SZQRU v Minister for Immigration - [2012] FMCA 492

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQRU v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 492

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal misunderstood applicant’s claim – whether Tribunal failed to consider an integer of the claim.

Migration Act 1958 (Cth), s.91R

Applicant:

SZQRU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2199 of 2011

Judgment of:

Raphael FM

Hearing date:

30 May 2012

Date of Last Submission:

30 May 2012

Delivered at:

Sydney

Delivered on:

30 May 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

DLA Piper

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2199 of 2011

SZQRU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Lebanon who arrived in Australia on 5 August 2010. He applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 27 October 2010. On 18 April 2011, a delegate of the Minister refused to grant him a protection visa. On 11 May 2011, the applicant applied for a review of the delegate’s decision from the Refuge Review Tribunal. He was assisted in the preparation of his application by an adviser, although the adviser did not attend the hearing which the Tribunal organised for the applicant. On 31 August 2011, the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 1 September 2011.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that he was an Alawi Muslim living in Tripoli who had run foul of the Arab Democratic Party, which was the predominant political force within his area, because he declined to actively support that party by taking up arms on its behalf.
The applicant told that there were serious internecine disputes in the Tripoli area between Salafist Sunnis and the Alawites and that all Alawite males were required to join the ADP and to assist it in the protection of that religious minority. The applicant told that he had informed the ADP leadership that he was not interested in taking up arms but after being threatened by them, agreed that he would become a nightwatchman which involved looking after property and carrying a gun, although he told that he did not know how to use it.
It would appear that most of the problems that the applicant spoke about to the Tribunal concluded in 2008, and that he had not been the subject of any problems with the ADP between August 2008 and the time that he departed for Australia in August 2010:
I asked the applicant why he thought he would be harmed if went back now, given that nothing had happened to him during the two years between August 2008 and his departure in August 2010. He said that it is true the party did not hurt him, because they thought he was committed. However, they treat people in a bad way and he was afraid that there would be future conflicts. Asked what he meant by saying the ADP does not treat people properly, he said that you have to accept the decision of the party whether you like it or not. For example, if men want to join the army or the police, they don’t like that. He commented that recently, however, he has heard that many young men have joined the police and the army and have moved away from the area. I asked whether this might be because Hezbollah is now in control of the government and he said maybe. He agreed that Hezbollah and ADP are allies. [47 CB180-181]
The applicant claimed that if he returns to Lebanon, the ADP would treat him as a coward and traitor and that he would be killed in front of his family. He told that the Alawites regard him as a Sunni and the Sunni regard him as an Alawite and so he fell between both sects. The Tribunal considered the applicant’s evidence in the light of independent country information between [57 and 62 CB182-186]. It concluded from that independent country information that the applicant’s claim that people in his neighbourhood who do not support the ADP are not respected:
However, there is no independent material before me which supports the applicant’s claim that the ADP kills, or seriously mistreats, people who refuse to join it. [66 CB187]
The Tribunal pressed the applicant for details of his claims of mistreatment but concluded that the evidence that he gave in this regard became less and less credible. The Tribunal indicated this to the applicant who later provided a series of statutory declarations from Lebanese persons of the Alawite sect living in Australia:
The applicant provided a number of written statements after the hearing which essentially supported his claims that the ADP is in total control of Jabal Mohsen and that the militia kills residents of the community who do not support it. However, little weight can be given to these statements. They are identical, which suggests they may not reflect the individual knowledge and experience of each of the authors. None of the statements contains information about when the authors were last in Lebanon themselves, or how they know the applicant. While they all state that what the applicant says about the ADP is true, the authors’ understanding of what the applicant has in fact said is not included in the statements; therefore, while they may well believe that what he has said is true, their statements cannot be regarded as specific corroboration of the information and testimony he has provided. Indeed, the written statements contradict the applicant’s own evidence in one important respect – while the applicant gave oral evidence that the ADP did not kill residents of Jabal Moshen during the 2008 fighting because everyone supported the party at that time, the statements all claim that there were killings during this period. [67 CB187-188]
The Tribunal preferred the applicant’s own evidence in relation to these matters and stated that the inconsistencies diminished the value of the independent evidence that he had provided.
The Tribunal’s conclusion was that as the applicant had managed to remain in his neighbourhood safely for two years after the end of the 2008 fighting, without suffering serious harm or mistreatment that could be considered persecution, it did not accept that he would so suffer should he return in the reasonably foreseeable future. It also did not accept his claim that he would be treated as a spy because the party had not agreed to him leaving and it did not accept that the lack of respect with which he might be treated because he had left the country amounted to serious harm for the purposes of the Act.
The Tribunal further considered the applicant’s claim that he would be at risk of being killed by the Sunni groups in Tripoli. It relied on independent country information to make a finding that:
[T]here is no independent evidence before me to support the applicant’s claims that an Alawi from Jabal Mohsen is at risk of persecution by Sunni groups from Bab-Tebbaneh, or that an Alawi from Jabal Mohsen is at risk of persecution by Salafists. There is no credible evidence to suggest there is a real chance that they would be targeted for discriminatory and systematic harm for reason of their religion or other Convention reason”. [70 CB 189]
The Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to Lebanon in the reasonably foreseeable future.
On 29 September 2011 the applicant filed an application with this court seeking review of the decision of the Tribunal. He was provided with legal assistance under the Minister’s scheme. His application contained two grounds, neither of which were amended following the receipt of that assistance. The first ground was, “The Tribunal misunderstood my claim”. There is no particularisation of this ground, but I gather from what the applicant told me today that it is a complaint that the Tribunal did not believe him on his oath. In actual fact, the Tribunal did not disbelieve the applicant, it merely concluded that the threats that he believed were being aimed at him were not as serious as he would have it.
The Tribunal generally accepted the situation of Alawites in Tripoli and, in particular, the predominance of the ADP but it found that because the applicant had lived peacefully in Tripoli for two years before he came to Australia, there was no reason to believe that his situation would change should he return. There is no jurisdictional error in coming to a conclusion of that type based, as it is, upon available evidence.
The second ground was, “The Tribunal failed to recognise my serious harassment which amounts to persecution”. Again, there is no particularisation but the fact is that the Tribunal did consider the harassment that the applicant complained about and analysed it in some detail before coming to the conclusion that it did not amount to serious harassment or persecution within the meaning of that word under s.91R of the Migration Act 1958 (Cth). The Tribunal accepted that the applicant would suffer some loss of face as a result of leaving the country and as a result of being a person who did not particularly wish to take up arms in the cause of the ADP, but it concluded that as he had not suffered from his refusal to take up arms previously, he was unlikely to do so now.
Again, the Tribunal’s finding was based upon the applicant’s own evidence, and upon the research that the Tribunal did of the independent country information. The Tribunal was entitled to rely upon that evidence, and any decision which it made upon the facts of the case that were based upon it cannot be impugned in this Court because of a differing opinion as to the validity of the information.
The applicant appeared before me today and told me that the RRT had taken into account information from media and newspaper sources and did not believe him even though he swore that everything he said was the truth. He told me that he had been threatened and that he believed that, should he return to the Lebanon, he would be killed. He accepted that he didn’t have any evidence to show what was happening in his region; he said that not even the Lebanese authorities knew that, he said that no one knows what is going on.
I explained to the applicant that these were matters which went to the merits of his case and not to whether or not the Tribunal acted lawfully in the manner in which it reached its decision. He explained that he was not a lawyer and he did not have a lawyer to assist him, which I accept. But he did have the benefit of a lawyer from the Minister’s scheme, and it would not be an unusual inference to draw that that lawyer concluded, as I have done, that there was no jurisdictional error in the Tribunal’s decision as no attempt was made to amend the application or to appear on the applicant’s behalf.
In all these circumstances, there is nothing more that I can do but to dismiss this application and to order that the applicant pay the respondent’s costs, which I assess in the sum of $3,500.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 22 June 2012