SZSAQ v Minister for Immigration

[2013] FCCA 437

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSAQ v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 437

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether there was information that enlivened the obligations of Section 424A or Section 424AA of the Migration Act 1958 (Cth) - whether information was given to the applicant in accordance with Section 424AA of the Migration Act 1958 (Cth) - whether the Refugee Review Tribunal failed to consider whether there was a real chance that the applicant would suffer a real chance of persecution - whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8

Cases cited:
SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012)

Applicant: SZSAQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2332 of 2012

Judgment of: Judge Emmett

Hearing date: 3 June 2013

Date of Last Submission: 3 June 2013

Delivered at: Sydney

Delivered on: 3 June 2013

REPRESENTATION

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2332 of 2012

SZSAQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

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 dated 12 September 2012 and handed down on 13 September 2013 (“the RRT”).

2. The applicant claims to be a citizen of Lebanon and has a son who is a member of a political group known as Liberal Shiite Current.

3. The issues in this case are whether there was information that enlivened the obligations of Section 424A of the Act or Section 424AA of the Act and, if so, whether such information was given to the applicant at least in accordance with Section 424AA; and, whether the RRT failed to consider whether there was a real chance that the applicant would suffer a real chance of persecution from Hezbollah for any Convention reason if she returned to Lebanon in the reasonably foreseeable future. These issues are considered below in the context of considering whether the RRT’s decision is affected by jurisdictional error.

4. 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 and the decision of the delegate of the first respondent and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 23 October 2009 on a tourist visa and returned to Lebanon on 22 March 2010. The applicant returned to Australia on 31 August 2011, having departed legally from Lebanon on a passport issued in her own name and a tourist visa.

2. On 14 December 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship under the Act.

3. On 8 May 2012, a delegate of the first respondent refused the applicant’s application for a protection visa.

4. On 17 May 2012, the applicant lodged an application for review of the delegate’s decision by the RRT.

5. On 12 September 2012, the RRT affirmed the decision of the delegate not to grant a protection visa.

6. On 17 October 2012, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:

   “1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.

   2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).

   3. Section 36(2)(a) of the Act provides that:

   (2)  A criterion for a protection visa is that the Applicant for the visa is:

   (a)   a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

   5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:

   owing to 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, is unable or, owing to such fear, is unwilling to return to it.

   6. Section 36(2)(aa) of the Act provides that:

   (2)  A criterion for a protection visa is that the applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

   7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

   8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:

   424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite applicant to appear

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.

   10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”

The applicant’s application for a protection visa

1. The applicant provided a statement in support of her protection visa application in which she stated:

   a)The district where the applicant lives is under the domination of Hezbollah. The applicant’s husband and sons are not supporters of Hezbollah. The applicant has a son who is affiliated with another party called the Liberal Shiite Current (“LSC”).

   b)The applicant’s house was damaged in 2006 during the war with Israel. After the war was over, Hezbollah compensated all the surrounding houses and the applicant’s house was left out because her family are not considered to be supportive of Hezbollah.

   c)In 2007, the applicant’s son became an active member of the LSC.

   d)In May 2011, a group of men came to the applicant’s home asking for her son who was not at home. She warned him to stay away, which he did for nearly two weeks. On the evening he returned home, the group of men returned and asked for her son. Her son managed to escape.

   e)The applicant was subsequently harassed by this group of men. Her house was stormed and furniture was broken.  She did not tell them where her son was because she did not know.  

   f)The applicant travelled to Australia to visit her daughter. The applicant’s son phoned her before she left and asked him to get his passport ready for him. The applicant placed her son’s passport in a secret place with a letter written by the applicant criticising Hezbollah and its leader.

   g)On 20 October 2011, the applicant received a phone call from her husband in Lebanon telling her that Hezbollah has stormed the house and searched every where until they found the passport and her letter.

   h)The applicant fears that if she returns to Lebanon, she will be killed because of the words she wrote in the letter.

The delegate’s decision

1. On 1 May 2012, the applicant attended an interview with the delegate.

2. On 8 May 2012, 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.

3. The delegate found the applicant’s evidence not to be credible and was not satisfied that the applicant has a political profile or that Hezbollah would target her if she returned to Lebanon. The delegate found that the applicant has not come to the adverse attention of Hezbollah for any reason.

The RRT’s review and decision

1. On 17 May 2012, the applicant lodged an application for review of the delegate’s decision by the RRT.

2. On 17 July 2012, the RRT wrote to the applicant informing her that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 16 August 2012 to give oral evidence and present arguments.

3. On 16 August 2012, the applicant attended the hearing with her migration agent and both gave evidence to the RRT.

4. The decision of the RRT is accurately summarised by the solicitor for the first respondent in written submissions as follows:

   “13. In a decision dated 12 September 2012, the Tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa: CB 98-113.

   14. The Tribunal found that some elements of the applicant’s claims were truthful and some were “overstated or exaggerated”: CB 110, par 72. The Tribunal was prepared to accept that the applicant and her family did not support Hezbollah and were known to hold such a political opinion in their area of Bourj Al Barajneh, which was an area under Hezbollah control. The Tribunal was also prepared to accept that Saleh joined the Free Shia Movement in 2007 but did not accept that he occupied a particular role or position in the party: CB 111, par 73.

   15. The Tribunal was also prepared to accept that unknown men, who the applicant believed were members of Hezbollah, came to her home looking for Saleh in May 2011, they returned some time later and Saleh managed to escape. The Tribunal also accepted that the applicant “was treated without respect and pushed aside” when the men were looking for her son: CB 111, par 74.

   16. The Tribunal did not accept, however, that Hezbollah again visited the applicant’s home three months later in October 2011 or that they located Saleh’s passport and an incriminating letter written by the applicant. Accordingly, the Tribunal did not accept that the applicant was now of adverse interest to Hezbollah. Nor did the Tribunal accept that Hezbollah had threatened that they wanted the applicant “dead or alive”: CB 111-112, par 77. In support of this finding, the Tribunal noted that the applicant’s family members continued to reside together in the family home: CB 112, par 78.

   17. Whilst accepting that her son was being sought by unknown men believed to be Hezbollah, the Tribunal did not accept that the applicant was of interest to those men or to Hezbollah more widely. In support of this finding the Tribunal relied on accepted independent evidence that failed to support a finding that Hezbollah routinely targeted or harmed individuals affiliated with opposing Lebanese groups. The Tribunal also noted that despite not supporting Hezbollah, the applicant and her family had lived without suffering any harm up until the events of 2011: CB 112, par 80.

   18. The Tribunal accepted that the family did not receive compensation after their home was damaged in 2006 but found that as the house was habitable and the family continued to reside there at all times, the harm did not amount to persecution: CB 112, par 79. 

   19. The Tribunal found further that the applicant had not suffered serious harm in the past because she was not a supporter of Hezbollah and was not satisfied that she faced a real chance of harm in the future for reason of her political opinion or imputed political opinion: CB 112, par 81.

   20. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution and did not satisfy the requirements of s 36(2)(a): CB 112-113, pars 81-82. The Tribunal also found that there was not a real risk that she would suffer significant harm if she was removed from Australia to Lebanon: CB 113, pars 83-84.”

5. The RRT concluded that the applicant would not suffer any significant harm as defined in s.36(2A) of the Act and s.5(1) of the Act. Accordingly, the RRT was not satisfied that there are substantial grounds for believing that, as a necessary and a foreseeable consequence of the applicant being moved form Australia to Lebanon, there is a real risk that she will suffer significant harm and therefore is not a person with protection obligations under s.36(2)(aa) of the Act.

The proceeding before this Court

1. The applicant was represented before this Court by his solicitor, Mr Ray Turner.   

2. Mr Turner confirmed that the applicant relied on grounds contained in an amended application, filed on 27 May 2013. By consent, leave was granted to rely on the grounds in the amended application. Those grounds are as follows:

   “1. The Tribunal failed to carry out its Statutory Duty.

   Particulars

   a. The Tribunal relied upon information “that the founder of the free Shia Movement is himself spoken against Hezbollah” as part of the reason or affirming the decision.

   b. The Tribunal failed to give the Applicant written notice of the information, explain why it was relevant and give her tan opportunity to comment.

   2. The Tribunal failed to consider all the integers of the Applicant’s claims.

   Particulars

   a. The Tribunal accepted at para 74 that unknown men, whom the Applicant believed to be Hezbollah, came to her house and mistreated her.

   b. The Tribunal did not go on to consider whether this integer of her claims could amount to a well founded fear of persecution or significant harm only because it did not accept that a second visit took place in October 2011.

   c. The Tribunal found that the “treatment of the Applicant and her family, whilst discriminatory, does not amount to persecution” without considering whether such discrimination could amount to a well founded fear of significant harm.”

Ground 1 

1. Mr Turner submitted that the RRT failed to give to the applicant information that was part of the reason for affirming the decision under review in accordance with s.424AA of the Act. The information was identified by Mr Turner as information that the founder of the Free Shia Movement is himself an outspoken critic of Hezbollah.

2. In relation to that information, the RRT stated as follows:

   “The Tribunal put to the applicant that the founder of the Free Shia Movement is himself outspoken against Hezbollah. It seems that he and other outspoken critics are not targeted for harm as a matter of course by Hezbollah. The applicant’s adviser stated that the leader is a politician and therefore protected. The applicant continued that he may well suffer harm. Indeed she asserted that all members of the Free Shia Movement suffer as her son does. The Tribunal said that it has not read reports of this and put to the applicant that it would expect that if mistreatment of supporters was as she described it would have been reported. She said that she does not know and she cannot say if the leader is protected.”

3. Mr Turner referred to the RRT’s finding that “the applicant, whilst not a supporter of Hezbollah has not suffered serious harm from Hezbollah for this reason in the past.” In support of that finding, the RRT noted that it put to the applicant, at the hearing, independent evidence that did not support a finding that Hezbollah routinely targets or harms individuals who are affiliated with opposing Lebanese groups. The RRT noted that it put to the applicant that there were no known reports of reprisals by Hezbollah against individuals with affiliation to a particular Lebanese group.

4. The RRT noted the applicant’s advisor’s response to the information that the leader of Hezbollah is a politician and therefore protected. There is nothing in the RRT’s decision record to suggest that this statement by the applicant’s advisor was not accepted by the RRT.

5. In the circumstances, the information relied upon by the applicant as enlivening any obligation under section 424AA of the Act is not made out, as the information relied upon by the applicant did not form part of the reason of the RRT affirming the decision under review. Accordingly Ground 1 is not made out

Ground 2

1. Mr Turner submitted that Ground 2 contended that the RRT had failed to consider whether there was a real chance of future harm if the applicant returned to Lebanon in light of the RRT’s finding that past harm suffered by the applicant and her family, “whilst discriminatory does not amount to persecution”. However, that finding related to the failure to pay compensation to the applicant’s family for damage to their home in 2006. It was open to the RRT to find that the failure to pay compensation did not amount to persecution for the reasons it gave.

2. Otherwise, the RRT found that Hezbollah did not have an ongoing interest in the family and did not continue to threaten and harass them because of the activities of the son. The RRT found that Hezbollah did not maintain an interest in the applicant on account of her son and did not accept that she would be harassed in an effort to extract information about her son. Those findings were also open to the RRT on the evidence and material before it and for the reasons it gave.

3. A fair reading of the RRT’s decision record makes clear that those findings formed part of the RRT’s reasons for its finding that there is not a real chance that the applicant will suffer serious harm amounting to persecution from Hezbollah for the reasons claimed, if she returned to Lebanon in the reasonably foreseeable future.

4. In the circumstances, the RRT dealt with all integers of the applicant’s claims and made findings that were open to it.

5. To the extent that Ground 2 is capable of suggesting that the applicant was contending that the RRT failed to comply with Section 36(2)(aa) of the Act, Mr Turner made clear on more than one occasion that there was no such contention.

1. I accept the submission of the first respondent that the applicant did not claim that as a necessary and foreseeable consequence of being removed from Australia, she would suffer significant harm because her family had not received compensation when their home was damaged in 2006. Neither did the applicant claim that she would protest against the lack of compensation and be targeted by Hezbollah for that reason.

2. In the circumstances, there were no claims squarely raised by the applicant that Australia has protection obligations under Section 36(2)(aa) of the Act beyond the claims made by the applicant in support of her claim to have a well founded fear of persecution for a Convention reason. As stated above, those claims were rejected in findings that were open to the RRT on the evidence and material before it and for the reasons it gave.

3. Accordingly Ground 2 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant and her advisor at a hearing; and, had regard to all material provided in support, including a post hearing submission by the applicant’s advisor. The RRT put to the applicant and her advisor matters of concern and noted the responses. The RRT also put to the applicant and her advisor independent country information before it. The RRT also identified independent country information to which it had regard. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The RRT’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 thirty nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  3 June 2013