SZUYB v Minister for Immigration

[2016] FCCA 3320

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUYB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3320

Catchwords:
MIGRATION – Application under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Refugee Review Tribunal – whether applicant has raised an arguable case for relief – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)

Migration Act 1958 (Cth), s.36(2A)

Applicant: SZUYB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2323 of 2014

Judgment of: Judge Manousaridis

Hearing date: 2 September and 26 November 2015

Delivered at: Sydney

Delivered on: 21 December 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2323 of 2014

SZUYB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for review be dismissed because the application does not raise an arguable case for the relief it seeks. The applicant, a citizen of Lebanon, seeks judicial review of a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The applicant’s claims for protection are contained in a statement accompanying the applicant’s application for a Protection visa which was completed by the applicant’s migration agent at the time.[1] In that statement, it is claimed that on 25 February 2010 the applicant’s father was detained and accused of spying and collaborating with Israel.[2] Approximately three months after the applicant’s father’s arrest, the applicant was detained for three days, interrogated, and subjected to persecution, torture, physical and psychological abuse, sleep deprivation, and inhumane treatment, including being beaten severely, insulted, and called a “Zionist”, “dog”, “traitor”, and “son of a spy”.[3]

   [1] CB27-36

   [2] The applicant relied on a number of news articles including “Lebanon detainee charged with spying for Israel”, The Daily Star, 16 March 2010, and “ISF arrests another suspected spy for Israel”, The Daily Star, 17 March 2010.

   [3] CB27-28

2. After the interrogation, the applicant claims military intelligence agents forced him to sign papers despite the applicant not knowing what information the papers contained. The applicant claims he was kept under constant surveillance and that, not long after the three-day interrogation, the applicant was blackmailed by army intelligence agents who approached the applicant and demanded that he act as an informer for them and “hand in” one of the applicant’s colleagues who was later detained for three days.[4] The applicant claimed he was under constant surveillance as a result of which he changed his mobile number regularly to maintain some privacy.

   [4] CB29

3. The applicant further claimed that, since his father’s arrest, he has been unfairly targeted, persecuted, has lost hope of leading a happy and peaceful life in Lebanon; that he and his family have lost family ties with their extended family; that he experienced character assassination by association; and that the applicant was heckled, humiliated, and verbally assaulted in public.

4. The applicant also claimed he and his family were evicted from their apartment in 2011. In the letter notifying the applicant and his family of the eviction, two reasons were given, one being the applicant’s father’s “spy accusations”. The letter stated the applicant’s family “could no longer reside in their home as it was being used for espionage and for political purposes, specifically, for providing information to Israeli intelligence”.[5]

   [5] CB30

5. The applicant travelled to the United Arab Emirates and Malaysia in September and October 2011 in an attempt to escape his circumstances in Lebanon, but returned to Lebanon on 12 October 2011 after having a panic attack in Malaysia. On his return to Lebanon, the applicant claimed he “faced problems with the Lebanese migration authorities due to [the applicant’s] father’s charges as a spy for Israel”, and that “[t]hey kept him waiting for several hours at a time before eventually releasing him”.[6]

   [6] CB30

6. The applicant claimed he has a well-founded fear of persecution if he returns to Lebanon because he will be persecuted due to the fact that his father is accused and detained on the grounds of acting as a spy for Israel, and that this resulted in a pro-Israel political opinion being wrongly imputed on the applicant.[7]

   [7] CB34

Tribunal’s decision

1. The Tribunal accepted the applicant’s father was convicted on espionage charges. It did not, however, accept that the authorities imputed to the applicant an anti-Lebanon or pro-Israel political opinion because of the applicant’s father’s espionage activities.[8] The Tribunal relied on the applicant’s not being charged; his release after three days of detention; his ability to obtain a passport; his ability to travel out of and re-enter Lebanon; the applicant’s remaining in Lebanon from when he was questioned and detained in March 2010 until October 2012, with the exception of two months when the applicant travelled to the UAE and Malaysia in 2011; the applicant’s not being questioned further in connection with his father’s crimes since March 2010; and the applicant’s not experiencing any problems re-entering Lebanon in 2011 (other than being delayed at the airport for questioning for six hours) or departing Lebanon for Australia in 2012.[9] 

   [8] CB196, [18]

   [9] CB196-197, [18]; [20]

2. The Tribunal was satisfied the applicant was detained for questioning for three days after his father’s arrest on espionage charges, and that the applicant was subjected to some discomfort in the form of being blindfolded, questioned, handcuffed, being forced to stand for long periods, and being slapped. The Tribunal found the above treatment was warranted by reason of the serious charges against the applicant’s father, and the Tribunal did not accept “the treatment to which the applicant was subjected during questioning was any more than unpleasant, fearful and involved low level physical discomfort”, or that the treatment amounted to serious harm or significant harm.[10]

   [10] CB196, [19]

3. The Tribunal did not accept the applicant was subjected to intrusive surveillance by army intelligence officers other than in connection with the then ongoing investigation into the applicant’s father. The Tribunal found it was entirely logical that, until the time of the father’s sentencing in May 2013, the applicant and his family would be the subject of some monitoring.[11] The Tribunal found the applicant was of no interest to the Lebanese authorities after his release in March 2010, and did not accept the applicant was imputed with any political opinion, or suspected of any espionage activities by the Lebanese authorities.[12]

   [11] CB197, [21]

   [12] CB197, [23]

4. The Tribunal accepted the applicant and his family were evicted from their apartment in 2011, and that they were subjected to insults and harassment by their neighbours because of the arrest, conviction and sentencing of the applicant’s father. The Tribunal found, however, that this did not amount to serious harm sufficient to constitute either persecution or significant harm.[13]

   [13] CB197-198, [24]-[25]

5. The Tribunal, therefore, was not satisfied the applicant has a well-founded fear of persecution for a Refugees Convention[14] reason at the time of the Tribunal’s decision or in the reasonably foreseeable future if he returns to Lebanon, or that there is a real risk the applicant will suffer significant harm.[15]

   [14] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

   [15] CB198, [27]-[28]

Grounds of review

1. The application filed by the applicant in this Court contains the following ground:

   The Refugee Review Tribunal underestimated my fear of persecution and harassment and misunderstood my claim.

2. By itself, this ground discloses no jurisdictional error, because it is not particularised; and the applicant, although asked whether he wanted to make any submission in relation to that ground, made no submissions about that ground. The applicant, however, who is not legally represented, did make submissions.

3. The applicant referred me to paragraph 19 of the Minister’s written submission in which the Minister submitted:

   The decision record indicates that the Tribunal considered the applicant’s claims in relation to what had occurred in the past, but concluded in relation to each past event that it did not amount to persecution (or significant harm).

4. The applicant submitted the Tribunal’s decision was unreasonable given the aspects of the applicant’s claims the Tribunal accepted. The applicant submitted the Tribunal member “accepted too many things in my case and she denied other things”.[16] The applicant specifically referred to the Tribunal’s accepting that the applicant’s father had been arrested and convicted for 20 years gaol, that the applicant had been evicted from his apartment, that he had been arrested, detained, and slapped, that the applicant had been questioned at the airport, and that the applicant had been harassed. The applicant submitted that the matters the Tribunal accepted had occurred to the applicant constituted significant harm within the meaning of s.36(2A) of the Migration Act 1958 (Cth) (Act).

   [16] T5.30,  26 November 2016 hearing

5. The question the applicant’s submission raises is whether, given the aspects of the applicant’s claims the Tribunal accepted, it is arguable it was not reasonably open to the Tribunal to conclude, as it did, that the harm the applicant suffered did not amount to “serious harm such as to be persecution within the meaning of the Convention” or “significant harm within the meaning of the complementary protection criterion for a protection visa”.[17] Save for one exception, I am of the opinion that it is not arguable that these findings were not reasonably open to the Tribunal for the reasons it gave. The exception relates to the Tribunal’s finding that the applicant did not suffer serious harm or significant harm during the three-day period in which the applicant was detained after his father’s arrest. As I have already noted, the Tribunal accepted that in 2010 the applicant was subjected to “blindfolded questioning, handcuffing” and that he was “forced to stand for long periods” and “slapped”.

   [17] CB198, [25]

6. My not being satisfied, however, that there is no arguable case that it was not reasonably open to the Tribunal to find that this treatment did not amount to serious or significant harm does not mean there arises an arguable case the Tribunal made a jurisdictional error. The questions the Tribunal was required to address, and which there is no argument that it did address, are whether for one or more of the reasons stated in Art.1A(2) of the Refugees Convention the applicant had a well-founded fear of persecution, and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Lebanon, there is a real risk the applicant will suffer significant harm. There is no doubt the Tribunal considered these questions. The Tribunal particularly considered whether there was a risk the applicant would be of interest to the Lebanese authorities, or would be imputed with any political opinion, or suspected of espionage activities. The Tribunal concluded it was “satisfied that there is no risk that the applicant would be subjected to suspicion, much less harm serious enough to amount to either persecution or significant harm, in the future”.[18] It is not arguable that it was not reasonably open to the Tribunal to be so satisfied, and for the reasons it gave.

   [18] CB197, [23]

Conclusion and disposition

1. I propose to order that the application be dismissed, and that the Administrative Appeals Tribunal be substituted for the Tribunal as second respondent.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 21 December 2016