SZVGK v Minister for Immigration & Border Protection

[2014] FCCA 2935

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGK v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 2935

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Applicant: SZVGK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2816 of 2014

Judgment of: Judge Emmett

Hearing date: 3 December 2014

Date of Last Submission: 3 December 2014

Delivered at: Sydney

Delivered on: 3 December 2014

REPRESENTATION

The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Ms Sophie Given (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2816 of 2014

SZVGK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 10 October 2014. The application otherwise seeks judicial review of a decision of the Refugee Review Tribunal dated 5 September 2014 (“the RRT”).

2. On 12 November 2014, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of his application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. I also explained to the applicant that in circumstances where the grounds of the application did not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.

4. At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that may flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

5. The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the RRT hearing, by 25 November 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 25 November 2014.

6. At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

7. The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the applicant.

8. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

9. Relevantly, r.44.13 provides:

   “(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

10. The applicant was unrepresented before the Court this morning, although had the assistance of a Arabic interpreter.

11. On 27 November 2014, the applicant filed a document titled “My submission to the RRT refusal and Federal Court submission”, which was as follows:

    “- The tribunals reasoning in dealing with my disabled brother is unreasonable and such dealing gives rise to an arguable judicial error (as seen in RRT tribunal reasoning point 29).

    - the tribunal has accepted the fact that my disabled brother does attack me & accept the fact that he pulled a knife on me in an attempt to kill me, it is unreasonable to think that he don’t pose a direct threat to my life & that he wouldn’t do it again, perhaps when I’m not in position to defend myself (like being asleep for example) its’ impossible for me to reside permanently I would have to stay at my parents house with my disabled brother if returned to Lebanon even if I didn’t want to, this is a real risk to my life as my disabled brother’s mental health has deteriorated considerably since I was in Lebanon he unfortunately became more aggressive & harder to contain.

    - the tribunal overlooked my subjective fear of persecution in light of the critical situation in our area where I will be subjected to harm and danger.

    - Al nosra front and I.S.I.L affiliated terrorist group have a strong base in north Lebanon including El minieh (my home town) & the sleeper cells are now active, I.S.I.L is seeking to take over the port city and declare it part of the “caliphate” it established on Iraqi and Syrian territory earlier this year, when it declared its leader Abu Bakr Al-Baghdadi the leader of the world’s Muslims, they have launched attacks & clashed with the Lebanese army last month resulting in many victims& hundreds of civilians fleeing their homes, the whole north was on fire in a blink of an eye as those terrorist groups were ready & till today are recruiting, the Lebanese army used all force available to contain the situation & later was forced to stop their action under the pressure of ISIL & alnosra front who clashed with the Lebanese army killing many soldiers & civilians & captured earlier over 20 Lebanese soldiers & already slaughtered 2 of them & threatened to kill the rest if the army doesn’t stop their operations none of the terrorist leaders were captured & the fighting stop for the time being & the preparations for a bigger battles are reportedly undergoing.

    - the Levant is a larger area of the Middle East that actually includes Lebanon and Jordan in addition to Syria, they have expanded largely & rapidly in a relatively short amount of time & their threat to Lebanon is real & critical Lebanon is now in the eye of the hurricane – ISIL has grown to the extent that t was necessary to the strongest countries in the world & the wold leaders ( including Australia & the U.S.A. ) & the length of the war will be long & the treat of it real that even Australia has researched the Terror risk high for the first time since this system was created. 18,20 – my years of military training & the fact that I have wide experience in electrician & logistic work within the army are no doubt a reason for I.S.I.L affiliated terrorist groups active in my city (elminieh) to try & recruit me or pose & risk to my life if failed to, as they called for all the Sunni army personnels to leave the army & join them or be a target for them, this is a threat to me as I’m automatically considered in the army reserve & might be called back to the army if I’m back to Lebanon & I don’t want to be a part of this war on neither sides for this put me & my family in grave risk.

    - I rely on my application under Migration Act and clearly say that the tribunal failed to understand my fear and harm, contrary to the evidence before the Member.”  (errors contained in original)

12. The document attaches a series of documents all of which post date the decision of the RRT or were not provided to the RRT.  To the extent that the applicant sought to rely on those documents, the tender was objected to by the respondent on the grounds of relevance and refused by me on that basis.  The applicant submission is more in the nature of a restatement of his claims.  The submissions do not by themselves identify a jurisdictional error on the part of the RRT.

13. The applicant confirmed that he relied on the single ground of his application filed on 10 October 2014.  That ground is as follows:

    “1. The Tribunal failed to understand my fears & harms.”

14. That ground was interpreted for the applicant and the applicant was invited to say whatever he wished in support of that ground.  The applicant’s complaint appears to be related to his fear of harm from his disabled brother if he was to return to Lebanon. 

15. I understood the applicant to be asserting that the RRT had failed to consider that fear of harm claimed by the applicant.  However, the RRT’s decision record makes clear that it did understand the applicant made such a claim and I refer to the RRT’s findings in respect of that claim as follows:

    “29. The Tribunal accepts the applicant’s evidence and finds that the applicant’s disabled brother does attack him, and has pulled a knife on the applicant. The Tribunal asked the applicant if he could live with other relatives in El Minieh if he was in danger from his disabled brother. The applicant said that does not mean that he would be safe. If he had to see his brother, it will happen because they are so attached to each other. The applicant could not stay away from his disabled brother whenever he has a medical condition. When the Tribunal pointed out that the applicant had been away from his disabled brother for more than four years, the applicant claimed that the condition of his disabled brother had deteriorated and that he threatens to kill the applicant when they speak on the telephone. The applicant said that family members can understand his disabled brother and he understands more than anyone else, about 90% of what his disabled brother says. The Tribunal found the applicant’s evidence about speaking with his disabled brother to be implausible. It does not accept that the applicant’s family would allow the applicant’s disabled brother to engage in a conversation with the applicant on the telephone, even if he could ,when he was aggressive to the point of threatening to kill the applicant.

    30. The Tribunal finds that the applicant’s disabled brother has not harmed the applicant in the past, including when he pulled a knife on the applicant. The applicant’s expressed intention to live with and assist his disabled brother is inconsistent with the applicant’s fearing serious or significant harm from his disabled brother. The Tribunal finds that the applicant’s evidence about the danger his disabled brother poses to him was exaggerated The Tribunal finds on the applicant’s evidence that he does not fear serious or significant harm from his disabled brother .”

16. The first respondent filed written submission in support of their response on 27 November 2014.  Those submissions helpfully set out the relevant background and summarised the RRT’s proceedings as follows:

    “1. The applicant is a citizen of Lebanon and Sunni Muslim. He arrived in Australia on 29 October 2009 as the holder of a visitor visa that was valid until 7 January 2010 (Court Book “CB” at page 14). On 21 May 2014, he was detained by police during a traffic stop, identified as an un-lawful non-citizen and consequently detained under section 189 of the Migration Act 1958 (Cth) (“Act”) (CB 54 at [3]).

    2. As at the date of these submissions, the applicant remains in immigration detention.

    3. On 28 May 2014, the applicant applied to the Department for a Protection (Class XA) visa (CB 1 to 26) attaching a separate statement of claims (CB 27 to 28). The applicant claimed that he came to Australia in 2009 to visit relatives and with no intention to stay beyond the period of his visa. However, he had decided to stay and work for a better future.  He stated that he had planned to marry but this did not happen.  He stated that he continued to work in Australia after his visa expired. 

    4. The applicant claimed that the general situation in Lebanon has worsened in part by reason of being adjacent to Syria.  The applicant claimed that young Lebanese boys were recruited to fight in Syria in the name of religion and that those who refused to fight got in trouble.  The applicant claimed his father advised him strongly to stay in Australia rather than to return to Lebanon and to a situation that was bad in terms of economy and security.  The applicant claimed to fear harm on return as he may be forced to go and fight in Syria, and would be threatened if he refused to do so.

    5. During the primary decision-making process, the applicant attended a hearing with the Minister’s delegate (CB 45 to 47 and 56 at [8]). The applicant elaborated[1] on his original claims at that interview. He stated that Sunni and Shia militants have been conducting recruitment efforts using threats and violence to recruit young Lebanese males as DAISH (the Arabic name for Islamic State of Iraq and the Levant (ISIL), alternatively known as Islamic State of Iraq and Syria (ISIS)). The applicant claimed that his brother was approached by DAISH recruiters but convinced them he is the only male in his family capable of earning income. The applicant claimed to be concerned that, if he returned to Lebanon, he would be unable to use this reason to avoid being recruited. He also claimed that reporting recruitment attempts to the authorities would not solve the issue.

    6. The applicant also introduced a new claim that was not mentioned in his written statement.[2] He claimed that his sister suffers from multiple personality disorder and one of his brothers is severely disabled due to a mental illness. The applicant stated that, due to lack of mental health care facilities in the area, such people are cared for by their family. The applicant claimed that in 2006 he and his mentally ill brother were visiting their grandmother when a fight broke out between a Palestinian extremist group, Fatah-al-Islam, and Lebanese security forces. The applicant stated that a mortar shell exploded next to the house that the applicant and his brother were visiting. His brother was hit by fine shrapnel but was not severely injured; however, his brother was so frightened that he became hysterical. Since that time, the applicant claimed that his brother had held the applicant responsible for the shelling incident and reacted aggressively whenever he saw the applicant. This was claimed to include violent incidents.

    7. The applicant claimed that, if he returns to Lebanon, he will have no choice but to reside in his family home, and claimed that this would lead to a risk of being seriously injured or killed by his mentally ill brother. He also claimed that there are no other accommodation options as work is scarce in his area and he would not be able to afford separate accommodation. He also claimed that without access to family or social networks he would be unable to relocate to other areas in Lebanon, and that unemployment is high everywhere and recruiters are active across the country. 

    8. On 17 July 2014, the delegate refused the applicant’s application for a protection visa (CB 49 to 65).

    Tribunal proceedings

    9. On 23 July 2014, the applicant applied to the Tribunal for review of the delegate’s decision (CB 66 to 70). The application for review appointed Mr Toufic Laba Sarkis as the applicant’s authorised recipient (CB 69 to 70).

    10. On 18 August 2014, the Tribunal wrote to the applicant (via his authorised recipient) to invite him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, which the applicant accepted (CB 79 to 80). On 29 August 2014, the applicant appeared before the Tribunal to give evidence and present arguments in respect of his case, with the assistance of an Arabic interpreter and Mr Sarkis (CB 81 to 83).

    [1] CB 56.9

    [2] CB 57.3

    11. On 5 September 2014, the Tribunal affirmed the delegate’s decision (CB 87 to 93).

    12. The Tribunal found that the applicant “did his best to give evidence honestly but exaggerated some of his claims” (at CB 89 at [9]). The Tribunal accepted that the applicant is a Lebanese citizen and a Sunni Muslim, that his parents and five siblings live in Lebanon and that he has a seriously disabled brother and disabled sister (CB 89 at [9]). The Tribunal then recounted the substance of the applicant’s claims in relation to his brother (CB 89 at [11]). The Tribunal also noted the applicant’s evidence that it is difficult to find work in Lebanon, that wages are low and that the cost of living is expensive (at CB 89 at [12]).

    13. The Tribunal noted the applicant’s evidence that he had not returned to Lebanon because he was trying to help his family and due to fears for his safety following an incident in which his brother pulled a knife on him (CB 89 to 90 at [13]). The Tribunal also noted the applicant’s claim that his brother used to attack him about three or four times a week (CB 89 to 90 at [13]).

    14. The Tribunal noted that the applicant’s claims for protection were based on the difficult situation facing him and his family in Lebanon, his fear of harm from his disabled brother and in relation to the security situation in Lebanon in which there are many militants and a threat of being recruited to join DAISH / Islamic State (IS) (at CB 90 at [14]).

    15. The Tribunal noted the applicant’s statements about, and country information regarding, DAISH / IS (CB 90 at [15]-[17]). The Tribunal stated that it summarised the relevant country information and put to the applicant that this demonstrated that the applicant did not have a profile typical of the Sunni youths that DAISH / IS typically target for recruitment (CB 91 at [18]). The applicant responded that just because IS would be unable to convince him to joint would not mean he would be safe, and that he did not consider he was too old to be recruited (CB 91 at [18]). The applicant later stated that, while his family had not been harmed (aside from the exploding shell incident in 2006), he would be very tense “waiting for a spark to start fighting” (CB 91 at [19]).

    16. The Tribunal found that the applicant does not have a profile typical of the youths that Sunni militants recruit (CB 91 at [20]). The Tribunal further found that neither Sunni militants (including IS) or Shia militants would attempt to recruit the applicant or force him to fight in Syria, and therefore that he would not face harm for those reasons (CB 91 at [21]).

    17. In relation to the shelling incident, the Tribunal found that this was not directed towards the applicant or his brother or their grandmother, but that it occurred in the context of a battle between Fatah-al-Islam and the Lebanese army in a Palestinian refugee camp (CB 91 at [22]). Further, and taking into account country information (CB 92 at [23]-[24]), the Tribunal found that the applicant would not be at risk of harm if he returned to El Minieh because he is a Sunni, because of sectarian violence or because of the security situation there, or for any combination of those reasons (CB 92 at [25]).

    18. The Tribunal further found that the applicant would be able to subsist if he returned to Lebanon (CB 92 at [26]-[27]).

    19. The Tribunal accepted the applicant’s evidence about his relationship with his mentally ill brother, particularly that his brother attacks him and has pulled a knife on the applicant (CB 92 to 93 at [29]).

    20. However, the Tribunal found the applicant’s evidence that he is able to understand his brother’s speech better than other family members to be implausible and did not accept that the applicant’s family would allow his disabled brother to engage in conversation with the applicant on the telephone, even if he could, when he was aggressive to the point of threatening to kill the applicant (CB 92 to 93 at [29]).    

    21. The Tribunal found that the applicant’s disabled brother had not harmed the applicant in the past, including when he pulled a knife on the applicant (CB 93 at [30]). The Tribunal further found that the applicant’s expressed intention to live with his disabled brother is inconsistent with claiming to fear serious or significant harm from his brother (CB 93 at [30]). The Tribunal found the applicant’s evidence about the danger posed by his brother was exaggerated, and that the applicant does not fear serious or significant harm from his disabled brother (CB 93 at [30]).

    22. The Tribunal concluded that the applicant is not a person in respect of whom Australia has protection obligations under the Refugees Convention and thus did not meet s 36(2)(a) of the Migration Act 1958 (Act) (CB 93 at [32]). The Tribunal also found that the applicant does not meet the complementary protection criterion in s 36(2)(aa) of the Act. ”

1. Plainly, the ground of the applicant’s complaint does not disclose an error capable of review by this Court.  To the extent that the applicant has told the Court this morning in support of that ground that the RRT had failed to consider his fear of harm from his brother in Lebanon if he was to return. Such a claim is not capable of establishing jurisdictional error by the RRT for that reason. The first respondent’s submissions summarises its independent consideration of the tribunal decision at paragraph 31 as follows:

   “31. The first respondent has independently considered the Tribunal decision and notes the following:

   a. Section 422B of the Act renders Division 4 of Part 7 of the Act an exhaustive statement of the natural justice hearing rule in relation to the matters dealt with, of which the applicant’s review was one. Accordingly provided the Tribunal complied with its obligations pursuant to the Division, the applicant can be considered to have been accorded procedural fairness. For the reasons set out below, the first respondent submits the Tribunal can be seen to have fully complied with those obligations.

   b. The applicant was invited to a hearing of the Tribunal to give evidence and present arguments and notified that the Tribunal was (at that stage) unable to make a favourable decision based on the materials before it, pursuant to section 425(1) of the Act (CB 75 to 78).

   c. There was no evidence upon which the Tribunal’s decision turned that attracted the operation of ss 424A or 424AA of the Act.

   d. The Tribunal’s findings of fact were open to it to make on the evidence before it and for the reasons that it gave. The Tribunal was not obliged to uncritically accept any and all allegations made by the applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 278), and the weight to be given to her claim and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281–282. The Tribunal was the sole arbiter of the facts and evidence and, as is noted above at paragraph [30(a)], it is not the task of this Honourable Court to review the merits of the Tribunal’s decision.

   e. Moreover, the Tribunal did not accept that these circumstances (including that he is a Sunni, because of sectarian violence in Lebanon, or for any combination of the reasons (CB 92 at [25])) would result in harm, such that it was not satisfied, overall, that there was a real chance that the applicant would suffer serious harm for a Convention reason on return (CB 93 at [31]).

   f. In respect of the applicant’s claim to fear harm at the hands of his disabled brother, the Tribunal found the applicant’s evidence on that issue to be exaggerated (CB 93 at [30] and see also [30(b) above]). 

   g. The Tribunal set out and applied the correct test for both the Convention and complementary protection criteria under ss.36(2)(a) and 36(2)(aa) of the Act (C88 at [4] to [6]) and, it is submitted, correctly applied them.  To the extent that the Tribunal relied on its anterior factual findings in the context of the complementary protection criteria, that approach is not demonstrative of error: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]; SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32]).”

2. I accept the summary and the accuracy of the matters stated by the first respondent.  There is nothing on the face of the RRT’s decision record to suggest that its findings and conclusions were not open to it on the evidence and material before and for the reasons it gave.

3. While I make no final decision as to whether the RRT’s decision was affected by jurisdictional error, none is apparent on the face of the decision record.  The RRT referred to the relevant law in affirming the decision under review.  The RRT summarised various exchanges it had with the applicant at a hearing.  The RRT also noted that it summarised for the applicant country information to which is referred and which it put to the applicant for comment.  The RRT also put to the applicant matters of concern that it had arising from the applicant’s evidence and noted the applicant’s responses.

4. Ultimately, the RRT was not satisfied that the applicant met either the refugee criterion under s.36(2)(a) or the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth). The applicant has not otherwise identified an error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.

5. In the circumstances I’m not satisfied that the application has raised an arguable case for the relief claimed. Accordingly the proceeding before this Court, commenced by way of application, filed on 10 October 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  15 December 2014