SZQYE v Minister for Immigration and Citizenship
[2012] FCA 1340
•28 November 2012
FEDERAL COURT OF AUSTRALIA
SZQYE v Minister for Immigration and Citizenship [2012] FCA 1340
Citation: SZQYE v Minister for Immigration and Citizenship [2012] FCA 1340 Appeal from: SZQYE v Minister for Immigration & Anor [2012] FMCA 754 Parties: SZQYE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1378 of 2012 Judge: BESANKO J Date of judgment: 28 November 2012 Date of hearing: 26 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 30 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr D Godwin Solicitor for the Respondents: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1378 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQYE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
28 NOVEMBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of 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 1378 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQYE
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE:
28 NOVEMBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from an order made by the Federal Magistrates Court on 31 August 2012. That Court heard an application for constitutional writs directed to the Refugee Review Tribunal and it decided that the application should be dismissed. The appellant appeals from the order of dismissal. The first respondent to the appeal is the Minister for Immigration and Citizenship. The second respondent is the Refugee Review Tribunal and it has filed a Submitting notice.
The appellant is a citizen of Lebanon. He came to Australia from Malaysia on a tourist visa on 26 November 2007. He returned to Malaysia on 16 February 2008. He applied for a Prospective Marriage (Temporary) visa on 15 April 2008. That application was approved and the appellant arrived in Australia on 17 February 2009. He has been in Australia since that date.
On 3 November 2009, the appellant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship. On 18 February 2010 a delegate of the Minister refused the appellant’s application for a Protection visa. The appellant lodged an application for review of the decision by the Tribunal but, on 23 November 2011, the Tribunal affirmed the decision of the delegate not to grant a Protection visa to the appellant. On 13 December 2011, the appellant issued an application in the Federal Magistrates Court seeking constitutional writs directed to the Tribunal.
THE APPELLANT’S CLAIMS AND THE TRIBUNAL’S REASONS
The appellant sought protection so that he did not have to go back to Lebanon. In his application for a Protection visa, he stated that he had been the head of department, or team leader, at the Electricity Commission in Tripoli, Lebanon, and that as such, he was in charge of electricity installations in the city of Tripoli. He stated that a few months before he left Lebanon in 2004, he faced many serious difficulties from various people close to and engaged by the Syrian regime. Those people approached him and asked him to cooperate with them and facilitate their infiltration of the Electricity Commission in order to steal from the Commission. He stated that these people had an association with the Commission’s general manager and they were collaborating together to siphon funds out of the Commission. The appellant sought a meeting with the general manager, but this request was refused. The appellant started to receive threats, both on the telephone and through some intermediaries. The appellant stated that the same people who threatened him were currently active in an area in Tripoli, Lebanon, called Jabal Mohsen which had been receiving a lot of attention in the media of late.
The appellant stated that he began to plan to leave Lebanon and move to a safer place for his family. He considered that it would be very easy for Syrian intelligence, which was behind the threats, to carry out its threats at any time. His wife and children went to Malaysia. The appellant stayed behind to “sort out his affairs”. He was warned of the danger he was in by the police and told that they could not offer him full-time protection. A couple of weeks later, he received more frequent threats and he was contacted by the head of the Lebanese secret security forces in Tripoli, who advised him that he was in danger and that the security forces were unable to offer him full-time protection. The appellant said that he escaped from Lebanon because he feared for his life.
The Tribunal member accepted a good deal of the appellant’s account of events. He found that the appellant left his employment at the Electricity Commission in March 2001. He found that a year or a year and a half before the appellant left the Commission he became concerned about corruption and interference by the Syrian intelligence with the Commission’s work. The appellant identified three particular forms of interference. The appellant’s attempts to talk to the general manager about the problems were unsuccessful. He spoke to the police, but that was also unsuccessful. The Tribunal member found that the appellant refused to cooperate with the people who were stealing from the Commission and that, as a result, he was threatened. In addition, his department was merged, he was demoted and he was forced to resign, losing his long service leave and pension or superannuation entitlements.
The Tribunal member found that the appellant left Lebanon on 18 July 2004. After he had resigned from the Commission in 2001, he continued to run a factory. He employed over 15 people and the factory provided him with a good income. The Tribunal member found that the appellant still owns this factory and that if he returns to Lebanon he will reopen the factory.
The Tribunal member said that, although he accepted that the appellant considers that he was forced to resign from his employment at the Commission and that he lost various entitlements as a result, he did not accept that there was a real chance that the appellant would be persecuted as a result of anything he may have said or done while working for the Commission if he returns to Lebanon now or in the reasonably foreseeable future.
The Tribunal member found that in 2003 the appellant was approached to be involved in what was referred to as the Social Services Committee. He became responsible for electricity because of his expertise. He spoke at meetings held at a school. He was involved in the committee for about four months in 2003.
The appellant said that he received a warning that he was in danger. The Tribunal member found that the appellant stayed in Lebanon for over six or seven months after he had been warned that he was in danger and for at least four or five months after he claimed he was told that the Syrian intelligence needed to see him. The appellant did not claim that anything happened to him in that period. The Tribunal member found that if the Syrian intelligence was as powerful as the appellant claimed, and that if it had wanted to harm the appellant, it would have had ample opportunity to do so before he left Lebanon.
The Tribunal member found that the corruption and problems in the Commission were notorious and well reported in the press in Lebanon. In those circumstances, the Tribunal member said that he found it difficult to accept that the appellant would have attracted the attention of the Syrian intelligence by reason of the fact that for about four months in 2003 he spoke at some public meetings of about 100 to 150 people in Tripoli about corruption in the Electricity Commission (that is, at meetings of the Social Services Committee). The Tribunal member considered that the independent evidence before it demonstrated that corruption in the electricity sector, and the involvement of Syria in that corruption, was openly discussed in Lebanon.
The Tribunal member found that the appellant and his family were involved in a car accident in Lebanon at some time and that, as a result, his mother died and he and his family spent many months in hospital. He did not accept the appellant’s claim that the Syrian intelligence chased or followed his car, nor that he blamed the Syrian intelligence for the accident. The Tribunal member said that he considered it reasonable to expect that if the appellant had blamed the Syrian intelligence for his car accident then he would have mentioned that earlier.
The Tribunal member found that the appellant did not apply for refugee status in Malaysia, and that he did not apply for refugee status when he first came to Australia as a visitor in 2007. He considered that the appellant’s delay in applying for refugee status cast doubt on whether his claimed fear of being persecuted was genuine.
The Tribunal member did not accept that on the evidence before him if the appellant returned to Lebanon now or in the reasonably foreseeable future, there was a real chance he would be persecuted by Syrian intelligence by reason of the fact that for about four months in 2003 he spoke at some public meetings of about 100 to 150 people in Tripoli about corruption in the Electricity Commission.
The Tribunal member found that there were many people in Lebanon who were opposed to the influence of Syria and to Hezbollah. He accepted that some of these people had been assassinated and that journalists had been attacked. However, he did not accept that the appellant’s situation was comparable to such persons. He did not accept that there was a real chance that the appellant would be persecuted by other Muslims, or specifically by Alawites or people from Jabal Mohsen, for reasons of the appellant’s real or imputed political opinion and opposition to the influence of Hezbollah and Syria in Lebanon if he returned to Lebanon now or in the reasonably foreseeable future.
THE FEDERAL MAGISTRATE’S REASONS
The appellant’s application for constitutional writs in the Federal Magistrates Court contained two grounds. They were that the Tribunal committed an error of law and that the decision was unfair.
In her reasons (SZQYE v Minister for Immigration and Anor [2012] FMCA 754), Emmett FM set out the background, the legislative framework and details of the appellant’s claims. Her Honour then identified aspects of the proceeding before the Tribunal.
Emmett FM noted that the appellant was unrepresented before the Federal Magistrates Court. She noted that he had been referred to the Court’s legal advice scheme for free legal advice and that he had participated in that scheme and received free legal advice. He was also provided with contact details of legal services providers and interpreting and translation services in documents headed in his own language. Her Honour considered that the Tribunal member correctly understood the relevant legal principles and applied them to the facts as he found them to be. He also properly considered the appellant’s individual claims and evidence. Her Honour found that the Tribunal complied with s 425 and s 426 of the Migration Act 1958 (Cth) (“the Act”). She said that the Tribunal’s findings were open to it on the evidence and material before it, for the reasons the Tribunal gave. Her Honour did not consider that either of the grounds of the application had been made out. She expressed her conclusions in the following way:
60.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.
61.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.
ISSUES ON THE APPEAL
There are three grounds of appeal.
The first ground of appeal is as follows:
1.The Tribunal’s decision is affected by jurisdictional error as it failed to acknowledge my well-founded fear of persecution immediately before departing Lebanon for Malaysia.
This is an appeal from an order made by the Federal Magistrates Court, and the question is whether that Court erred. However, the appellant is unrepresented and I will read this ground as if it is alleged that the Federal Magistrates Court erred in that it should have held that the Tribunal committed a jurisdictional error in failing to acknowledge the appellant’s well-founded fear of persecution immediately before departing Lebanon for Malaysia, and as if acknowledge meant find or conclude that the appellant had such a well-founded fear.
It is convenient to consider the second ground of appeal with the first. It is (without correction) in the following terms:
2.The learned Federal Magistrate erred in accepting that the Tribunal found that the inconsistencies and implausibilities in my evidence caused it concern in respect of my claim. The Tribunal did not establish the inconsistencies and implausibilities therefore erred in law.
In her reasons, Emmett FM said (at [55]):
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.
Her Honour was correct to conclude that the Tribunal found inconsistencies and implausibilities in the appellant’s evidence. A number of matters have already been mentioned, but a summary of examples, with references to the paragraphs in the Tribunal’s reasons, are as follows:
(1)The appellant left the employment of the Electricity Commission in 2001, but he did not leave Lebanon until 2004. The Tribunal member said that that made it difficult to accept that he feared being persecuted in Lebanon as a result of anything he might have said or done while working for the Electricity Commission (at [99]).
(2)The appellant and his family were involved in a car accident in Lebanon at some time, and as a result, the appellant’s mother died and he and his family spent many months in hospital. The Tribunal member did not accept the appellant’s claim that Syrian intelligence traced or followed his car, nor that he blamed Syrian intelligence for the accident. The Tribunal considered it reasonable to expect that if the appellant had blamed the Syrian intelligence for this car accident he would have mentioned this earlier (at [104]).
(3)The appellant left Lebanon in July 2004. His wife and children had left four or five months before this and had gone to Malaysia. The appellant stayed in Lebanon for over six or seven months after being warned that he was in danger and for at least four or five months after he claimed that he was told that the Syrian intelligence needed to see him. The appellant did not claim that anything happened to him in this period. The Tribunal said that if the Syrian intelligence was as powerful as the appellant claimed, and if it had wanted to harm him, it would have had ample opportunity to do so before he left Lebanon (at [105]).
(4)The corruption and the problems with the Electricity Commission are notorious and have been well reported in the press in Lebanon. The Tribunal member said that in light of this he found it difficult to accept that the appellant would have attracted the attention of the Syrian intelligence because for about four months in 2003 he spoke at some public meetings of 100 to 150 people in Tripoli about corruption in the Electricity Commission (at [106]).
(5)The appellant did not apply for refugee status in Malaysia and he did not apply for refugee status when he came to Australia as a visitor in 2007. The Tribunal member found that this delay in applying for refugee status cast doubt on whether the appellant’s claimed fear of being persecuted was genuine.
It seems to me that the real question is whether, in reaching these conclusions, the Tribunal committed jurisdictional error. There is nothing to suggest that it did. The first and second grounds of appeal must be rejected.
The third ground of appeal is (without correction) in the following terms:
Her Honour Federal Magistrate Emmett overlooked the relevancy of the transcript as I previously and in the first hearing of 11 May 2012 explained and put my views on how my claim was misunderstood by the Tribunal.
In her reasons, Emmett FM said (at [47]):
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.
There is no apparent error in this approach. The third ground of appeal must be rejected.
I have considered the Tribunal’s decision more generally and there is no apparent jurisdictional error. Furthermore, the Tribunal complied with s 425 and s 424AA of the Act. In addition, it complied with subs 426(3) of the Act. The appellant’s notice under subs 426(2) of the Act appears not to have been given within the time limit prescribed therein. In any event, the Tribunal had regard to the appellant’s wishes as required by subs 426(3) of the Act. It decided not to contact the third party for reasons explained in paragraph 111 of its reasons.
CONCLUSION
The appeal must be dismissed and the appellant must pay the first respondent’s costs of the appeal.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 28 November 2012
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