SZVVE v Minister for Immigration & Border Protection

[2015] FCCA 1286

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVVE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1286

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)

Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

Applicant: SZVVE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3454 of 2014

Judgment of: Judge Emmett

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Sydney

Delivered on: 18 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms Elizabeth Warner-Knight (Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3454 of 2014

SZVVE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 12 December 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 11 November 2014(“the RRT”).

2. On 5 March 2015, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was given leave to file and serve an amended application, any further evidence by way of affidavit together with submissions in support of his application, by 11 May 2015. The matter was set down for a show cause hearing today, pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was given to the applicant.

3. 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.”

4. 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.”

5. The applicant was unrepresented before the court this morning, although had the assistance of an Arabic interpreter.

6. The background to the applicant’s claims and the RRT’s decision record are accurately summarised by the first respondent in their submissions, as follows:

   “Background

   3. The applicant is a 51 year old citizen of Lebanon who first arrived in Australia on 1 April 1996 on an entertainment visa. On 25 March 1997 the applicant lodged an application for the protection visa, the application was refused on 6 May 1997 and this decision was affirmed by the Tribunal on 22 May 1998: (Relevant Documents (RD) 140 [10].

   4. Since 1998 the applicant has applied for a variety of visas, all of which have been refused. He sought Ministerial intervention on 3 occasions.  On 29 November 2012 the applicant was located by NSW compliance and detained in Villawood Immigration Detention Facility: RD 140 [11].

   5. Following the decision of the Federal Court in SZGIZ v Minister for Immigration [2013] FCAFC 71, the applicant lodged a further and valid application for a protection visa on complementary protection grounds on 9 August 2013. He was released from immigration detention on 13 August 2013: RD 140 [11] – [12].

   6. On 3 April 2014 the application was refused by a delegate of the Minister. The applicant then lodged an application for review of the delegate’s decision to the Tribunal on 22 April 2014: RD 140 [12].

   7. In his Protection visa application (of 9 August 2013) the applicant said he left Lebanon having been shot by a sniper in 1986: RD 19. He said he feared harm from both Hezbollah and the Syrian regime and that the Lebanese army could not protect him: RD 21. The applicant claimed he was also scared because of his former involvement with the Joint Christian Community Social Service (JCCSS) in Lebanon in 1986: RD 22. He said he had no home to go to in Lebanon: RD 140 [13].

   8. Before the delegate the applicant claimed he would be targeted by Hezbollah, a Shia organisation, upon his return to Lebanon because he was a Sunni. The applicant claimed that in 1986 he was shot by Hezbollah because he was associated with the JCCSS. He fled to Cyprus to escape but returned after only a day or 2. He was detained and questioned by police at the airport but released. He was blackmailed and watched by Hezbollah while in Beirut. The applicant said he stayed in hiding until his departure for Australia in March 1996: RD 51 [8].

   9. The delegate accepted the applicant may have been shot and wounded in 1986 but that he remained in Lebanon for another 9 years and that his family continued to reside in the same location. The delegate doubted the credibility of the applicant’s claims and found that he did not meet the relevant criteria under s 36(2)(a) of the Act. For similar reasons, the delegate found the applicant did not meet the criteria under s 36(2)(aa) of the Act, the complementary protection provisions: RD 51 - 54 [9].

   BEFORE THE TRIBUNAL

   10. The applicant and his brother attended a hearing and gave evidence to the Tribunal on 15 October 2014: RD 86. 

   11. Further written submissions and documents were provided by the applicant following the hearing on 27 October 2014: RD 111. Those materials and the evidence given to the Tribunal are summarised in the Tribunal’s reasons at [20]-[42]: RD 142 - 145.

   12. The Tribunal understood the applicant’s claims to be that he had been shot in 1986, detained at the airport and interrogated by Hezbollah upon return from Cyprus in 1986, he had been economically harassed by Hezbollah in his electrical shop between 1994 and 1996 and that Hezbollah had threatened to kill him. The Tribunal noted the applicant had a generalised fear of violence by reason of being in the southern part of Beirut, exacerbated by being a Sunni Muslim and not being able to support himself in Beirut should he return.

   TRIBUNAL DECISION

   13. On 11 November 2014, the Tribunal affirmed the decision not to grant the applicant a Protection visa: RD 138.  

   14. The Tribunal accepted the applicant was born in Beirut, Lebanon into a Sunni Muslim family, that he was educated to high school level and studied an electrical course at the equivalent of a TAFE. The Tribunal accepted that the TAFE attended by the applicant had an association with the JCCSS: RD 147 [49] – [50]. The Tribunal accepted the applicant was shot in 1986, that he travelled to Cyprus in 1993, that he was interrogated by Hezbollah on return and released shortly afterwards: RD147 [50] – [51]. The Tribunal accepted the applicant worked at his cousin’s electrical shop from 1994-1996 and that there might have been some ‘low level harassment by Hezbollah of him during that period’: RD 147 [53]. The Tribunal also accepted the claim of general harassment by Hezbollah in the applicant’s home which, in the Tribunal’s view, was because the applicant and his family were ‘Sunni Muslims living in a predominantly Shia area controlled by Hezbollah’: RD 147 [54].

   15. However, the Tribunal generally found the applicant to be an unreliable witness. It found his claims were not assisted by generalised and sometimes exaggerated evidence: RD 146 [47].

   16. The Tribunal did not accept the applicant had had any association with the JCCSS or was targeted for that reason because this was never mentioned by the applicant to the Tribunal, who denied having been involved with this group save for wearing a jacket or shirt provided by them: RD 147 [50]. Nor did the Tribunal accept the sniper who shot the applicant was Hezbollah because this had been raised only faintly during the hearing and also because in his application the applicant had stated the sniper was an ‘unknown source’: RD 147 [51]. The Tribunal rejected the applicant’s claim he received a death threat from Hezbollah which it considered to be ‘another example of exaggerated evidence’: RD 147 [53].

   17. The Tribunal did not accept the applicant’s claims to have suffered from harassment in the electrical shop or in his home amounted to significant harm for the purposes of the complementary protection criteria: RD 147 [54]. The Tribunal also did not accept the applicant would suffer significant harm from Hezbollah should he return to Lebanon or that he was suspected of being a spy by Hezbollah: RD 147 [54]. The Tribunal found the applicant’s evidence on these issues to be ‘unpersuasive, generalised and confused’: RD 147 [54] The Tribunal also did not accept the applicant’s brother’s contention that the applicant was on a blacklist as this claim had never appeared or been mentioned previously: RD 147, [54].

   18. The Tribunal did not accept the applicant had a fear of harm from the Syrian regime as neither he nor his brother mentioned this during the hearing: RD 147 [55].

   19. Taking into account relevant country information the Tribunal was not satisfied the general security situation in Lebanon would expose the applicant to a real risk that he will suffer significant harm: RD 147 [56]. The Tribunal did not accept the applicant would not be able to live with his family in Lebanon and, taking into account s 36(2B)(c) of the Act, that the lack of security and instability feared by the applicant were risks faced by the population generally and not by just the applicant: RD 148 [57] – [58].

   20. For the above reasons the Tribunal found the applicant did not satisfy the criterion under s 36(2)(aa) of the Act: RD 148 [59] – [60].”

7. In support of his application, the applicant sought to read an affidavit of Mr Toufic Laba Sarkis, sworn/affirmed on 14 April 2015, annexing a purported transcript of the RRT hearing. I asked the applicant how that transcript was relevant to the proceeding. The applicant was unable to identify any relevance. The affidavit was objected to by the first on the grounds of relevance respondent and rejected by the Court.

8. The applicant confirmed that he relied on the grounds of his initiating application, which are as follows:

   “1. The Tribunal and the Department of Immigration accepted my evidence that I was shot by a sniper in 1986 and travelled to Cyprus in 1995 and was detained at the airport on my return and interrogated, yet failed to see my subjective fear of persecution.

   2. The Tribunal misunderstood and misinterpreted the law.”

9. Those grounds were interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds.

10. At the heart of the applicant’s complaints is a disagreement with the RRT’s decision that he is not at risk of persecution in Lebanon.

11. In relation to Ground 1, the RRT accepted that the applicant was shot by a sniper in 1986, that he travelled to Cyprus in an attempt to flee Lebanon, and that he was interrogated by Hezbollah personnel on his return.

12. However, the RRT did not accept that the sniper was of Hezbollah and noted that in his application the applicant had stated that the sniper was an “unknown source”. The RRT generally found the applicant to be an unreliable witness and that many of his answers were non-responsive or incoherent.

13. The applicant stated that at the heart of his complaint was his disagreement with the findings and conclusions of the RRT in relation to his risk of harm if he was to return to Lebanon. Such complaints are no more than a disagreement with the findings and conclusions of the RRT, thereby seeking impermissible merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

14. The RRT’s findings would appear to be open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility of findings. Credibility of findings are made par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

15. Further, it is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

16. The applicant’s complaint in Ground 2 is that the RRT misunderstood and misinterpreted the law. I asked the applicant in what way the RRT misunderstood and misinterpreted the law. The applicant’s answer was entirely unresponsive and I accept the submission of the first respondent that without further particularisation, this ground is without substance.

17. There is nothing on the face of the RRT’s decision record or the conduct of its review, as disclosed in a bundle of documents identified as relevant documents, filed on 6 March 2015 and marked Exhibit 1R, to suggest that the RRT otherwise did not comply with the statutory regime in the conduct of its review and the making of its decision.

18. Whilst I make no final finding as to whether or not the decision of the RRT is affected by jurisdictional error, none is apparent on the face of the RRT’s decision record or on the face of Exhibit 1R, and none has been identified by the applicant.

19. In the circumstances, I’m not satisfied that the application, filed on 12 December 2014, raises an arguable case for the relief claimed.

20. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules, and on the basis that the application does not raise an arguable case, the proceeding before this Court commenced by way of application filed on 12 December 2014 should be dismissed with costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:             1 June 2015