SZVVB v Minister for Immigration

[2016] FCCA 2245

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVVB v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2245

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Syria – Tribunal finding that the applicant could enter and reside in Lebanon – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 424A, 424AA

Cases cited:

NABD of 2002 v Minister for Immigration(2005) 216 ALR 1
NAHI v Minister for Immigration [2004] FCAFC 10
SZBYR v Minister for Immigration (2007) 81 ALJR 1190

Applicant: SZVVB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3441 of 2014

Judgment of: Judge Driver

Hearing date: 30 August 2016

Delivered at: Sydney

Delivered on: 29 September 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application filed on 11 December 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3441 of 2014

SZVVB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant is a 59 year old Syrian national who has lived in Australia for four years and who previously had lived much of his life in Lebanon.  He currently lives with his son in Australia.  He has another son who has left Lebanon and is seeking recognition as a refugee in the Netherlands.  He has two daughters who are Syrian nationals living in Lebanon and a third daughter who continues to live in Syria.  He currently has health concerns.  His wife, who was resident in Lebanon, has recently died.  The applicant’s circumstances, and the prospects for him in Lebanon raise humanitarian concerns but the issue before the Court is whether the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 14 November 2014 is affected by any jurisdictional error. 

2. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa on the basis that he could access protection in Lebanon.  For the reasons which follow, the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.

3. The following statement of background facts is derived from the submissions of the Minister filed on 24 August 2016.

4. The applicant is a citizen of Syria, but was born in Lebanon and has lived most of his life in that country[1].

   [1] Court Book (CB) 187 at [2]-[3]

5. The applicant arrived in Australia on 10 August 2012[2]. On 18 September 2012 he applied for a protection visa[3].  In the application form the applicant stated that he came to Australia on a holiday to visit his son.  Whilst away, “Syrian reps” had threated his wife in Lebanon and said that, if the applicant did not hand himself in, they would kidnap his son and daughter.  The applicant also claimed that he had been detained in Syria between 1985 and 1996 for protesting against Syrian law.  He claimed that he was tortured, beaten and starved whilst in prison.  He also fears that the Syrian army, or under-cover Hezbollah groups, will threaten him if he is returned to Lebanon.  He specifically claimed that Lebanon does not protect Syrian citizens and that he may be handed over to Syrian authorities[4].

   [2] CB 14

   [3] CB 1-51

   [4] CB 18-21; see also 32

6. The Minister’s delegate (delegate) refused the applicant’s visa application on 15 February 2013[5].

   [5] CB 88-109

7. The applicant applied for review of the delegate’s decision on 4 March 2013[6].  The applicant attended a hearing before the Tribunal which was held on 30 July 2013[7]. The Tribunal affirmed the decision of the delegate on 21 March 2014.  That decision was, by consent, quashed by this Court.  Upon remitter, the applicant attended a further hearing before the Tribunal (differently constituted) on 11 November 2014[8].

   [6] CB 110-122

   [7] CB 133

   [8] CB 188 at [7]

The decision of the Tribunal

1. The Tribunal affirmed the decision of the delegate to refuse the applicant a protection visa[9].

   [9] CB 186-210

2. The Tribunal expressed significant concerns about the applicant’s credibility and found that he had fabricated and changed his evidence in order to strengthen his protection claims[10].

   [10] CB 188 at [12]

3. Despite this view, the Tribunal was prepared to accept that the applicant had previously been involved in the Iraqi Baath Party (IBP), and that he had travelled to Iraq in the in the late 1970s to avoid military service[11].  The Tribunal also accepted that the applicant had been imprisoned in Syria between 1986 and 1995 because he had deserted from the Army and because of his “imputed political opinions as a result of his former connection with the IBP”[12].

   [11] CB 188 at [13]

   [12] CB 189 at [14]

4. The Tribunal found, however, that the applicant’s claims of ongoing political involvement since his release from prison were inconsistent and not believable. Specifically, the Tribunal rejected the applicant’s claim that he had been involved in anti-Syrian demonstrations in Lebanon in 2011 or 2012, or that his wife had been threatened by representatives of the Syrian regime since he arrived in Australia[13].

   [13] CB 189-191 at [15]-[19]

5. The Tribunal accepted that, in light of the current “dire situation in Syria”, there was a real chance that the applicant would suffer significant harm on account of his imputed political opinion if he were to be returned to Syria.

6. The Tribunal, however, found that s.36(3) of the Migration Act 1958 (Cth) (Migration Act) applied to the applicant’s claims in respect of the risk of harm upon return to Syria. That section provides:

   Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

7. In this regard, the Tribunal found that the applicant was the holder of a permanent residence visa in Lebanon.  It further found that, although this visa way due to expire on 20 November 2014, the applicant had a right to re-enter Lebanon and be granted a further six-month visa[14]. The Tribunal found, therefore, that the applicant had not availed himself of the right to enter and reside in Lebanon on his permanent residence visa[15].

   [14] CB 197 at [32]

   [15] CB 198 at [36]

8. The Tribunal further found that s.36(4) did not apply to the applicant’s case. Specifically, the Tribunal rejected the applicant’s claims that he would suffer harm in Lebanon. It found that he had a “very low, if non-existent, political profile in Lebanon” and the prospect of him being harmed on account of his political opinion would be remote[16]. The Tribunal, after considering relevant country information, also found that the applicant would not face a risk of harm because of his Syrian nationality or Sunni religion[17].

   [16] CB 199 at [38]

   [17] CB 205 at [50]

9. The Tribunal also found that there was not a real chance that the applicant would be returned by Lebanon to Syria[18]. As such, the Tribunal found that s.36(5) and s.36(5A) were not applicable to the applicant’s case.

   [18] CB 207 at [54]

The judicial review application

1. These proceedings began with a judicial review application filed on 11 December 2014.  There are two grounds in that application:

   1. The [Tribunal] misunderstood my fear of persecution and made a decision based on assumption.

   2.The Tribunal ignored the current situation in Tripoli, North Lebanon and the dangerous situation especially the harm I will face at the hand of Syrian Intelligence who continue to control our area under cover and my well founded fear of persecution is because of my political views. (errors in original)

2. The application is supported by a short affidavit filed with it, which I received as evidence.  I also have before me as evidence the court book filed on 5 February 2015 and an affidavit by Mr Toufic Laba-Sarkis made on 24 June 2015, which annexes a transcript of the Tribunal hearing held on 11 November 2014.

3. Only the Minister prepared written submissions in accordance with orders made by a registrar on 5 February 2015.  I invited oral submissions from the applicant today.  He told me of his personal circumstances and his health problems.  He sought to present medical evidence but I declined to receive it as it postdates the Tribunal decision and does not bear on any issue arising out of the Tribunal decision.  The applicant explained that he wishes to remain in Australia and die here, rather than being required to return to Lebanon which, in his view, holds nothing for him (at least since the death of his wife) and which he regards as a troubled and dangerous place.

4. The applicant was unable to advance his grounds of review, other than to touch upon two issues having a bearing upon the Tribunal decision.  The first concerns the critical Tribunal finding that the applicant has a right to enter and reside in Lebanon.  The applicant submits that since the Tribunal decision the law has changed in Lebanon and Syrian nationals are now required to have a sponsor who is able to support them in Lebanon, who cannot be another Syrian national.  The applicant submits that his daughters would be ineligible to be sponsors and he knows no one else in Lebanon who could sponsor him.  The applicant conceded that the change in the law to which he refers post dates the Tribunal decision.  Hence, it could not support an argument of jurisdictional error by the Tribunal.  The submission would, however, be pertinent to any re-consideration of the case by the Minister. 

5. I also raised with the applicant the Tribunal’s statement at [32] of its reasons that the applicant held a Syrian passport which was valid until 20 April 2015 which would facilitate his return to Lebanon.  I asked the applicant about the current status of his passport.  He told me that he had renewed it at the Syrian consulate at Sydney because the Minister’s Department had asked him to.  It is, to my mind, significantly to the applicant’s credit that he has co-operated with the Minister’s Department so as not to seek to put an obstacle in the way of his return to Lebanon. 

6. Unfortunately for the applicant, and as I explained to him, if the Tribunal’s decision is a valid one, only the Minister can change it.  I agree with the Minister’s submissions that the Tribunal’s decision is not affected by any jurisdictional error.

7. Absent further particularisation, the first ground of review does not identify jurisdictional error.

8. The complaint articulated in the second ground of review is unfounded. The Tribunal considered the situation in Lebanon by reference to country information, including two reports prepared by the Department of Foreign Affairs and Trade less than twelve months prior to the Tribunal’s decision[19]. This information included material specifically addressing the situation in Tripoli[20]. The selection of country information, and the weight to be attributed to it, was a matter for the Tribunal[21]. 

   [19] CB 202-204

   [20] CB 203 at [45]

   [21] see NABD of 2002 v Minister for Immigration(2005) 216 ALR 1 at [8]; NAHI v Minister for Immigration [2004] FCAFC 10 at [11]

Other matters

1. Although not raised in the application, two other matters may briefly be addressed.

2. First, the Tribunal’s application of ss.36(3), 36(4), 36(5) and 36(5A) was orthodox and did not involve error. The applicant had lived most of his life in Lebanon and held a permanent residence visa. In seeking protection in Australia, the applicant failed to take all possible steps to avail himself of the protection available to him in Lebanon. Once it was established that he would not face a risk of serious or significant harm in Lebanon, or face return to Syria, it was open for the Tribunal to find that ss.36(4), 36(5) and 36(5A) did not apply.

3. Secondly, the transcript filed and served by the applicant does not demonstrate any error by the Tribunal in respect of s.424AA of the Migration Act. The transcript, at pages 39 to 40 indicates that the Tribunal put three matters to the applicant pursuant to s.424AA of the Migration Act, namely:

   a)information received by the Tribunal from an anonymous telephone caller. The caller stated that the applicant had “no problems in Lebanon” (noting that, ultimately, the Tribunal placed no weight on the information received from the caller as it was not satisfied the information was “from a credible source”[22]);

   b)information given by the applicant in his interview with the delegate which was inconsistent with the applicant’s subsequent claim to have been involved in protests in Lebanon in 2011; and

   c)information given by the applicant in his first hearing before the Tribunal, which was inconsistent with the applicant’s subsequent claim to have been a member of the IBP.

   [22] see CB 192 at [23]

4. The Transcript does not disclose any error in the Tribunal’s compliance with s.424AA. In any event, the obligation under s.424A (and s.424AA) was not triggered by the information summarised in paragraph 27(b) and (c) above. Information for the purpose of s.424A (and, therefore, s.424AA) does not extend to inconsistencies in the applicant’s own account[23]. Further, the information summarised in paragraph 27(c) was given by the applicant for the purpose of the review and is, therefore, within the scope of the exception in s.424A(3)(b) of the Migration Act.

   [23] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at [18]

5. In oral submissions, counsel for the Minister also pointed out that the Tribunal had considered the Ministerial Direction issued pursuant to s.499 of the Migration Act and had referred at some length to country information which the Tribunal viewed as bearing upon its decision.

Conclusion

1. I find that the applicant is unable to demonstrate any jurisdictional error affecting the Tribunal decision.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  29 September 2016