SZQJW v Minister for Immigration and Citizenship

[2012] FCA 482

FEDERAL COURT OF AUSTRALIA

SZQJW v Minister for Immigration and Citizenship [2012] FCA 482

Citation:		SZQJW v Minister for Immigration and Citizenship [2012] FCA 482
Appeal from:		SZQJW v Minister for Immigration and Citizenship [2012] FMCA 70
Parties:		SZQJW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 306 of 2012
Judge:		FOSTER J
Date of judgment:		9 May 2012
Cases cited:		SZQJW v Minister for Immigration and Citizenship [2012] FMCA 70
Date of hearing:	9 May 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	22
Counsel for the Appellant:	The Appellant appeared in person (with the aid of an Arabic interpreter)
Solicitor for the First Respondent:	Ms E Baggett of DLA Piper Australia
Solicitor for the Second Respondent:	The Second Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 306 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQJW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	9 MAY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal.   

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 306 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQJW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	9 MAY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Lebanon who arrived in Australia on 23 February 2008.  He appeals from a judgment of a Federal Magistrate given on 8 February 2012 (SZQJW v Minister for Immigration and Citizenship [2012] FMCA 70) whereby the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) given on 31 May 2011.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the Minister), who is the first respondent, to refuse an application made by the appellant for a protection visa.  The appellant had lodged that application on 15 October 2010.  A delegate of the Minister refused the application on 14 February 2011.  On 7 March 2011, the appellant applied to the Tribunal for a review of that decision.

2. The appellant is a male citizen of Lebanon who is currently almost 30 years of age.  He stated that he is a Muslim from Dannieh, which is located in North Lebanon.  The appellant said that he fell in love with a young woman whose parents would not accept him because of his poor financial situation.  The appellant applied for a visa in Australia in the hope that he may be able to sponsor the young woman to emigrate to Australia.  Subsequent to the appellant’s arrival in Australia, his lover visited Australia to see her brother but also spent time with the appellant while here.  Her family learned that she had been seeing the appellant in Australia.  The appellant claimed that, when his lover returned to Lebanon, her family beat her and locked her in her room for two weeks without food.  The appellant claimed that he is afraid of returning to Lebanon as the young woman’s parents and relatives may harm him.  The appellant claimed his family and her family are powerful and that any clash between them might have serious consequences.

3. At the hearing before the Tribunal, the appellant stated that he had been beaten by the family of his girlfriend on one particular occasion about six or seven months before he left Lebanon and that he had thereafter remained in hiding prior to his departure.  According to his account, the beating was severe.  As a result he had suffered a broken arm and broken collarbone.  Although it is not entirely clear whether the Tribunal accepted that this event had occurred, the Tribunal nonetheless took the view that the incident was a one-off incident and was not likely to be repeated. 

4. The appellant claimed that Dannieh is a volatile place and that, in that region of Lebanon, Hezbollah is a powerful force.  In his visa application, the appellant also stated that he has a Christian mind and Christian values and will be harmed if required to return to Lebanon for this reason.  Before me today, he asserted that he had never said anything to that effect.  In oral submissions made to me at the hearing today, the appellant told me from the Bar table that the young woman for whom he has so much affection is presently in Australia.  Whether that is so or not makes no difference to the approach which I must take to the present appeal.  In order to succeed in the appeal the appellant must demonstrate error on the part of the Federal Magistrate.  The introduction of this particular fact into the equation, even if it be accepted, does not assist in that endeavour.

   THE REVIEW PROCEEDINGS IN THE TRIBUNAL

5. The appellant appeared before the Tribunal on 18 May 2011.  He gave an account of various occasions when he and his young lover had been discovered by relatives of hers in intimate circumstances which caused him to fear for his personal safety.  The appellant explained that he did not report these incidents to the police in Lebanon because he feared that the young woman’s family would start proceedings against him and otherwise cause him harm. 

6. At the hearing before the Tribunal, the appellant produced for its consideration three summonses which he asserted supported his contentions in respect of his relationship with his young lover.  The summonses appeared to contain charges against the appellant for an offence akin to the sexual assault of his lover.  The Tribunal had difficulty accepting that these summonses were genuine and ultimately decided that they were not.

7. The appellant raised with me today in oral submissions the way in which the Tribunal dealt with these summonses.  In that connection, he attempted to tender the documents before me but I rejected them for the reason that they are not relevant to the task with which I am concerned.  I endeavoured to explain to the appellant that the finding by the Tribunal that these summonses were not genuine was not a finding which, in the circumstances of the present case, I was entitled to investigate.  In any event, the Tribunal found, in the alternative, that, if the appellant were to be prosecuted in Lebanon for the offence specified in the summonses, such prosecution would be pursuant to a law of general application and that there was nothing to suggest that that law would be applied to the appellant in a discriminatory manner. 

8. As part of the reasoning which led it to reject the appellant’s visa application, the Tribunal took into the account adversely to the appellant the delay between the appellant’s arrival in Australia and the lodgment of his application for a protection visa (approximately two and three-quarter years). 

9. The Tribunal concluded that the harm which he claimed that he would suffer if he were obliged to return to Lebanon was not harm that would be incurred for a Convention reason.  The Tribunal also concluded that he had not sought police protection in Lebanon so that there was no basis for a finding that protection had been or would be denied to him.  The Tribunal concluded that there was no basis for a finding that the police in Lebanon would not protect him. 

10. For these reasons, the Tribunal refused the appellant’s protection visa application.

    THE APPELLANT’S APPLICATION IN THE FEDERAL MAGISTRATES COURT

11. On 28 June 2011 the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  The grounds relied upon by the appellant in his application to the Federal Magistrates Court were the following:

    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.

12. The Federal Magistrate considered each of these grounds in turn and did so comprehensively.  She noted that the Tribunal was not required to accept the appellant’s claims uncritically.  She also noted that the appellant had not relied upon any recordings of the Tribunal hearing and did not produce any transcript.  This meant that the Federal Magistrate was justified in relying (as she did) upon the Tribunal’s Decision Record as accurately recording the progress of the hearing before the Tribunal and the substance of the interview which had taken place at an earlier point in time with a delegate of the Department.

13. The Federal Magistrate observed that the question of the weight to be placed on evidence was quintessentially a matter for the Tribunal to determine and that it was open to the Tribunal to make the findings which it did make, based, as they were, largely on adverse credibility findings against the appellant. 

14. The Federal Magistrate noted that the appellant was unable to tell her what social group the Tribunal should have had regard to and she also observed that a fear of persecution based on membership of a social group did not present itself on the evidence before the Tribunal. 

15. The Federal Magistrate concluded that the Tribunal had not overlooked the appellant’s claim that he feared persecution and noted that the grounds for judicial review advanced by the appellant before her were more in the nature of a disagreement with the Tribunal’s decision on the merits than appropriate grounds for judicial review.

16. The Federal Magistrate dismissed the claim upon the basis that no jurisdictional error had been demonstrated.  Having dealt with the particular grounds advanced by the appellant before her, the Federal Magistrate concluded at [46] of her Reasons for Judgment as follows: 

    46.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.

    THE APPEAL IN THIS COURT

17. The appellant was dissatisfied with the decision of the Federal Magistrate.  For this reason, on 27 February 2012, the appellant filed an appeal in this Court.  The grounds of appeal sought to be advanced in the Notice of Appeal are in the following terms:

    1.The learned Federal Magistrate as well as the Refugee Review Tribunal failed to relate my claim to particular social group.

    2.Even though my circumstances are personal my fear of harm is convention related ground. 

    3.The documents (Statements submitted to the Tribunal) are genuine and should be considered beyond doubt to confirm the risk and harm I will face.

18. In his oral submissions made to me this morning, the appellant sought to challenge yet again the Tribunal’s finding to the effect that the three summonses produced by him were not genuine, sought to raise the additional matter of the presence of his young lover in Australia at the moment and sought, from time to time during the hearing and during the delivery of these Reasons for Judgment, to raise other matters of fact in support of his appeal.  None of these matters is truly relevant to this appeal. 

19. In my view, all of the grounds of appeal relied upon by the appellant in this Court, one way or another, amount to an attempt to obtain impermissible merits review of the Tribunal’s decision. 

20. In the present case, the Tribunal carefully considered all of the evidence and claims relied upon by the appellant and ultimately determined that it was not satisfied that the appellant was a person to whom Australia owes protection obligations. 

21. In my view, the Tribunal’s decision is not infected by jurisdictional error and the learned Federal Magistrate did not err in coming to the same conclusion.  The reality is that, in the present case, the concerns of the appellant, even if they be accepted, are matters personal to him and to his family situation.  These are not matters which justify the favourable interference by the Tribunal in those circumstances by granting a protection visa to the appellant. 

22. For all of these reasons I will dismiss the appeal with costs.  

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:       9 May 2012