SZUCC v Minister for Immigration and Border Protection
[2016] FCA 99
•12 February 2016
FEDERAL COURT OF AUSTRALIA
SZUCC v Minister for Immigration and Border Protection [2016] FCA 99
Appeal from: SZUCC v Minister for Immigration & Border Protection & Anor [2015] FCCA 2541 File number(s): NSD 1185 of 2015 Judge(s): GILMOUR J Date of judgment: 12 February 2016 Legislation: Federal Court Rules 2011 Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Date of hearing: 11 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr M Wiese Solicitor for the Respondent: Clayton Utz ORDERS
NSD 1185 of 2015 BETWEEN: SZUCC
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
12 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GILMOUR J:
The appellant appeals from a decision of the Federal Circuit Court delivered on 17 September 2015 dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal; Tribunal) dated 21 February 2014. The Tribunal affirmed a decision of a delegate of the first respondent (Delegate) to refuse to grant the appellant a Protection (Class XA) visa (protection visa).
The sole ground of appeal is that the primary judge erred by failing to find that it was not open to the Tribunal to reject the appellant's factual claims.
Background
The following, as to the background to this appeal, is not controversial and is substantially drawn from the Minister’s outline of submissions. The appellant did not file submissions.
The appellant is a citizen of Lebanon who arrived in Australia on 22 December 2012 as the holder of a family visitor visa. On 29 January 2013, he lodged an application for a protection visa. He was represented by a registered migration agent.
On 8 August 2013, the Delegate refused to grant a protection visa to the appellant.
Upon the appellant’s application for review of the Delegate's decision to the Tribunal the Tribunal affirmed the Delegate's decision on 21 February 2014.
The appellant’s judicial review application to the Federal Circuit Court complained that the Tribunal had failed to understand his claim and reached a wrong conclusion because of lack of information on the issue of his claimed homosexuality. At the hearing he also made allegations of apprehended bias on the part of the Tribunal. The primary judge reserved his judgment and made an order requiring the first respondent to provide an audio recording of the Tribunal hearing to the Court, on the basis that he would re-open the hearing if he considered that the recording contained any evidence capable of supporting the appellant's allegation of apprehended bias. His Honour listened to the recording and delivered judgment on 17 September 2015, without re-opening the hearing.
Appellant's Claims and Evidence
The appellant provided a written statement of his claims with his protection visa application. He gave further information about his claims in the interview with the Delegate and at the Tribunal hearing.
The appellant made the following claims. He feared harm in Lebanon on the basis of his father's and his own perceived support for the South Lebanese Army (SLA). In 2000, around the time of the Israeli withdrawal from southern Lebanon, his father was detained by Hezbollah (referred to by the Tribunal as Hizbullah), accused of being an SLA operative and tortured. His father was accused due to his good relationship with the local SLA. The appellant was a child at this time. His father was released after 2 months and ordered to abandon his home in southern Lebanon and relocate to Beirut. In the 12 years preceding lodgement of his protection visa application, Hezbollah operatives continued to monitor and intimidate his father.
The appellant claimed that he was subjected to similar intimidation himself and questioned by Hezbollah operatives on numerous occasions after he turned 18, because he is the oldest male member of his family. On these occasions he was asked about his father's relations with the SLA, and his own allegiance. Hezbollah operatives threatened to destroy his life if he did not conform to their political views or if he supported any opposing political entity. On numerous occasions, Hezbollah operatives attempted to recruit the appellant into Hezbollah. His refusals prompted threats to ruin his life. The appellant claimed that he would probably be killed by Hezbollah if he returned to Lebanon.
In 2011, the appellant worked for a period in Saudi Arabia. This period ended after 6 months when he and many other Lebanese Shiites were repatriated to Lebanon after relations between Hezbollah and Saudi Arabia deteriorated. Upon his return, Hezbollah intelligence operatives interrogated the appellant in relation to his activities in Saudi Arabia and accused him of collaboration with the Saudis. Subsequently, Hezbollah continued to monitor him due to his father's political profile and his recent work in Saudi Arabia.
In his written statement, the appellant alluded to a separate "very personal issue" which also prevented him from returning to Lebanon. In the interview with the Delegate, the appellant elaborated on this issue. He claimed to be homosexual and to fear harm in Lebanon from Hezbollah and his mother's family on that basis. At the Tribunal hearing, the appellant claimed that his maternal grandparents had said that they would kill him.
Tribunal's Decision
The Tribunal found that the appellant's evidence regarding his claims lacked credibility. It found that he was not a reliable, credible or truthful witness and that he had fabricated his claims in order to be granted a protection visa.
Claims relating to Hezbollah
The Tribunal considered and rejected each of the key elements of the appellant's claims relating to Hezbollah. In light of the appellant's evidence and relevant country information, the Tribunal rejected the appellant's claim that his father was accused of being an SLA member or collaborator. It did not accept that his father maintained a relationship with the local SLA prior to the Israeli withdrawal, as claimed. It did not accept that the appellant's father was detained or tortured by Hezbollah or forced to move to Beirut. It found implausible the appellant's claim to have been questioned by Hezbollah in relation to his father's activities, or to have been targeted for being an SLA sympathiser himself, including following his return from Saudi Arabia.
The Tribunal also did not accept that the appellant had been targeted by Hezbollah for recruitment. The appellant's claims in this regard were inconsistent with country information concerning recruitment of members by Hezbollah.
Claims relating to sexuality
The Tribunal did not accept that the appellant was homosexual or that his maternal grandparents believed he was homosexual.
The appellant knew little or nothing of the lesbian, gay, bisexual and transgender support group that exists in Lebanon, Helem. He knew little or nothing about Sydney's gay scene. His evidence about his homosexual lifestyle in Sydney was vague and unconvincing. The Tribunal raised the issue of corroborative evidence with the appellant at the hearing but he failed to provide any such evidence, which it considered reasonably ought to have been available. The appellant's evidence in relation to his maternal grandparents' belief or knowledge that he was gay was unconvincing.
Based on the above findings, the Tribunal did not accept that there was any relevant risk of harm to the appellant in Lebanon. The Tribunal accordingly affirmed the Delegate's decision.
Federal Circuit Court
The appellant alleged three grounds of review before the primary judge.
The first ground alleged that the Tribunal "failed to understand [the appellant's] claim". In relation to this allegation, the primary judge held that the Tribunal methodically identified the appellant's claims, questioned the appellant in relation to each of those claims, and gave reasons for rejecting them. There was no evidence that the Tribunal failed to understand the appellant's claims. The first ground was therefore not made out.
The appellant's second ground at first instance alleged that the Tribunal "made a decision against [his] homosexuality claim" because he could not provide information about homosexuality, and not because he is "not personally a homosexual". His Honour considered that there was nothing improper or unsound about the Tribunal relying on the absence of information that tended to show that the appellant was homosexual, consistently with his claim. His Honour also observed that the Tribunal did not rely solely on the absence of such information, but also considered relevant the absence of specific evidence of the appellant's claimed relationships which should reasonably have been available to give to the Tribunal. Therefore, the second ground was not made out.
The third ground merely observed that the Tribunal had evidence before it in relation to the appellant's homosexuality claim, but did not accept that claim. The primary judge observed that this ground did not in terms allege a jurisdictional error. In any event, his Honour considered that it was reasonably open to the Tribunal not to accept the appellant's evidence relating to this claim. The third ground was not made out.
The appellant also made submissions at the hearing which the primary judge understood to allege apprehended bias on the part of the Tribunal. After listening to the audio recording of the Tribunal hearing, his Honour concluded that there was nothing in the content or manner of the questions asked by the Tribunal which might lead a fair-minded lay observer to apprehend bias. Accordingly, no jurisdictional error could be established on this basis.
The Appeal
The appellant's sole ground of appeal alleges that the primary judge "failed to see the error of law made by the Tribunal". It is said that it was not open to the Tribunal not to accept the appellant's claims. The ground refers to the appellant's claims relating to Hezbollah and his sexuality.
The appellant does not take issue with the primary judge's conclusion in relation to the allegation at first instance of apprehended bias.
The appellant's ground of appeal raises a similar allegation to that raised in the third ground at first instance, relating to the claim concerning his sexuality. The allegation that it was not open to the Tribunal to not accept the Hezbollah claim was not (directly) raised at first instance.
I accept the Minister’s submission that the primary judge correctly concluded that the Tribunal carefully and methodically identified the appellant's claim relating to Hezbollah, and gave reasons for rejecting the claim which manifested an accurate understanding of it. The Tribunal's reasoning gave a fulsome consideration of the appellant's claims and evidence. The primary judge also correctly concluded that there was no legal error in the Tribunal's conclusions in relation to the appellant's sexuality claim.
The ground of appeal invokes impermissible merits review of the Tribunal’s findings: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal was not obliged to accept the appellant's factual assertions, nor was it obliged to conclude that the appellant's photographs depicted a genuine homosexual relationship. As the Minister correctly submits it was for the appellant to satisfy the Tribunal of his claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. The Tribunal was entitled to draw conclusions about the credibility of the appellant’s evidence and to reject his claims on that basis: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
The Tribunal, upon carefully stated and detailed grounds, found the appellant not to be a credible witness. It was entitled to so find.
Conclusion
The appeal will be dismissed with costs in favour of the first respondent.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 12 February 2016
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