girl whose parents would not accept him because of financial circumstances.
At the applicant’s interview with a delegate of the Department the applicant said that he claimed that his girlfriend’s family discovered them in her bedroom having an intimate relationship resulting in him being beaten by the brothers and uncles of the girlfriend and his hand was broken.
The applicant told the Tribunal that both come form a traditional area where families play a major role and both families are well known and powerful and any clash might have serious consequences.
He fears that if he returns to Lebanon he will be physically harmed or killed by the girlfriend’s family.
The Delegate’s decision
On 4 February 2011, the applicant attended an interview with the Delegate.
On 14 February 2011, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention on the basis that, inter alia, there was no Convention nexus.
The Tribunal’s review and decision
On 4 March 2011, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 4 April 2011, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on to give oral evidence and present arguments.
On 18 May 2011, the applicant attended the Tribunal hearing and gave evidence. The applicant provided further documents at the hearing being three purported summonses purportedly issued by the Ministry of Justice in Lebanon in respect of the applicant alleging “virginity membrane breakage”. The applicant also provided two statements allegedly from office bearers in his town warning him not to return to Lebanon.
The decision of the Tribunal is accurately summarised by the solicitor for the first respondent in her written submissions as follows:
“The RRT's decision
4. The RRT was not satisfied that the applicant had a well founded fear of persecution at the hands of his girlfriend's family. It considered that the family had no intention of inflicting further harm on the applicant. In so finding, the RRT reasoned that (at [49]):
4.1 The family had ample opportunity to find the applicant and harm him whilst he was in Lebanon.
4.2 The beating inflicted on the applicant was a single isolated event which was highly unlikely to be repeated.
4.3 The events took place at the end of 2007 (four years ago).
5. The RRT did not accept the applicant was the subject of any criminal proceedings as a result of a complaint made by the girlfriend's family (at [50]). It found three summonses submitted to it by the applicant were not genuine documents (at [52], for the reasons given at [52]-[54]).
6. The RRT found in the alternative that if the applicant were to be prosecuted, this would be pursuant to a law of general application and there was nothing to suggest that the law would be applied to the applicant in a discriminatory manner (at [55]).
7. The RRT was reinforced in its findings by the applicant's delay in applying for a protection visa (at [56]).
8. Finally, the RRT further found that the applicant's claims were not referable to a Convention reason and that the authorities would not withhold protection for a Convention reason (at [59]).”
The proceeding before this Court
The applicant was unrepresented before this Court, although had the assistance of an Arabic interpreter.
On12 July 2011, the applicant attended a directions hearing before me. I explained to the applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The applicant confirmed that he wished to continue with the application. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
At the commencement of the hearing, the applicant confirmed that he had not filed any amended application, evidence or submissions in support of his application and that he had no further documents to present to the Court this morning in support of his application.
The applicant confirmed that he relied on the grounds contained in an application filed on 28 June 2011 as follows:
“1. The RRT misunderstood my claim.
2. The tribunal failed to attribute my claim as a person belonging to a social group.
3. The Tribunal overlooked my well founded fear of persecution.”
Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Grounds 1 and 3
The applicant made the same submission for both grounds one and three, namely, that, the documents he had provided to the Tribunal were genuine, and were not properly considered by the Tribunal.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J at 451; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 per Heerey J at 348).
There was no transcript of the Tribunal hearing provided to this Court, nor did the applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 12 July 2011 the applicant was given an opportunity to file a transcript of the Tribunal hearing. The applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and exchanges it had with the applicant at the Tribunal hearing.
The documents to which the applicant referred, where documents provided by him to the Tribunal at the hearing. They were, as stated above, three documents purporting to be summonses issued by the Ministry of Justice in Lebanon requiring the applicant’s attendance on 17 September 2009, 15 March 2010 and 3 March 2011, for allegedly “virginity membrane breakage”.
Following its consideration of the documents, the Tribunal found the purported summonses to be fraudulent on the basis that they all had the same reference number, which appeared to refer to the year of issue, yet the first two documents were issued in 2009 and 2010.
The Tribunal’s decision record said that they were issued in “2009 and 2001”. However, the documents were purported to be issued in 2009 and 2010. The relevance for the Tribunal appears to be that both those years were before 2011, which the Tribunal found to be the same reference on each of three documents. In the circumstances, I am satisfied that the Tribunal’s decision record contains a typographical error when it said “2009 and 2001” instead of 2009 and 2010.
The Tribunal found that the applicant obtained those documents to improve his prospects of his success once his application was refused by the Delegate. In any event, the Tribunal was satisfied that the applicant’s claims to be the subject of a criminal investigation in relation to his sexual relationship was not credible and should be rejected. Further, the Tribunal found that, if the applicant was prosecuted in Lebanon for that reason, it would be pursuant to a law of general application and would therefore have no Convention nexus.
The applicant also gave to the Tribunal at hearing two statements asserting that the applicant remained at risk at Lebanon. Whilst the Tribunal accepted that the statement may be genuine, the Tribunal placed no weight as corroborating the applicant’s claims given that they were written in identical terms and were vague and non-specific in their references to the alleged dangers faced by the applicant.
It is a matter for the Tribunal the weight it chooses to give the evidence before it and its findings in respect of the documents provided by the applicant were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Accordingly, grounds 1 and 3 are not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to consider the applicant as belonging to a social group. When I asked the applicant to which social group he claimed to be a member, he said he “did not know”.
A fair reading of the applicant’s claims as reflected in the Tribunal’s decision record does not suggest that the applicant claimed to fear harm by reason of being a member of a particular social group which was subject to persecution. The applicant’s claims were confined to fear of harm from his girlfriend’s family because of his relationship with her and their disapproval of that relationship. A claim to fear persecution by reason of membership of a particular social group did not squarely arise on the evidence before the Tribunal (NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) (2004) 144 FCR 1 and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]).
As stated above, the Tribunal found that there was no nexus between the applicant’s fear of harm and any Convention related ground. In any event, the Tribunal was not satisfied that the applicant had a
well-founded fear of persecution in Lebanon. The Tribunal found that there is not a real chance that the girlfriend’s family would seek to inflict serious harm on the applicant now or in the reasonably foreseeable future, given that they had ample opportunity to do so before the applicant left Lebanon. As stated above, the Tribunal was not satisfied that the applicant is the subject of criminal proceedings in Lebanon because of his relationship, and that, even if he were, any prosecution would be pursuant to laws of general application and would therefore not be Convention related persecution.
Again, those findings were open to the Tribunal on the evidence and material before and for the reasons it gave.
Accordingly, ground 3 is not made out.
Otherwise, the applicant’s complaints about the Tribunal’s decision were more in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review, which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at 53-4; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 8 February 2012
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