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 father had received threats from Salafi/Sunni groups that they would kill the applicant;
b)if the applicant returned to Lebanon, the Alawite political party would require him to participate as a guard and he would be killed if he refused.
[9] CB 103
The Tribunal did not accept that the applicant had ever experienced or been threatened with harm for a Convention reason (at [51]).[10] The Tribunal rejected the entirety of the applicant's material claims based on inconsistencies and omissions it identified in the applicant's claims and evidence. The Tribunal also placed weight on the applicant's return to Lebanon, from Australia, in 2009 (at [58]).[11] The Tribunal found that any difficulties the applicant may experience as an Alawite were not sufficiently serious to amount to persecution (at [62]).[12]
[10] CB 116
[11] CB 118
[12] CB 118
These proceedings began with a show cause application filed on

23 September 2011. The applicant now relies upon an amended application filed on 10 November 2011. There is one ground in that application with five particulars:
The Tribunal fell into jurisdictional error in making a finding which was not open on the evidence before it.
Particulars
a.On 17 May 2010 the applicant lodged a Protection (Class XA) visa (“PV”) application. In that application he claimed “if I Go BACK To lebanon I have to Go BACK to waR TO KiLL. I [the applicant] don’t like to kill or wAR”. CB 18
b. The applicant did not get the opportunity to further explain this claim at an interview with the Delegate. The 4 February 2011 letter which invited the applicant to contact the Delegate to arrange an interview time was incorrectly sent to “8 Dunbier Avenue”, not “38 Dunbier Avenue”. CB 33 and 39. The Tribunal accepted this: CB 117[56].
c. On 1 April 2011 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 55. The application was accompanied by a hand written statement signed by the applicant. In that statement the applicant claimed, inter alia, that on return to Lebanon militia(s) will want to “arm” him and if he refuses he will “face death”: CB 70.
d. The Tribunal found that the applicant’s claim to fear harm because of a militia wishing him to join then was not raised in the applicant’s original PV application: CB116[52]-CB117[53].
e.This finding was not open on the evidence before the Tribunal
I received as evidence the court book filed on 21 October 2011.
The applicant made oral submissions today in which he explained his claims for protection and how those claims had been more fully developed over time. The applicant explained how his original protection visa application had been made without professional assistance and how he has been unable to afford the legal assistance that has been offered to him at various points. The applicant also drew attention to the fact that he did not have the opportunity to develop his claims at an interview before the Minister’s delegate.
The applicant is essentially concerned at the Tribunal’s adverse credibility finding based upon what the Tribunal saw as the failure to articulate key elements of his claims prior to the Tribunal’s review. At [52]-[55] of the Tribunal’s reasons for decision,[13] the Tribunal stated:
In the tribunal’s view, the applicant has formed a desire to live in Australia because he prefers it to Lebanon. He then made an application for protection in Australia without including any relevant details of the harm feared and only on the basis that there had been conflict in Lebanon in the past. He then completely fabricated a claim that his father was the subject of threats by a militia group which wished the applicant to join them before finally claiming to the tribunal in person that he feared harm from an Islamic group in Lebanon. In the tribunal’s view, the progress of this application indicates that the applicant does not in fact fear harm for any relevant reason should he return to Lebanon. In a desire to secure a visa he has simply created a story to justify such a claim without regard to the truth.
The original application includes no details on which the applicant would subsequently come to rely before the tribunal, either of harms because of a militia wishing him to join them, nor of death threats from a Sunni Muslim group. This is because those claims are not true While the applicant has claimed that his brother-in-law assisted him and they had no experience in such matters, the tribunal does not accept this as a plausible basis for the complete absence of reference to any of his later claims in the original application. Even if the applicant believed he could attend an interview, one could expect there would be some reference to his relevant political-religious activities and associations which are simply not present.
The Tribunal believes this conclusion is supported by the fact that in the written statement provided to the tribunal a completely different version of threats made to his father is provided to the applicant’s later oral evidence. The statement suggests multiple threats to his father from a militia which wished the applicant to join them. His later evidence suggests one direct threat from a Sunni group which simply wanted to kill the applicant because of past claimed activity. There was no reference to the militia group in the applicant’s oral evidence to the tribunal until he asked directly about the claims made in the written statement. Nor is there any reference in the written statement to any other threats by Sunni groups to his father.
In the tribunal’s view, the inconsistency identified here is so substantial and obvious that it positively shows the applicant is fabricating his claims. The applicant has claimed that his uncle wrote the statement but could offer no plausible reason why the claims would be so different. The applicant indicated that his uncle was aware of the nature of the difficulties he encountered but beyond questioning his uncle’s comprehension could offer no reason why the threats would be so differently expressed, Furthermore, the applicant then agreed with the claims as made in the written statement, suggesting that in fact the direct death threats from the Sunni group were for some reason deliberately not included so he could give evidence about them directly at hearing. In the tribunal’s view this is just a poor and implausible explanation for what is a fundamental undermining of his claims.
[13] CB 116-117
The applicant contends that there was no evidence for a finding made by the Tribunal, being that the applicant's claim to fear harm because of a militia wishing the applicant to join them was not raised in the applicant's protection visa application.
There are two real difficulties with that assertion. The first is 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. Secondly, it is, in my view very difficult to argue that there was no evidence at all before the Tribunal to justify its adverse credibility conclusions. The Minister’s submissions explain the Tribunal’s reasoning and draw attention to the difficulty in the applicant’s argument. While the Tribunal may perhaps have been ungenerous in its approach to the consideration of the applicant’s claims, on a legal analysis I agree with and adopt the Minister’s submissions.
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: SFGB v Minister for Immigration (2003) 77 ALD 402 at [19]; SZDFZ v Minister for Immigration (2008) 168 FCR 1 at [40]-[44]. [14] For the reasons that follow, the present is not such a case.
[14] Federal Magistrate Barnes recently considered the jurisprudence in some detail in SZOJV v Minister for Immigration [2011] FMCA 91

The applicant's protection visa application

In his protection visa application, the applicant said “I know if I go back to Lebanon I have to go back to war. To kill. I [applicant] don’t like to kill or war. I have never killed anyone. I don’t like to go back I love Australia and it is number one.”[15]
[15] CB 18

The applicant's claims to the Tribunal and the Tribunal's reasoning

In a written statement to the Tribunal the applicant said his father had been threatened by militias who were telling the applicant's father “they want to arm me as soon as I am back and if I refuse I face death.”[16]
[16] CB 70
The Tribunal, in its summary of the evidence before it, said relevantly:
In his application provided to the department, the applicant identifies himself as a 27 year old citizen of Lebanon and no other country. The application refers to fears arising from war and people dying in Lebanon. He feared losing his own life, having seen other die. He feared not being protected in Lebanon because even the police die every day…
In seeking review of the decision, the applicant provided a written statement indicating he had visited Australia to see his sister and three nieces. Just before his visa expired he called his father and realised his father was urging him not to return to Lebanon. His father was threatened by a militia in Lebanon. They wanted to arm the applicant as soon as he was back and if he refused he would face death. The applicant’s father left work due to their constant visits and he now sat at home. The applicant and his father knew that if the applicant refused to join them and be armed he would receive the same fate as friends who refused before him. The applicant was asked to join them in a mission to kill but he did not believe in killing. He believed in peace and hated violence. He was concerned for his father who was begging the applicant not to return. There was not Government or law to protect the applicant in Lebanon and he could not return to any nearby country because of circumstances there. The applicant referred to his circumstances in Australia and his happiness here. He wished to have his visa extended…
The applicant feared he would be killed if he returned to Lebanon. His father had been threatened by a Salafist group in Lebanon who said they wanted the applicant. This group as an Islamist party, similar to Al-Takfir and were Sunni. The applicant was Alawite. They wanted to kill the applicant because during the war of 2008 and 2009 they saw him in the area. The applicant used to work as an armed guard guarding the building of the Arab Democratic Party. The applicant was associated with that party through the Alawite Youth Movement of which he was a member from the end of 2006. He has the nickname Baha. He only worked a guard and the activity was compulsory. The applicant was forced to join the movement because every family was expected to provide somebody as a member…
The applicant was asked about the content of the written statement provided to the tribunal which indicated that he was fearful of returning to Lebanon because a militia group had threatened his father and wished to arm the applicant and would kill him if he refused. The applicant explained that his uncle has written the statement. The applicant had wanted to talk face to face about his problems. The applicant explained that he was not pretending about what happened in Lebanon or making up stories. The applicant had not wanted to tell the whole story in the letter but just wished to say he wanted to attend an interview.
The applicant indicated that the written statement referred to his involvement with the Arab Democratic Party and if he did not join them he would [be] seen negatively. The applicant was asked why he had not referred to this fear when asked by the tribunal at the haring about other things he feared. He indicated that he was waiting to be asked about this. He did not want to talk about [his] part because he thought the tribunal would say this was his party.[17]
[17] Tribunal decision [20], [23], [28], [34]-[35].
In the applicant’s post hearing submission, he relied in a fear of harm from both sources (being threats from the militia and threats from the Sunni Muslim group).
The Tribunal’s findings referred to above at [11] show that the Tribunal did not overlook a claim in the applicant's protection visa application. Read fairly and as a whole, the Tribunal’s overriding concern was with the manner in which the applicant’s evidence and claims evolved throughout the entirety of the progress of his application. The applicant’s protection visa application did not recite the same claims the applicant came to later rely on.
Specifically, the applicant’s protection visa application did not articulate clearly or at all a claim that the applicant’s father had received threats from militia groups that wanted to arm the applicant.
It was not inaccurate for the Tribunal to say that the applicant included no “relevant details” in his visa application of the claims he would later rely on. There were no such details in the visa application. Further, the Tribunal did not rely solely on the failure to include the militia claim in the applicant's protection visa application, in rejecting his application. Rather, the Tribunal relied on the developing nature of all of the applicant's claims.
I am not persuaded that there was no evidence before the Tribunal to support its conclusions. Whether the Tribunal should have drawn those conclusions goes to the merits of the applicant’s claims. Those merits are beyond the scope of this present proceeding.
The Court does not close its eyes to the reality of the current situation in the Levant. That reality is that the applicant is a member of a religious minority closely associated with the regime of Bashar al-Assad in Syria. The future of that minority is dependant upon the future of the Syrian regime and what might replace it. There are media reports of contingency plans made by the Israeli government to receive substantial numbers of Alawites from Syria and Lebanon should the Assad regime fall. That points to the real risk facing the Alawites in the event that a regime which is hated by a substantial part of the population in Syria and Lebanon collapses.
These are matters that could properly be taken into account by the Minister and his Department should they choose to re-examine the applicant’s circumstances on the basis of newer and better information.
I find that the applicant has not advanced an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“Federal Magistrates Court Rules”)
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with Court scale. The applicant did not wish to be heard on costs. I will order that 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.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 21 February 2012