SZTYU v Minister for Immigration
[2015] FCCA 1669
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTYU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1669 |
| Catchwords: MIGRATION – Application for review of Refugee Review Tribunal (Tribunal) decision – whether Tribunal wrongly relied on inconsistent evidence – whether Tribunal considered applicant’s supplementary evidence – whether Tribunal misunderstood the applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 424A |
| Applicant: | SZTYU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 530 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 September 2014 |
| Date of Last Submission: | 17 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Mr L d’Avigdor of Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 530 of 2014
| SZTYU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Lebanon, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.
The applicant’s claims for protection
Before the delegate, the applicant claimed he feared he would be harmed in Lebanon by Sunni fanatics because of his friendship with Alawites whom he met through his employment as a butcher.[1] His fear of harm was based on an incident that occurred in November 2012. The applicant claimed he was kidnapped, detained and tortured by Sunni fanatics, questioned about his work, his involvement in hiding Alawi people, and his support for the Syrian Alawi in Lebanon.[2] The applicant claimed the persons who kidnapped him took his car and cash, blindfolded him, beat him to the point that he still retains the scars on his body and threatened the applicant that he “will be ending up dead”.[3]
[1] Before the Tribunal the applicant appeared to claim he would be harmed because the applicant was believed to be providing weapons to Alawites.
[2] CB17-20
[3] CB20
The applicant fears returning to Lebanon because the Sunni fanatics who kidnapped him remain in Lebanon and that the Sunni fanatics believe the applicant supports the Alawi. The applicant claims the Sunni fanatics are working against the Alawi and, as a result, the situation in Lebanon is unsafe.[4]
[4] CB17-20
Tribunal’s reasons
The Tribunal was not satisfied the applicant was a credible witness. First, the Tribunal did not accept the applicant’s evidence of his being kidnapped by Sunni fanatics. It found the applicant’s evidence was inconsistent with the applicant’s previous claims, and was otherwise unpersuasive. The applicant said he was kidnapped and knocked unconscious when getting into the car but went on to give evidence that three of the four kidnappers were in the car, one in the back seat with the applicant and two sitting in the front, and one of the four had a car of their own. When the Tribunal asked the applicant how he could have known this if he was unconscious the entire time he was in the car, the applicant said one of the people was going to sit next to him and that he saw the other person turning around to get in the front. The Tribunal did not accept the applicant would be able to accurately describe where the men were sitting in the car if he had been knocked unconscious while getting into the car and no one else was in the car at that time and ultimately, found the applicant’s explanation unpersuasive.
Second, the Tribunal found the applicant’s evidence regarding whether the applicant sought medical treatment as a result of the abduction to be inconsistent with the evidence the applicant gave at a Departmental interview and also with evidence provided by his brother at the hearing before the Tribunal.[5] When the inconsistent evidence was put to the applicant in a letter sent pursuant to s.424A of the Migration Act 1958 (Cth) (424A letter), the applicant stated the inconsistencies were due to the applicant being tired during the interview, his having difficulties with the Egyptian interpreter, and that his answers may not have been clear or consistent. The Tribunal found the applicant did not provide a direct explanation for the inconsistencies and, ultimately, did not accept the applicant’s explanation.
[5] CB72, [15]
Third, the Tribunal found the applicant’s and his brothers’ evidence regarding details the applicant gave in relation to the abduction was “so inconsistent that it raises concerns for the Tribunal that the claims have been fabricated”.[6]
[6] CB73, [19]
Fourth, the Tribunal considered the applicant’s and his brother’s evidence about how the applicant got to the airport inconsistent. The applicant gave evidence that his bother-in-law drove him to the airport and the applicant’s brother gave evidence that a friend from their neighbourhood took the applicant to the airport.[7] When the Tribunal brought the inconsistency to the applicant’s attention at the hearing, the applicant claimed his brothers were not informed of the arrangement. When the inconsistency was put to the applicant’s brother, he claimed he had forgotten that this was the arrangement. The Tribunal put these inconsistencies to the applicant in the 424A letter and, ultimately, did not accept the explanation provided by the applicant.
[7] CB74, [21]
Fifth, the Tribunal did not accept the applicant’s claims that he had received threats from the Salafists before his kidnapping because the applicant failed to refer to such threats in his written claims or at the interview by the delegate. The Tribunal found that if the applicant had been receiving such threats before his abduction he would have referred to them at some earlier point, either in his written claims or at the interview by the delegate.[8] The Tribunal further found the applicant’s evidence in relation to these threats to be inconsistent and unconvincing.[9]
[8] CB74, [22]
[9] CB74, [23]
Sixth, the Tribunal found that country information did not support the applicant’s claims. When the Tribunal put to the applicant country information which suggested interactions and ties between Sunni and Alawite communities are relatively common, and that it would be unlikely to result in a person being targeted on the basis of a friendship, the applicant claimed he was targeted because the Salafists thought he was providing arms to the Alawites because the Salafists had seen the applicant hunting with two Alawite friends. The Tribunal found this evidence was not consistent with the written statement provided by the applicant and that, if the primary reason for the applicant’s kidnapping was that he was seen hunting with Alawite friends, he would have referred to it in his written claims.[10]
[10] CB76, [30]
The Tribunal accepted the applicant is a butcher who had Alawite customers he was friendly with. However, the Tribunal was not satisfied the applicant was abducted, threatened, or attacked as a result of those friendships, or that he was accused of providing weapons to Alawites, or that he fled Lebanon to Australia because he feared harm from Salafists.[11]
[11] CB76-77, [32]
The Tribunal also considered the applicant’s claims under s.36(2)(aa) of the Act and was not satisfied there was a real chance the applicant would be harmed because of his friendship with Alawites if he were to return to Lebanon.
The grounds of review
The application filed by the applicant in this Court contains the following three unparticularised grounds of review:
1.The Refugee Review Tribunal Member (the Tribunal) wrongly relied on inconsistencies in evidence given by my two Australian siblings.
2.The Tribunal attacked my credibility and ignored the supplementary evidence provided.
3.The Tribunal misunderstood my abduction and the allegation that I support Alawite.
The applicant, who is not legally represented, did not make any submissions in relation to any of the grounds contained in the application. He did, however, make oral submissions, and I will consider these after I consider the grounds stated in his application.
Ground One
The applicant’s complaint appears to be that the Tribunal wrongly relied on inconsistencies between, on the one hand, the applicant’s evidence, and on the other, the applicant’s brothers’ evidence when deciding whether to accept the applicant’s claims.
The Tribunal did not simply state the applicant’s evidence and his brothers’ evidence was inconsistent; it set out in detail those inconsistencies throughout its reasons for decision. It was reasonably open to the Tribunal to accept or reject the evidence of the applicant or of his brother or of both because of the inconsistencies it had identified in its reasons for decision.
Ground one, therefore, fails.
Ground Two
The “supplementary evidence” to which this ground refers appears to be the letter dated 3 February 2014 the applicant sent to the Tribunal in response to the 424A letter.[12] By this ground, the applicant contends the Tribunal ignored the applicant’s supplementary evidence when determining whether to accept the applicant’s credibility.
[12] CB63
It is apparent from its reasons for decision that the Tribunal considered all evidence, including the supplementary evidence provided when making findings as to credibility. The Tribunal referred to its sending to the applicant the 424A letter;[13] and in its reasons the Tribunal refers to responses the applicant made to matters raised in the 424A letter.[14] It was reasonably open to the Tribunal to make adverse findings as to the applicant’s credibility based on the evidence before it.
[13] CB70, [6]
[14] CB72, [17]; CB73, [18]; CB74, [20], [21], and [22]
At the hearing before me, the applicant also submitted “[t]he RRT has rejected because of inconsistencies by my brothers’ evidence…the RRT has not taken into consideration my answer that I was given or recorded in the green book on page 63 to page 67…the RRT has not taken into consideration that enmity between the Sunnis and the Alawites.” The Tribunal did consider the applicant’s response to the letter the Tribunal sent pursuant to s.424A of the Act.[15] The Tribunal did not accept the explanations provided by the applicant which it was reasonably open to the Tribunal to do. This ground of review does not disclose any jurisdictional error.
[15] CB72-74
Ground two, therefore, fails.
Ground Three
The application does not articulate the respects in which the Tribunal misunderstood the applicant’s evidence that he had been abducted, or his claim that he supports “Alawite”. This ground, therefore, also fails.
Applicant’s Oral Submissions
As I have already noted, the applicant made a number of submissions to me, although none related to any of the grounds specified in the application.
The first submission the applicant made is that his interview before the delegate was the first time the applicant was interviewed. The applicant submitted he did not feel comfortable with the lady who conducted the interview.
There is nothing to suggest the applicant raised with the Tribunal any difficulties he submitted before me he faced when interviewed by the delegate. Nor is there anything in the material before me that ought reasonably to have suggested to the Tribunal the applicant experienced any difficulties when interviewed by the delegate. This submission, therefore, raises no arguable case of jurisdictional error by the Tribunal.
The second submission the applicant made before me is that a friend of his helped him complete the protection visa application form. To the extent the applicant intends to submit that the application contained errors, and that such errors are attributable to the applicant’s friend’s not properly recording the applicant’s instruction, that does not raise any arguable ground of jurisdictional error.
There is nothing in the material before me to suggest that the applicant submitted to the Tribunal that his application contained any error due to his friend’s having completed it. On the contrary, in response to the Tribunal’s question whether he was aware “of any errors of what she wrote down”, the applicant said “I don’t think so”.[16] The applicant’s second oral submission also raises no arguable case of jurisdictional error.
[16] Transcript annexed to affidavit of applicant’s wife at page 6.
The third submission the applicant made before me is that the applicant’s Australian wife is pregnant, and she cannot return with the applicant to the area the applicant is from in Lebanon because the area is very dangerous. The applicant submits the Tribunal did not understand the extent of the danger in that area.
The applicant did not claim before the Tribunal that harm would befall his wife if she were to return to Lebanon with the applicant. And to the extent the applicant intends by this submission to contend the Tribunal was incorrect in finding it was safe for the applicant to return to Lebanon, such contention does not disclose any jurisdictional error by the Tribunal. The third oral submission also fails.
The fourth submission the applicant made before me is that the evidence he gave before the Tribunal was true and appears to claim the Tribunal were wrong in not admitting or accepting it. This submission merely expresses disagreement with the Tribunal’s decision and does not disclose any jurisdictional error by the Tribunal.
Conclusion and disposition
The applicant has not established the Tribunal made any jurisdictional error. I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 19 June 2015
0
2