SZQRL v Minister for Immigration - [2012] FMCA 89

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRL v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 89

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and religious persecution in Lebanon – applicant not believed – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)

Applicant:

SZQRL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2154 of 2011

Judgment of:

Driver FM

Hearing date:

13 February 2012

Delivered at:

Sydney

Delivered on:

13 February 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Hooper
DLA Piper

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2154 of 2011

SZQRL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 24 August 2011. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Lebanon and made claims of protection because of a fear of political, religious and ethnic conflict. The following statement of background facts relating to the applicant’s claims and the Tribunal’s decision on them is derived from the Minister’s written submissions filed on 6 February 2012.
The applicant is a male citizen of Lebanon. The applicant arrived in Australia on 23 April 2010 and applied for a protection visa on 17 May 2010.[1] The Minister's delegate refused that application on 2 March 2011[2] and the applicant sought review by the Tribunal.[3] The applicant attended a hearing before the Tribunal on 9 August 2011,[4] at which determinative issues were traversed. The Tribunal affirmed the decision under review refusing to grant the applicant a protection visa.[5]
[1] Court book (“CB”) 1
[2] CB 43
[3] CB 55
[4] CB 83
[5] CB 100

The applicant's claims and the Tribunal's decision

As the Tribunal observed, the applicant's claims developed over the course of the visa application and review.[6]
[6] CB 117 [52]
The applicant claimed in his protection visa application that he preferred Australia over Lebanon because of the war in Lebanon.[7]
[7] CB 17-18
In a handwritten statement to the Tribunal, the applicant claimed his father had received threats from militias, who said they wanted to arm the applicant on his return to Lebanon and, if he refused, the applicant would face death. [8]
[8] CB 70
In his oral evidence and in a further typewritten submission to the Tribunal,[9] the applicant claimed in summary:
a)his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FMCA 89
Decision Date: 13 February 2012

CaseChat Overview and Summary

SZQRL has applied for a review of a decision of the Refugee Review Tribunal (the Tribunal), which affirmed a decision of the delegate of the Minister for Immigration and Citizenship not to grant the applicant a protection visa. The applicant, a citizen of Lebanon, claims to fear political, religious and ethnic conflict in his home country. The Federal Magistrates Court dismissed the applicant's application for judicial review. The applicant's claims for protection evolved over the course of his visa application and the subsequent review process. In his initial protection visa application, the applicant claimed that he feared returning to Lebanon because of the war there. In a handwritten statement to the Tribunal, the applicant claimed that his father had received threats from militias, who said they wanted to arm the applicant on his return to Lebanon and, if he refused, the applicant would face death. In his oral evidence to the Tribunal, the applicant claimed that if he returned to Lebanon, the Alawite political party would require him to participate as a guard and he would be killed if he refused. The Tribunal did not accept the applicant's claims, finding that they were inconsistent and that the applicant had not experienced or been threatened with harm for a Convention reason. The Tribunal also considered the applicant's return to Lebanon in 2009, from Australia, to weigh against his claims. The Tribunal found that any difficulties the applicant may experience as an Alawite were not sufficiently serious to amount to persecution.

The applicant has argued that the Tribunal erred in finding that the claim of militia wanting him to join them was not raised in the applicant's protection visa application. The Court found that the Tribunal's adverse credibility conclusion was based on a number of inconsistencies the Tribunal identified in the applicant's claims as they developed over time. The Court further found that it was difficult to argue that there was no evidence at all before the Tribunal to justify its adverse credibility conclusions. The Court agreed with the Minister's submissions that jurisdictional error may occur where the Tribunal makes an error of fact such that there is no evidence for a finding, where that particular finding was a critical step in the ultimate conclusion. However, the present was not such a case. The Court found that the Tribunal did not overlook a claim in the applicant's protection visa application, but rather was concerned with the manner in which the applicant's evidence and claims evolved throughout the progress of his application. The Court was not persuaded that there was no evidence before the Tribunal to support its conclusions and dismissed the application. The Court ordered that the applicant is to pay the Minister's costs and disbursements of and incidental to the application in the sum of $3,123.

Orders