SZVTG v Minister for Immigration

[2016] FCCA 922

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVTG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 922

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the Tribunal erred in making adverse credibility findings – whether the Tribunal failed to take relevant matters into account – no arguable case of jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Federal Circuit Court Rules 2001, r.44.12

Applicant: SZVTG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3335 of 2014

Judgment of: Judge Street

Hearing date: 21 April 2016

Date of Last Submission: 21 April 2016

Delivered at: Sydney

Delivered on: 21 April 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms C Hillary
DLA Piper

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001

3. The applicant pay the costs of the first respondent fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3335 of 2014

SZVTG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 30 October 2014 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen a Lebanon and his claims were assessed against that country.

2. The applicant claimed that, since 1992, he had been targeted because he was an intelligence officer.  The applicant claimed that he had been threatened by local Salafites and this group destroyed his salon upon his arrival in Australia.  The applicant also claimed he openly spoke against the Salafites and believed the leftist people were destroying the country and, consequently, Khaled Hadadi of the Fuchim movement and Ashraf Rifi attempted to harm him.  The applicant has said that, if returned to Lebanon, he would be targeted by the Salafites, the leftist jihadists, Khaled Hadadi of the France movement or Ashraf Rifi because of his employment and his political opinion.

3. The Tribunal made adverse credibility findings in relation to the applicant and found that various aspects of his intelligence activities were inconsistent and the Tribunal expressed the view that they were unlikely to be true.  The Tribunal found that it did not accept as credible and rejected all the applicant’s evidence insofar as it relates to being an intelligence officer.  The Tribunal did not accept that the applicant had ever expressed political opinions by attending meetings of a political party or attending or participating in protests or rallies or in meetings or that he may do so if he returned to Lebanon.

4. The Tribunal did accept that the applicant’s barbershop was damaged but did not accept that the damage was caused because of his activities as an intelligence officer or because he holds or expresses certain political opinions.  The Tribunal found that it did not accept that the applicant has a fear of serious harm if he returns to Lebanon by reason of being an intelligence officer or because he expressed political opinions in the past.  The Tribunal did not accept that the incidents referred to by the applicant of beatings in 2005 or the burglary of a house in 2013, the breaking of the window of his car in 2013, a recent threat on Facebook was related or caused because he was an intelligence officer or had expressed political opinions in the past.

5. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a convention reason in his home country of Lebanon. The Tribunal found that there were not substantial grounds for believing that a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon there is a real risk that he will suffer significant harm in Lebanon.

6. The applicant has a long migration history and first applied for a tourist visa on 4 April 2007, which was refused on 19 April 2007.  The applicant then lodged a sponsored family visitor visa application which was deemed invalid on 22 June 2011.  On 29 June 2011, the applicant lodged a subsequent family visitor visa application which was refused on 21 July 2011.  On 21 May 2013, the applicant lodged a family visitor visa application which was granted on 6 July 2013.  The applicant arrived in Australia on 19 July 2013 and became an unlawful person in Australia on 2 September 2013.  It was not until 19 November 2013 that the applicant applied for protection.

7. On 17 February 2015, a Judge of the Court made orders fixing the matter for hearing today and provided the applicant with an opportunity to file an amended application, affidavit of evidence and submissions. The applicant has filed an affidavit annexing the transcript of the proceedings before the Tribunal. No other documents were filed by the applicant. The matter was listed for hearing today as a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.

8. At the commencement of the hearing, the Court explained the nature of the show cause hearing to the applicant and that it was to determine whether the applicant had an arguable case.  The Court explained that whether the applicant had an arguable case turned on whether the Tribunal’s decision was affected by a relevant error.  The Court explained that the relevant error had to be that the Tribunal acted in excess of its statutory powers or denied the applicant procedural fairness.  The applicant confirmed that he understood the nature of the hearing as explained by the Court.

9. The grounds in the application are as follows:

   1. The Member of the Tribunal failed to understand the harm I suffered and failed to understand my fear of persecution based on the documents provided.

   2. The Tribunal failed to examine my documents and attacked wrongly my credibility contrary to my evidence under oath and the evidence of the documents

   3. I reserve my right to lodge a copy of the transcript so as to prove that the decision to deny my protection visa is a result of misapplying the law.

10. In relation to the first ground, it is clear from the Tribunal’s decision and, in particular, para.11 that the Tribunal did understand the alleged harm and fears of the applicant. The Tribunal referred to the documents relied upon by the applicant in support of his case and made adverse findings in relation to certain documents provided by the applicant.  Those adverse findings were open on the material before the Tribunal.  There is nothing in the structure and content of the Tribunal’s decision or the transcript and conduct of the hearing by the Tribunal member supporting the proposition that the Tribunal member did not understand the applicant’s claims or the documents on which those claims were based. 

11. The applicant orally made reference to an identity card that was provided to the delegate.  The original was not produced and it was the applicant’s contention that the identity card was genuine.  It is clear that the Tribunal raised with the applicant the concerns about the identity card and the genuineness of the same.  The adverse findings in relation to the identity card and as to whether the applicant was an intelligence officer were open on the material before the Tribunal.  It was a matter for the Tribunal to determine the applicant’s credit.  There is nothing to support the proposition that the Tribunal did not understand the applicant’s claims. Ground 1 fails to identify any arguable jurisdictional error.

12. In relation to ground 2, the reasons of the Tribunal are inconsistent with the assertion that the Tribunal failed to examine the documents provided by the applicant. The contention that the Tribunal wrongly made adverse findings in relation to the applicant’s credibility does not identify any arguable jurisdictional error by the Tribunal.  The Tribunal identified reasons in support of the adverse findings on credibility and those reasons cannot be said to lack an evident and intelligible justification.  Nothing in ground 2 of the application identifies any arguable jurisdictional error.

13. In relation to ground 3, the transcript is before the Court.  Nothing in the transcript identified a basis upon which it could be said there was an arguable jurisdictional error by the Tribunal.  The applicant took the Court to the documents in the Court book, as well as taking the Court to the reasons of the Tribunal and referred to various pages in the transcript of the hearing before the Tribunal.  Nothing said by the applicant identified any arguable jurisdictional error.

14. The applicant’s contentions were, in substance, an impermissible challenge as to the merits of the matter, which were for the Tribunal to determine.  The applicant did suggest from the bar table that the Tribunal at the time of conducting the hearing was tired.  There is nothing in the transcript of the hearing to suggest that the applicant did not have a genuine hearing before the Tribunal. The structure and reasons of the Tribunal are orthodox and do not disclose or support any departure by the Tribunal from its statutory duty.  Nothing said by the applicant identified any arguable jurisdictional error.

15. I find the application fails to identify any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  28 April 2016