SZTYV v MIBP

Case [2018] FCA 1076

FEDERAL COURT OF AUSTRALIA

SZTYV v Minister for Immigration and Border Protection [2018] FCA 1076

Appeal from: SZTYV & Anor v Minister for Immigration & Anor
[2018] FCCA 64
File number: NSD 128 of 2018
Judge: STEWARD J
Date of judgment: 20 July 2018
Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review – where the second respondent relied in part on an anonymous letter sent to the Department of Immigration and Border Protection – where the first respondent notified the second respondent that it had received additional information in confidence – whether the second respondent failed to comply with s 424AA of the Migration Act 1958 (Cth) – whether s 438 was engaged by the notification from the first respondent
Legislation:

Evidence Act 1995 (Cth) s 130

Migration Act 1958 (Cth) ss 36, 424AA, 424A, 430, 438

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

BEG15 v Minister for Immigration and Border Protection (2017) 253 FCR 36

Coco v AN Clark (Engineers) Ltd [1969] RPC 41

Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 206 CLR 323

MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1

Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21; 265 ALR 281

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16

SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1

SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109

SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 236 FCR 549
Date of hearing: 14 May 2018
Date of last submissions: 12 June 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 52
Counsel for the Appellants: Mr D Godwin (Pro Bono)
Counsel for the First Respondent: Mr B Kaplan
Solicitor for the First Respondent: DLA Piper Australia
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 128 of 2018
BETWEEN:

SZTYV

First Appellant

SZTYW

Second Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

20 JULY 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

STEWARD J:

  1. The appellants are a mother and daughter who are citizens of Lebanon.  They arrived in Australia on 17 August 2012 with a Sponsored Family Visitor (UL-679) visa.  On 16 November 2012, they applied for a Protection (Class XA) visa and a delegate of…

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Details
AGLC
SZTYV v MIBP [2018] FCA 1076
Case
[2018] FCA 1076
Decision Date

CaseChat Overview and Summary

In the case of SZTYV v MIBP, the appellants, Sunni individuals from Tripoli, Lebanon, appealed a decision of the Federal Circuit Court of Australia which dismissed their application for judicial review. The appellants sought protection on the basis of persecution by Alawites in Tripoli, claiming their home had been damaged and robbed by Alawites, forcing their family to relocate. The Refugee Review Tribunal (RRT) did not accept the appellants' claims, partly relying on an anonymous letter, referred to as the "Adverse Letter," which alleged the mother had provided false information about her residential address in Tripoli.

The legal issues before the court were whether the second respondent, the Department of Immigration and Border Protection, failed to comply with section 424AA of the Migration Act 1958 (Cth) and whether section 438 of the Act was engaged by the notification from the first respondent. Section 424AA requires the Minister to consider information provided by a visa applicant and section 438 allows for the notification of additional information. The appellants argued that the RRT failed to adequately consider their evidence and the adverse letter was unreliable and prejudicial.

The court held that the RRT did not err in its assessment of the appellants' credibility and the weight given to the Adverse Letter. The RRT's findings were supported by the evidence, and the anonymous nature of the letter did not render it inadmissible or require its disclosure to the appellants. The court further found that the notification from the first respondent did not engage section 438 as it did not relate to new information that could have affected the RRT's decision. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The essential basis for the claim for protection is that the appellants are Sunni individuals from the city of Tripoli, Lebanon who fear persecution by the Alawites living in that city. The appellants claim that, when in Australia, their house in Lebanon was damaged and robbed by Alawites and their family had to escape to live elsewhere.THE RRT DECISION The RRT did not accept the appellants’ factual claims concerning the location of their home in Tripoli. It relied, in part, on the contents of a letter sent anonymously to the Department of Immigration and Border Protection (the “Department”) from Lebanon, which claimed that the mother had made false statements in her visa application about her residential address in Tripoli (the “Adverse Letter”). It found as follows at [32], [34] and [35]:32I do not accept that the applicant lives in Jabal Mohsen, that the house was attacked or that it has been occupied by an Alawite family. To begin with, she was quite vague and inconsistent regarding the location of her house, claiming that the whole area of Qubbeh (sometimes written as Kobbe) incorporated the area of Jabal Mohsen, which is where she was from. She claimed that her parents1ived in a village called Hilan, near Zgharta (about 10 km from Tripoli proper).…34Given the applicant’ s lack of credibility, I lend weight to the anonymous information provided to [the Department of Immigration and Border Protection] (folio 43) that the applicant had two houses in Lebanon; one in Hilan and one in Tripoli next to the al-Hakumi (Government) Hospital that she had packed up prior to coming to Australia. There is a Tripoli Government Hospital in Kobbe, and I am satisfied that the applicant has houses in Hilan (as she outlined in her application) and in Qubbeh. The information given also included detailed and accurate personal information relating to the applicant and her daughter.35I do not accept that the applicant lives in Jabal Mohsen, as maps indicate that Qubbeh and Jabal Mohsen, while adjacent, are separate. While I accept that there are periodic periods of conflict in Jabal Mohsen, given that the applicant does not live there she would be unaffected by them. And even if there was a possibility of fighting in the future spilling over into Qubbe[h], she has a residence in Hilan to which she could move. The fact that she has not done so would indicate that she feels in no danger in Qubbe[h].(Footnotes omitted) As will be seen, the last sentence at [34], supra, assumed great prominence before me. The RRT also did not accept the appellants’ claim that there had been an attack on what they said was their home. It found this assertion to have been a fabrication. It said at [38] and [39]:38I do not accept that the applicant’s house has been taken over by an Alawite family. There is no independent country information available to the Tribunal, nor was any provided by the applicant despite being invited to do so, that indicates there have been any instances where people have been evicted from their residences and Alawite families moved in. I lend little weight to the post-hearing provision of what were claimed to be Facebook posts confirming that tens of houses had been confiscated. They are untranslated in Arabic, there is no context relating to them such as who posted them or when they were posted, nor is there an indication of the background of the Tripoli or Jabal Mohsen News Networks whose accounts they were allegedly on.39Her family appears to have done nothing to try to rectify the situation, or to evict the illegal tenants. She claimed that her husband had complained to a committee but was unable to name the committee. She was also asked to ascertain the name of the committee from her husband and to provide a copy of the complaint/application post-bearing however she did neither. I am satisfied that the lack of any corroboratory county information or evidence relating to the complaint is because the incident never occurred.

Ratio Decidendi

Legal Principle Established

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