SZQYE v Minister for Immigration

[2012] FMCA 754

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQYE v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 754

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Refugee Review Tribunal’s decision was affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 422B, 424AA, 425, 425A, 426, 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
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: SZQYE

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2847 of 2012

Judgment of: Emmett FM

Hearing dates: 11 May 2012 and 16 August 2012

Date of Last Submission: 16 August 2012

Delivered at: Sydney

Delivered on: 31 August 2012

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter in the Arabic language.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 13 December 2011, is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,240.

NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2847 of 2012

SZQYE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 23 November 2011 and handed down on 24 November 2011.

2. The applicant claims to be a citizen of Lebanon.

3. 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, a summary of the decision of a delegate of the first respondent, and a summary of the Tribunal’s review and decision.

Background

1. The applicant is a citizen of Lebanon who first arrived in Australia on 26 November 2007 on a tourist visa and then returned to Malaysia on 16 February 2008. The applicant then applied for a Prospective Marriage (Temporary) visa on 15 April 2008, which was later approved, and consequently the applicant arrived in Australia on 17 February 2009, and has since remained in Australia.

2. On 3 November 2009, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act. Supporting documentation was provided with the application.

3. On 18 February 2010, the Delegate refused the applicant’s request for a protection visa.

4. On 3 March 2010, the applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 23 November 2011, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 13 December 2011, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. 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.

2. 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”).

3. 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

4. Pursuant to s.91R(1) of the Act, a Convention related reason must be the essential and significant reason for the persecution, must involve serious harm to the person and involve systematic and discriminatory conduct. Section 91R(2) of the Act expands on the notion of persecution and serious harm when considering Art.1A(2) of the Convention.

The applicant’s claims

1. The applicant claimed to fear persecution in Lebanon from the Syrian security forces and their agents in Tripoli because he withstood attempts by the “Syrian Regime” to infiltrate the Electricity Commission in Tripoli. The applicant was the head of his department and the team leader in charge of electricity installations in the city of Tripoli. The applicant claimed that he was approached to facilitate the Syrian Regime stealing from the Electricity Commission. The applicant said that he reported the approach to his manager who refused to meet with him. The applicant said from then on he received threats on the telephone and “through some intermediaries”. The applicant claimed that those who threatened him lived in an area in Tripoli called Jabal Mohsen.

2. The applicant attended an interview with a delegate of the Department on 12 February 2010 during which he expanded upon his claims. He stated that the general manager to whom he had reported the approach was also involved in corrupt activity. The applicant also told the delegate that he had been informed by someone in the Lebanese Secret Service that his name is on a Syrian hit list. The applicant stated that he believed it was not safe for him to return to Lebanon as “the list is still operational” and Syrian forces still have an extensive presence in Lebanon.

3. The applicant also claimed that his difficulties commenced when he pointed out to the Electricity Commission the dangers of placing wooden poles with unearthed metal poles which had occurred one to two years prior to his resignation in 2001.

The delegate’s decision

1. On 12 February 2010, the applicant attended an interview with the delegate.

2. The delegate was not satisfied that the persecution feared by the applicant was Convention related.

3. On 18 February 2010, 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.

The Tribunal’s review and decision

1. On 3 March 2010, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 11 March 2010, the Tribunal wrote to the applicant inviting him to appear before it on 14 April 2010 to give evidence and present arguments relating to issues arising in his case.

3. The Tribunal noted that it had before it the Department’s file relating to the applicant.

4. The Tribunal summarised the applicant’s claims in his protection visa application and the applicant’s evidence given to the delegate at the interview on 12 February 2010.

5. The Tribunal noted that the applicant told the delegate that his relationship with the woman who had sponsored him to come to Australia as a prospective spouse had broken down.

6. The Tribunal then identified the evidence given by the applicant at the hearing before it and noted particular exchanges it had with the applicant about his evidence.

7. The Tribunal put to the applicant various concerns it had about his evidence and noted his responses. For example, he said that he told an officer at the Embassy in Lebanon that he could not return to Lebanon because he had a problem with Syrian Intelligence. The Tribunal put to the applicant that there was nothing in the interview with the delegate, or in the Department file to suggest that he had had this conversation.

8. The Tribunal told the applicant that it would give the applicant information that would be the reason, or part of the reason, to affirm the decision under review. The Tribunal told the applicant that it would explain the information to the applicant so that he understood why it was relevant to the review and would explain the consequences of the information being relied upon. The Tribunal noted that it told the applicant that it would ask him to comment on and respond to the information and that, if he wished additional time to comment or respond to the information, he could ask the Tribunal to adjourn the review for additional time.

9. The Tribunal then put to the applicant that it was difficult to accept that he had been persecuted in Lebanon as a result of anything he may have said or done while working for the Electricity Commission in circumstances where he had left the Electricity Commission in 2001 but had not left Lebanon until 2004. The Tribunal also put to him various inconsistencies that were both internal and were inconsistent with records on the Department file.

10. The Tribunal then referred to a post hearing letter, dated 26 April 2010, in which the applicant sought to address various concerns put to him by the Tribunal during the hearing.

11. In a letter dated 24 August 2011, the applicant requested the Tribunal to contact Dr R who could give the Tribunal a telephone number to contact the Head of the Internal Security Department in Lebanon. The Tribunal wrote to the applicant on 29 August 2011 advising him that it did not intend to contact the Head of the Internal Security Department in Lebanon, as requested by the applicant.

12. The Tribunal accepted that the applicant was employed by the Electricity Commission and left in 2001 when he became concerned about corruption and interference from the Syrian intelligence with the Electricity Commission. The Tribunal accepted that the applicant had attempted unsuccessfully to talk to the general manager of the Electricity Commission and been threatened when he had refused to cooperate with those who were stealing from the Electricity Commission.

13. The Tribunal accepted that the applicant had lost various entitlements as a result of being forced to resign from the Electricity Commission but did not accept that there was a real chance that he would be persecuted as a result of anything he may have said or done while working for the Electricity Commission, if he was to return to Lebanon now or in the reasonably foreseeable future.

14. The Tribunal noted that it put to the applicant that the corruption problems with the Electricity Commission in Lebanon are notorious and well reported in the press in Lebanon. The Tribunal put to the applicant that it found it difficult to accept that he would have attracted the attention of the Syrian Intelligence because in 2003 he spoke for about four months at some public meetings in Tripoli about corruption in the Electricity Commission.

15. The Tribunal noted that the applicant agreed that everybody had known about the corruption problems within the Electricity Commission but said that no one would say anything. He said that he was the only person who had openly criticised Syria. However, the Tribunal found that the independent evidence before it demonstrated that the corruption in the Electricity sector in Lebanon was openly discussed in Lebanon, including the involvement of Syria in that corruption.

16. The Tribunal put to the applicant that it considered relevant that the applicant did not apply for refugee status in Malaysia or when he first came to Australia as a visitor in 2007.

17. The Tribunal noted that it considered the letter provided by the applicant from the Mayor of Tripoli stating that the applicant should avoid returning to Lebanon to avoid any danger from “internal and external parties”.

18. The Tribunal was not satisfied that the applicant was at risk in Syria because for about four months in 2003 he had spoken at some public meetings in Tripoli about corruption in the Electricity Commission. The Tribunal noted that the applicant said that if he was told to repeat what he said, he would not do so. The Tribunal acknowledged that if the applicant was prevented from speaking out by his fear of persecution that may amount to persecution in itself. However, the Tribunal did not accept that, if the applicant was to continue to speak out about corruption in the Electricity Commission as he had done in the past, there was a real chance that he would be persecuted by the Syrian Intelligence or any other person whom he may accuse of corruption or stealing.

19. The Tribunal also noted the applicant’s claim in his letter, dated 26 April 2010, that he had been disliked by other Muslims because of his open-minded attitude and his hatred towards Syria and Hezbollah. The Tribunal noted that in his letter, dated 4 August 2010, the applicant had said that where he had lived and expressed dissatisfaction with the Syrians, was an Alawite area belonging to Syria and that the Alawite people were spying on everyone, and that “those Alawite people are still spying on everyone who is against Syria and the Syrians”.

20. Whilst the Tribunal accepted that certain persons and journalists had been attacked because of their opposition to the influences of Syria and Hezbollah in Lebanon, it did not accept that the applicant’s situation was comparable. The Tribunal was not satisfied that the applicant would be persecuted in Lebanon by other Muslims, Alawite or people from Jabal Mohsen for reasons of his political opposition to the influence of Syria and Hezbollah in Lebanon if he was to return to Lebanon, now or in the reasonably foreseeable future.

21. Accordingly the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had he had the assistance of an interpreter in the Arabic language.

2. On 27 February 2012, 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.

3. 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.

4. At the commencement of the hearing on 11 May 2012, 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 in support of his application.

5. The applicant confirmed that he relied on the grounds contained in his application filed on 13 December 2011 as follows:

   “1. Refugee Review Tribunal committed an error of law.

   2. The decision is unfair.”

6. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of the application generally.

7. The applicant read the affidavit of Toufic Laba Sarkis, affirmed 24 July 2012, annexing a transcript of the Tribunal hearing. The applicant did not refer the Court to any particular part of the transcript despite being invited by the Court to do so. He was unable to explain to the Court the relevance of the transcript to the grounds of his application. Counsel for the first respondent did not refer to any issue that arose from the transcript. In the circumstances, I have not had regard to the transcript.

8. Ground 1 alleges that the Tribunal “committed an error”.

9. I accept the written submissions of the first respondent that the Tribunal’s decision record demonstrates that the Tribunal correctly understood the relevant legal principles and applied them to the facts as it found them to be. The Tribunal also properly considered the applicant’s individual claims and evidence and considered whether the applicant had a well-founded fear for a Convention reason if he were to return to Lebanon now or in the reasonably foreseeable future.

10. There is nothing on the face of the Tribunal’s record to suggest that there was any jurisdictional error in the conduct of its review or the making of its decision. The Tribunal complied with the statutory regime in the conduct of its review. It invited the applicant to come to a hearing in accordance with s.425 of the Act and explored the applicant’s claims with him at the hearing. The Tribunal put to the applicant matters of concern it had with the applicant’s evidence and noted his responses. The Tribunal considered all of the post hearing submissions made by the applicant but was ultimately not persuaded by them.

11. It was open to the Tribunal to decide not to take oral evidence by those requested by the applicant and the Tribunal’s decision on this request does not demonstrate an error that goes to the Tribunal’s jurisdiction. Pursuant to s.426(2) of the Act, an applicant may, within seven days of receiving an invitation issued pursuant to ss.425 and 425A of the Act, give the Tribunal written notice that the applicant wishes the Tribunal to obtain oral evidence from a person. Section 426(3) of the Act requires the Tribunal to have regard to the applicant’s wishes. However, the applicant’s request was made several months after the date of the invitation letter sent pursuant to s.425A of the Act. In any event, the Tribunal had regard to the applicant’s request.

12. The Tribunal’s findings were open to it on the material and evidence before it and for the reasons it gave.

13. Ground 2 alleges that the Tribunal’s decision was unfair. Such a contention is not by itself capable of establishing jurisdictional error on the part of the Tribunal.

14. The Tribunal’s procedural fairness obligations are provided for in s.422B(1) of the Act and Div.4 of Pt.7 of the Act which is expressed to be an exhaustive statement of the natural justice hearing rule. The Tribunal complied with the statutory regime in the conduct of its review and the making of its decision.

15. The Tribunal found that the inconsistencies and implausibilities in the applicant’s evidence caused it concern in respect of the applicant’s claims, which ultimately, it did not accept. Further, the Tribunal put to the applicant at the hearing information that it considered may be the reason for affirming the decision under review and gave the applicant an opportunity to comment on that information. This information was put to the applicant in accordance with s.424AA of the Act by the Tribunal.

1. 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). Further, it is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

2. There was no information that amounted to a rejection, denial, or undermining of the applicant’s claims that required the Tribunal to otherwise give that information to the applicant for comment (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]).

3. The oral submissions made by the applicant in support of his application challenged the findings and conclusions of the Tribunal. Such complaints invite merits review of which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; 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).

4. Accordingly, neither of the grounds of the application is made out.

Conclusion

1. 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 put to the applicant independent country information before it and invited the applicant to comment upon it. 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.

2. 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.

3. 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.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  31 August 2012