SZUZC v Minister for Immigration

[2014] FCCA 2859

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZC v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2859

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant the applicant a Protection (Class XA) visa – Application set down for show cause hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) – no arguable case raised for the relief claimed in application – Application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91X, 425

Federal Circuit Court Rules 2001 (Cth), rr.44.11(b), 44.12(1)(a)

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

Applicant: SZUZC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2408 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 2 December 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

The Applicant: The Applicant appeared in person with an Arabic interpreter.

Solicitor for the First Respondent: Ms H Musgrove of Sparke Helmore

The Second Respondent: The Second Respondent filed a submitting notice.

ORDERS

1. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2408 of 2014

SZUZC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 27 August 2014 by the applicant, SZUZC, seeking review of a decision of the second respondent, the Refugee Review Tribunal (the “Tribunal”), made by Member J. Kelly on 31 July 2014, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. The applicant, pursuant to s.91X of the Migration Act 1958 (Cth) (the “Migration Act”), has been granted a pseudonym and cannot be identified by name.

3. The solicitors for the Minister filed on 25 November 2014 a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and has been marked Exhibit “A”.  

Background

1. In setting out the following background material I have quoted directly from the Court Book and written submissions prepared by the Minister’s representatives.  Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.  I have not made further attribution as this would make the summary unwieldy.

2. The applicant, a citizen of Lebanon, arrived in Australia most recently on 3 October 2012 travelling on a prospective marriage visa (CB 58). On 28 May 2013, the applicant applied for a Protection visa (CB 1). The applicant claimed to fear harm in Lebanon from Hezbollah. On 2 January 2014, a delegate of the Minister refused to grant the visa (CB 75). On 4 February 2014, the applicant applied to the Tribunal for a review of the delegate’s decision (CB 76).

Tribunal Proceedings and Decision

1. On 22 July 2014, the applicant appeared before the Tribunal to give evidence and present arguments. On 31 July 2014, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa (CB 108 at 65).

2. The applicant served in the Lebanese army (CB 101 at [9]) and claimed to have been targeted by Hezbollah following an incident in the south-western Bekaa Valley in 2010 (CB 101-102 at [13]-[19]).

3. The Tribunal found the applicant’s reasons for Hezbollah being interested in him were vague (CB 104 at [31]). The Tribunal did not accept the deaths of the men related to Hezbollah. The Tribunal found the applicant’s claims about the connection to Hezbollah vague, and gave him several opportunities to clarify them. The Tribunal accepted the men were from the Afrash family, and that the applicant and his colleague may have been in danger from the Afrash family. The Tribunal said the applicant’s various claims about the connection of Hezbollah to the incident were inconsistent, and it did not accept them (CB 106 at [45]).

4. Pursuant to s.424AA, the Tribunal put to the applicant that his sister had applied for a sponsored visa on 11 February 2010. The Tribunal said this was relevant because it was inconsistent with the applicant’s evidence he came to Australia because of the incident that occurred in April 2010, after the sponsor visa application was made (CB 105 & 106 at [37] & [46]). The applicant said he understood the information, and why it was relevant. The Tribunal said the consequence of the Tribunal relying on this information would be that it would affirm the delegate’s decision to refuse the applicant’s application for a Protection visa (CB 105 at [37]).

5. The applicant said he wished to comment immediately and did not want an adjournment to address the matter in writing (CB 105 at [38]). The applicant said he had a problem remembering dates, and he had been taking medication, but had stopped (CB 105 at [39]).

6. The Tribunal gave no weight to a clinical psychologist’s report dated 25 November 2013, which diagnosed the applicant as suffering from chronic post-traumatic stress disorder (CB 105 at [41]). The Tribunal said the applicant gave the information to the psychologist to obtain a report to support his protection claim after claiming to have memory difficulties at the departmental interview. The Tribunal did not accept the applicant had a medical condition that caused him to have trouble concentrating, focusing, or remembering dates, and did not accept that explanation for the inconsistencies in his evidence (CB 105 at [42]).

7. The applicant returned to Lebanon from Australia in August 2010 (CB 103 at [23]). The Tribunal said it was concerned about the applicant’s claims because he was in Australia in 2010, but did not apply for protection and returned to Lebanon (CB 103 at [28]).

8. The Tribunal made the following findings in relation to the applicant’s claims:

   a)The applicant’s account of the incident at the hospital checkpoint set out in the medical report differed significantly from the account the applicant gave to the Tribunal (CB 106 at [44]), and it did not support his claim (CB 106 at [46]);

   b)The Tribunal did not accept the applicant fled Lebanon because of his fear of Hezbollah or any other group, including the Afrash family. The Tribunal said that he did not flee Lebanon because of the claimed incident which undermined his claims for protection (CB 106 at [46]);

   c)The applicant’s not being harmed or threatened at any time during the more than two years after he returned from Australia to Lebanon in 2010 was not consistent with his claim to fear he would be killed by Hezbollah or anyone else, including the Afrash family (CB 107 at [49]);

   d)The applicant’s return to Lebanon in 2010 was inconsistent with his claim to fear being killed by Hezbollah or anyone else, including the Afrash family (CB 107 at [50]);

   e)The applicant’s claims for protection because of a connection between Hezbollah and the shooting incident are not credible. The Tribunal did not accept the applicant feared harm from Hezbollah if he returned to Lebanon (CB 107 at [51]); and

   f)Any risk of harm arising from the shooting had dissipated within a short period of time after the incident. That the applicant returned to Lebanon in August 2010 and remained there until October 2012 was consistent with his having no fear of harm from the Afrash family. The applicant suffered no harm from that family during that time. The Tribunal did not accept there was a real risk the Afrash family would harm the applicant if he returned to Lebanon (CB 107 at [52]).

9. The Tribunal concluded the applicant did not meet the refugee criterion in s.36(2)(a), and was not satisfied the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa).

Current Proceedings

1. The application filed in this Court pleads the following two grounds of review:

   1.  The Refugee Review Tribunal failed to accept that the risk and harm I will suffer if I return to Lebanon.

   2.  The Tribunal failed to understand my fear of persecution, my psychological issues and my claim for refugee.

2. At the first court date directions listing of the proceeding on 18 November 2014, the applicant did not appear. Orders were made setting the proceeding down for a show cause on 2 December 2014 hearing pursuant to r.44.11(b) of the Federal Circuit Court Rules 2001 (Cth) (the “FCC Rules”). Orders were also made granting leave to the applicant to file written submissions in support of his application.

Applicant’s Submissions

1. The applicant indicated at the show cause hearing he had not prepared any written submissions.  He further indicated he had no oral submissions to make, either in chief or in response to the Minister’s written submissions (which had been translated to him prior to the commencement of the hearing).

Minister’s Submissions

1. The Minister submits the two grounds of review can be dealt with concurrently.

2. It is well established, in determining whether an applicant has a well-founded fear of persecution, the Tribunal may need to resolve questions of credit, attribute weight to particular evidence and consider the inherent improbability of events.  The weight to be given to the applicant’s claims, including his claims in relation to his fear of persecution and psychological issues, were matters for the Tribunal to assess as part of its fact-finding function. The Minister submits that the Tribunal’s findings in relation to the credibility of the applicant’s claims were findings of fact which, the Minister contends, were open to the Tribunal for the reasons it gave.

3. The Minister has also independently considered the applicant’s claims in relation to his psychological issues in relation to whether the Tribunal provided a “real and meaningful” invitation for the purpose of s.425 of the Migration Act. The Minister notes the applicant’s claimed psychological issues are relevant, but not determinative of his fitness to participate in the Tribunal hearing.

4. In the Minister’s submission, the applicant was not unfit (in the sense of being unable) to give evidence, present arguments and answer questions, and it could not be said therefore he was denied a “real and meaningful” opportunity to participate in the hearing. Respectfully, the evidence before the Court in respect of the applicant’s alleged psychological issues would not be sufficient to persuade the Court of a contravention of s.425(1) of the Migration Act.

5. Overall, the Minister submits that the applicant is asking the Court to review the merits of the Tribunal’s decision, and its assessment of the credibility of the applicant’s claims. The grounds have not established a jurisdiction error, and the Minister’s independent review of the Tribunal decision record has not otherwise identified same.

Consideration

1. In the application before the Court, the applicant seeks to review a decision of the Tribunal affirming a decision of a delegate of the Minister to refusing to grant the applicant a Protection visa

2. The application to this Court pleads two grounds of review.  On a fair reading of both grounds, they invite the Court to engage in merits review, which is impermissible.  His Honour Brennan J stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 271-272):

   The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

3. The applicant has simply expressed his discontent with the Tribunal’s findings, which were open to it on the material before it and for the reasons it gave.  These grounds of review cannot be sustained.

4. I further accept the Minister’s submissions reproduced at [20]-[21] above accurately address the Tribunal’s procedural fairness obligations.

5. On a fair reading of the Decision Record and Court Book, no error of law is apparent on the part of the Tribunal.  In the absence of any attempt by the applicant to particularise or address his claims, I am left with no option but to dismiss the application with costs awarded to the Minister.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  12 December 2014