SZVIO v Minister for Immigration

[2015] FCCA 3085

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3085

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36

Chen v Minister for Immigration [2011] FCAFC 56
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration v SZNSP (2010) 184 FCR 485
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Re Minister for Immigration; Ex parte Durairajasingham(2000) 168 ALR 407
Re Refugee Review Tribunal;Ex parte H (2001) 179 ALR 425

Applicant: SZVIO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2947 of 2014

Judgment of: Judge Driver

Hearing date: 18 November 2015

Delivered at: Sydney

Delivered on: 18 November 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Maddocks of DLA Piper

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

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

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2947 of 2014

SZVIO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 September 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Lebanon and had made claims of political persecution.  Background facts relating to his claims and the decision of the Tribunal on them are set out in the Minister’s legal submissions filed on 10 November 2015. 

3. The applicant is a male citizen of Lebanon born in 1989.[1] He last arrived in Australia on 16 May 2013 on a visitor visa.[2]

   [1] Court Book (CB) 50

   [2] CB 14, 53

4. The applicant applied for a protection (Class XA) visa on 16 August 2013.[3] His claims were set out in a statement accompanying the application:[4]

   a)the applicant claimed that he was a member of the Independence Movement, and had been since he was in high school.  The applicant claimed that he was extremely active in rallying against the Syrian regime while at school and in 2010 a clash broke out at his school.  As a consequence, the applicant claimed that he was the victim of constant threats and harassment from the pro-Syrian Frangieh family, pro-Syrian students and Alawis from the Jabal Mohsen area of Tripoli;

   b)the applicant also claimed that his family were known oppositionists to the Syrian regime, that his uncle and grandfather were imprisoned and persecuted by Syrian Intelligence Agents due to their political activism, and that the applicant feared suffering the same fate.  He claimed that, on 3 June 2013, his father was the target of a sniper from the Jabal Mohsen neighbourhood.  

   [3] CB 1-26

   [4] CB 27-28

5. A delegate of the Minister refused to grant the visa on 5 March 2014.[5]

   [5] CB 85-103

6. The delegate found the applicant’s testimony that he had received threats that he would be harmed by the Jabal Mohsen/Alawites/March 8 Alliance if he returned to Lebanon vague, unconvincing, inconsistent and implausible.[6]  The delegate accepted that the applicant was a low level supporter of the Independence Movement and feared generalised violence in Lebanon, but did not accept that the Jabal Mohsen/Alawites/March 8 Alliance had any interest in the applicant or that he genuinely feared being targeted by the Jabal Mohsen/Alawites/March 8 Alliance on return to Lebanon.[7]

   [6] CB 91

   [7] CB 91

7. The delegate found that the applicant did not meet the criteria for the grant of the visa under subsection 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[8]

   [8] CB 99, 101

8. The applicant applied to the Tribunal for review of the delegate's decision on 20 March 2014.[9]  The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.[10] 

   [9] CB 104-106

   [10] CB 107-125

9. The applicant gave oral evidence before the Tribunal on 19 September 2014.[11]  The applicant’s aunt also gave oral evidence.[12]  The Tribunal handed down its decision on 24 September 2014.[13]

   [11] CB 139-142

   [12] CB 139

   [13] CB 156-164

The Tribunal’s decision

1. The Tribunal did not find the applicant to be a credible witness.[14]

   [14] at [20] and [35]

2. The Tribunal found that the applicant had given inconsistent, vague and unconvincing evidence regarding the issues he claimed to have experienced at high school[15] and his other claimed experiences in Lebanon because of his membership of the Independence Movement.[16]

   [15] at [21]

   [16] at [23]

3. The Tribunal found that, because the applicant had raised for the first time at the hearing before it that he had been assaulted at school and once at university, this cast serious doubt on the veracity of the claims.[17]  In regards to the new claim, at hearing, that the applicant had resided at his maternal uncle's house for one month before departing for Australia, the Tribunal found this evidence to be unreliable and highly unpersuasive.[18]

   [17] at [22]

   [18] at [24]

4. The Tribunal accepted that the applicant was a member of the Independence Movement, however found that he only held a low profile with an insignificant role and participated in limited activities.[19]  The Tribunal was also prepared to accept that the applicant's support of the Independence Movement might have caused him to physically clash with other students, however, it did not accept that he was seriously harmed in those clashes.[20]  Consequently, and with reference to country information, the Tribunal found it implausible that the applicant was targeted for reason of his membership of the Independence Movement or for expressing anti-Syrian views.[21]

   [19] at [27]

   [20] at [37]

   [21] at [28]-[30] and [34]

5. In regards to the claim that the applicant's father was shot at by a sniper, the Tribunal accepted that this incident may have occurred.  However, it did not accept that the applicant's father was specifically targeted because of the applicant but, rather, he was in the wrong place at the wrong time.[22]

   [22] at [32]

6. The Tribunal was not satisfied that if the applicant were to return to Lebanon and express his views and/or engage in political activities at the same level he was engaged in in the past, there was a real chance the applicant would suffer serious harm for a Convention reason.[23]

   [23] at [38]

7. The Tribunal accepted that Lebanon was currently experiencing tension, instability and sectarian violence.  However, it found that this risk was faced by the population generally and not by the applicant personally.[24]  Consequently, the Tribunal was not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason,[25] or that there was a real risk that the applicant would suffer significant harm if returned to Lebanon.[26]

   [24] at [41]-[42]

   [25] at [41]

   [26] at [44]

The present proceedings

1. These proceedings began with a show cause application, filed on 23 October 2014.  The applicant continues to rely upon that application.  He has not taken up the opportunity I afforded him to file an amended application or additional evidence.  The application is supported by an affidavit filed with it which reiterates the applicant’s claims for protection.  I receive that affidavit subject to relevance.

2. I received as evidence the court book, filed on 25 November 2014. 

3. The applicant was uncertain whether he had received the court book.  He did, however, acknowledge receipt of the covering letter dated 26 November 2014, which became exhibit R1.  His recollection is that there may have been something included with that letter.  I provided the applicant with the original court book from the court file for the purposes of today’s hearing and I am satisfied that the applicant was not prejudiced by the late provision of the court book.

4. The applicant’s key difficulty is that he was not believed by the Tribunal in relation to his claims of past harm.  Both, in his application and in his supporting affidavit, he repeats his claims for protection and expresses disagreement with the decision of the Tribunal.  Unfortunately for him that disagreement does not rise above a dispute over the merits of the Tribunal decision. [27]

   [27] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

5. The Minister’s submissions attempt to divine from the narrative grounds in the application what the issues might be.  I agree with those submissions.

6. Grounds 1-7 of the application repeat the applicant’s claims for protection. 

7. Ground 8 takes issue with the Tribunal’s finding at [27] that the applicant was a low profile member of the Independence Movement and asserts that this finding was contrary to country information.  The Tribunal’s finding at [27] was open to it on the material before it.

8. Ground 9 takes issue with the Tribunal’s credibility assessment of the applicant at [20]-[21], and asserts that the Tribunal’s finding was illogical.  Credibility is a factual determination for the Tribunal, and as decision-maker par excellence, it was open to the Tribunal to find that the applicant was not a credible witness.[28]  Further, the Tribunal provided clear reasons for its adverse credibility finding, and there is nothing to suggest that the finding was one which no rational or logical decision-maker could make on the same evidence.[29]  

   [28] Re Minister for Immigration; Ex parte Durairajasingham(2000) 168 ALR 407 at [67] per McHugh J

   [29] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 647 [130] per Crennan and Bell JJ, see also at 632 [78] per Heydon J.

9. Ground 10 takes issue with the Tribunal’s questioning at hearing.  The Tribunal is entitled to control the manner of the hearing and the line of questioning, and the inquisitorial nature of the Tribunal’s proceedings must be taken into account.[30] Further, in circumstances where the applicant had claimed that he knew the faces of his attackers, that he had been pursued by students from his high school, and that many of the threats had been conveyed to him through friends,[31] it was open to the Tribunal to expect the applicant to provide more meaningful details in relation to the incidents, including who was responsible. 

   [30] Re Refugee Review Tribunal;Ex parte H (2001) 179 ALR 425 at [29]-[30]

   [31] at [23]

10. Ground 11 takes issue with the Tribunal’s findings at [37]. The Tribunal’s findings at [37] were made in light of the Tribunal’s adverse credibility finding at [21]-[23], as well as country information that was discussed with the applicant at the hearing.[32]  This ground fails to disclose any error on the part of the Tribunal.

    [32] at [29]

11. Grounds 12-18 and Ground 22 summarise and cite country information in support of the applicant’s disagreement with the Tribunal’s findings.  Country information is also annexed to the affidavit filed in support of the application.  These grounds fail to raise any arguable case of jurisdictional error by the Tribunal.  Further, the articles referenced in Ground 22 were not provided to the Tribunal.  In so far as the applicant may be seeking to assert that the Tribunal failed to consider the assassination of Rene Moawad, the Tribunal was clearly aware of this incident, as it accepted at [29] that the applicant’s cousin was with Rene Moawad at the time of the assassination.  

12. Ground 19 takes issue with the Tribunal’s finding at [32] that the applicant’s father was in the wrong place at the wrong time, and was randomly caught up in the sectarian violence that had affected Jabal Mohsen. The applicant did not claim that his family members have been targeted or harmed for reason of their membership or support for the Independence Movement or the Moawad family since he left high school in 2009.[33] In these circumstances, and in light of the country information before it, it was open to the Tribunal to reject the claim that the applicant’s father was specifically targeted because of the applicant.

    [33] at [29]

13. Ground 20 again takes issue with the Tribunal’s findings, and asserts that the Tribunal ignored or failed to give proper regard to key evidence. The applicant does not particularise what evidence the Tribunal ignored or failed to give proper regard to. The weight to be attributed to evidence is matter for the Tribunal,[34] and the Tribunal is entitled to give greater or lesser weight to the evidence before it.[35]  Further, the Tribunal does not fall into error by first making an assessment of credit before giving consideration to corroborative evidence.[36]  In so far as the Tribunal considered, but did not place any weight, on the evidence of the applicant’s aunt,[37] it was open to the Tribunal to do so; particularly in circumstances where the Tribunal considered the evidence of the applicant’s aunt appeared to be based on what the applicant and his father had narrated to her. 

    [34] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J

    [35] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 280-282

    [36] Minister for Immigration v SZNSP (2010) 184 FCR 485; Chen v Minister for Immigration [2011] FCAFC 56 at [35]

    [37] at [36]

14. Ground 21 states that the applicant would be in tremendous personal danger if he returned to Lebanon, and that he would have no option but to oppose the pro-Syrian elements destroying his country.  This ground fails to raise any arguable case of jurisdictional error on the part of the Tribunal.  The Tribunal considered whether the applicant would face a real chance of serious harm if he were to return to Lebanon and express his views and/or engage in political activities at the same level he was engaged in the past, and was not satisfied that the applicant faced a real chance of serious harm.[38] The applicant raised concerns about the current security situation in Lebanon, and the Tribunal appropriately considered whether this risk was faced by the population generally or by the applicant personally, pursuant to s.36(2B)(c) of the Migration Act. The Tribunal was satisfied that the lack of security and instability the applicant feared was faced by the population generally and not by the applicant personally, and therefore there was taken not to be a real risk of significant harm.[39]

    [38] at [38]

    [39] at [42]

15. I drew to the applicant’s attention that, as a matter of general knowledge, the present situation in Lebanon now is somewhat different from when the applicant first sought protection.  In particular, the historical, political and religious divisions within Lebanon are subsumed into a larger regional conflict.  The applicant and his partner, I think, agreed that there are now almost daily events in Lebanon related to that conflict.

16. It is unsurprising that the applicant would be afraid of returning to Lebanon in the situation of great uncertainty.  Those are matters that the applicant could put to the Minister through his Department.  They are beyond the scope of this proceeding.  I am satisfied, however, that the Tribunal validly dealt with the claims as put by the applicant at the time of the Tribunal decision. 

17. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

18. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.  The applicant did not want to be heard on costs.

19. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 November 2015