SZVWZ v Minister for Immigration

[2016] FCCA 1796

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1796

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal (now Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(No 2) (2004) 144 FCR 1; [2004] FCAFC 263

First Applicant: SZVWZ

Second Applicant: SZVXA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3588 of 2014

Judgment of: Judge Barnes

Hearing date: 11 July 2016

Delivered at: Sydney

Delivered on: 11 July 2016

REPRESENTATION

Solicitors for the Applicant: In Person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to Administrative Appeals Tribunal.

2. The application be dismissed.

3. The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3588 of 2014

SZVWZ

First Applicant

SZVXA

Second 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 for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 18 November 2014, affirming a decision of a delegate of the First Respondent not to grant the Applicants’ protection visas. 

2. The Applicants are husband and wife and citizens of Lebanon, who came to Australia in August 2013 as the holders of visitor visas.  They applied for protection on 23 January 2014.  Only the First Applicant (the husband) made claims on the basis of the Refugees Convention and complementary protection criteria.  The Second Applicant, his wife, sought a protection visa on the basis that she was a member of her husband’s family unit.  For convenience (except where it is necessary to distinguish the Applicants) the First Applicant is referred to as the Applicant. 

3. The Applicant claimed in his protection visa application that while he originally left Lebanon to visit his children and grandchildren, he was in a motor vehicle accident in October 2013 and was unable to travel, that medical treatment was not available in Lebanon because of the unrest and trouble, and that he could not afford medical expenses in Lebanon.  He also claimed that he had been “harassed and harmed” by political groups and that he feared harm in Lebanon because he was known to oppose the presence of Syrian refugees in Lebanon and had advised people in Lebanon not to welcome Syrian refugees.  He claimed that while working as a taxi driver, he had carried passengers who were informants.  He claimed there was no security or peace in the area he came from, that the government could not protect him and that they had no free medical system or peace that could guarantee his well-being. 

4. The Applicant provided supporting documentation in relation to the car accident and his medical condition and treatment.  He attended an interview with the delegate.  As recorded in the delegate’s decision and the Tribunal decision, he told the delegate that he had not experienced any problems in Lebanon on the basis of his religion, that he was not involved with any political parties, that he had not been harmed and/or harassed by political groups and that he had not advised people in his community not to welcome Syrian refugees.

5. He was recorded, however, as claiming to the delegate that in the course of his work as a taxi driver, he had conveyed two groups of Syrian men in his taxi who confronted him.  He claimed to fear they would harass him if he returned to Lebanon. 

6. The application was refused and the Applicants sought review by the Tribunal.  The First Applicant attended a Tribunal hearing.  In these proceedings the Applicants relied generally on a transcript of the Tribunal hearing annexed to an affidavit of Toufic Laba Sarkis, dated 14 April 2015.  Further medical evidence was also provided to the Tribunal. 

7. In its reasons for decision, the Tribunal summarised the written and oral evidence before it.  It recorded that the Second Applicant had made no separate claims of her own, but sought protection on the basis of being a member of her husband’s family unit.

8. The Tribunal set out the Applicant’s evidence at the Tribunal hearing that he intended to return to Lebanon until the accident made that impossible and that one week before he came to Australia he picked up a group of Syrians in his taxi who “harassed” and attacked him “verbally” about why his sons were not fighting the war in Syria.  It recorded that when the Applicant was asked directly why he did not want to return to Lebanon, he said that the first reason was his health and the second was the “atmosphere” in Lebanon.  When asked if he was worried about the Syrians he claimed he carried in his taxi, he replied that he was worried because he had been approached in that way, but that he had not told his children for fear it would give rise to disputes.  He also claimed that the situation in Lebanon was bad and in chaos.

9. In its findings and reasons, the Tribunal stated that it had borne in mind the Tribunal’s Guidance on Vulnerable Witnesses.  The Tribunal considered the Applicant’s evidence and concluded that generally it found the Applicant to be an unreliable witness, although there were some specific claims that it accepted.  The Tribunal explained that it found the Applicant to be generally unreliable, because at times he was confused and non-responsive and there were inconsistencies between what appeared in his application and what he said during the hearing and sometimes between different accounts at the hearing.  The Tribunal also found the Applicant’s account of his circumstances in Lebanon was not assisted by the circumstances of preparation of the application. 

10. The Tribunal detailed its concerns about inconsistencies, confusion and non-responsiveness in the Applicant’s evidence, referring to his apparent difficulty in understanding the role of the Tribunal and his responses when his written claims were put to him.  In particular, the Tribunal recorded that when it put to him that he had claimed: “The area I’m from” … “there’s no security or peace” in his protection visa application, he had replied:

    There was security and also because of my health problems and also I was given papers … they told me I cannot travel.

11. Further, it had regard to the fact that when asked why he did not apply for protection when he first arrived in Australia (if he sought protection because of threats the Syrians had made to him, as he had told the Tribunal), the Applicant said it was because he did not tell his children about what happened when he drove the Syrians in his taxi.  The Tribunal recorded that it also asked the Applicant about the claim in his written application that when he was driving, he was harassed and harmed by political groups, and when the Tribunal asked which political groups the Applicant was referring to, he told the Tribunal he was not harmed by political groups.  He claimed he was referring to Syrians.  The Tribunal then put to the Applicant his written claim that he made a decision to sell his taxi and be away for six months until the situation improved.  When asked if that was correct, the Applicant told the Tribunal that he needed to sell the taxi to raise the funds to travel to Australia.

12. The Tribunal also took into account the fact that when it asked the Applicant about the timing of his protection visa application, he agreed he had never thought to apply for protection before the motor vehicle accident.  He did not deny that that was the trigger for the application, although he did not agree.  He said that the other reason was the Syrians who approached him in his taxi.  When asked why he did not apply for protection when he first arrived, he said it was because he did not tell his children about it, and after the accident, the problem became two problems.

13. The Tribunal had regard to the inconsistency in the Applicant’s evidence about the time at which he was harassed by Syrians and the fact that he told the Tribunal it was in the last week before he came to Australia, whereas he had also said that he had sold his taxi 10 to 20 days before he left.  The Tribunal found that the Applicant had no coherent response when this inconsistency was put to him or to the Tribunal’s concern that if he sold the taxi when he said he did, then the events describing the Syrians in the taxi could not have taken place or, at least, not at the time described.

14. As indicated, the Tribunal also found that the Applicant’s account of his circumstances in Lebanon was not assisted by the circumstances of the preparation of the protection visa application.  It recorded that the Applicant had explained that he could not read or write and that the application was completed by one of his daughters-in-law and the son of a friend.  They had not read the contents back to him.  He denied telling them what to write in the form, but the Tribunal did not accept this, as some of what the Applicant told it was consistent with the application.  However the Tribunal did not accept that the Applicant had any real understanding of many of the matters agitated in his application, except in the broadest possible terms.  It gave examples.  It observed that when it had raised with the Applicant his written claims that he was advising people not to welcome the refugees from Syria and that he was known as a person who opposed the Syrian presence in Lebanon, he replied:

    I am opposing the Syrian presence? I am not aware of this.

15. The Tribunal also had regard to the fact that the Applicant’s oral claims that six or eight Syrian men had harassed him in his taxi in the last week before he came to Australia and that his neighbour was shot by Syrians, did not appear in his written statement. 

16. In these circumstances, the Tribunal made a number of findings.  It accepted that the Applicant was an illiterate 75-year-old Lebanese man from the area in Lebanon he claimed to come from, and that the Applicants had 13 children, four of whom lived in Sydney with their families.  It also accepted that both Applicants had poor general health including, for the First Applicant, injuries sustained during a motor vehicle accident which occurred in Australia in October 2014.  It accepted that until he came to Australia, the First Applicant had driven a taxi in Tripoli for some 30 years, and that very shortly before he came to Australia for his son’s wedding, he received what the Tribunal described as “some very low-level verbal harassment” from some Syrian passengers in his taxi.

17. The Tribunal found that the Applicants came to Sydney to attend a son’s wedding and that at that time they intended to return to Lebanon, but that, in the Applicant’s view, the motor vehicle accident made that impossible.  It also found that the Applicant never considered making an application for a protection visa until after the accident and that the application was prepared by one of his daughters-in-law and the son of a friend. 

18. The Tribunal was of the view that the reason the First Applicant did not wish to return to Lebanon was because of his current poor health and the injuries he suffered as a result of the accident, that he feared being unable to afford or access appropriate medical treatment in Lebanon, and that while he had a concern about returning to Lebanon because of what he described as “the situation”, such fears were generalised at best.

19. The Tribunal did not accept that the Applicant feared serious harm in Lebanon from the unidentified individuals who spoke to him in his taxi some 15 months earlier.  It rejected that assertion or that his life was at risk if he returned.  It did not accept that his neighbour was shot by a Syrian.  Consistent with the Applicant’s oral evidence, it did not accept that he was ever harassed by political groups or known as a person who opposed the Syrian presence in Lebanon.  The Tribunal was of the view that the Applicant had no real fear of serious harm if he returned to Lebanon and that there was not a real chance he would suffer such harm if he did return.

20. The Tribunal then turned to the Applicant’s claims about the implications of his medical condition.  It did not find on the current medical evidence available to it that the Applicant was unable to travel to Lebanon, although it accepted that this may have been the case some months earlier.  However, the Tribunal rejected the suggestions which were simply based on the First Applicant’s uncorroborated evidence, that he would not receive adequate medical treatment in Lebanon or that he would be unable to pay for his medical treatment in Lebanon. 

21. The Tribunal concluded that the Applicant did not meet the Refugees Convention criterion.  For the same reasons it was not satisfied that he met the complementary protection criterion. 

22. Hence the Tribunal found that as the Second Applicant’s claim for protection visa was put on the basis of being a member of her husband’s family unit, she did not meet the criteria for a protection visa.  The Tribunal affirmed the delegate’s decision. 

23. The Applicants sought review by application filed in this court on 22 December 2014.  They filed an application, supporting affidavit and, as indicated, an affidavit of Mr Laba Sarkis attaching a transcript of the Tribunal hearing.  They did not file written submissions, but had the opportunity today to make oral submissions, including reading prepared written submissions in Arabic which were translated by the interpreter. 

24. There are two grounds in the application.  The first is that:

    The Tribunal did not understand the serious harm I will suffer if I return to Lebanon.  Even my wife’s health is serious and we both suffer and unable to receive proper medical treatment in Lebanon.

25. This may be taken as a contention that the Tribunal did not understand or consider the First Applicant’s claims or all the integers of his claims (or “their” claims).  It is not made out.  On the contrary, it is apparent on the material before the court that the Tribunal understood and considered all the integers of the Applicants’ claims, albeit that it also understood that there were inconsistencies, confusions and differences between the account in the written protection visa application and the oral evidence of the First Applicant at the Tribunal hearing. 

26. Insofar as this ground amounts to a disagreement with the Tribunal’s rejection of the Applicant’s claims to protection on the basis of his claims about events in Lebanon and the impact of his medical condition, the Tribunal considered those claims.  The findings that it made were not illogical or irrational and were open to it on the material before it for the reasons which it gave.  The Applicants’ contentions in this respect (and submissions today) seek impermissible merits review.  As I endeavoured to explain to the Applicants, this court has no power to determine whether or not they are refugees.  Their disagreement with the Tribunal’s conclusions is not such as to reveal, or even suggest, jurisdictional error.

27. In particular, the Tribunal recorded and understood the Applicant’s claim that he did not wish to return to Lebanon because of his current poor health and injuries and that he feared being unable to afford or access appropriate medical treatment in Lebanon.  It considered such claims.  However, in circumstances where the claims about the adequacy and affordability of medical treatment in Lebanon were based simply on the Applicant’s uncorroborated evidence, the Tribunal did not accept that he would not receive adequate medical treatment or that he would be unable to pay for medical treatment in Lebanon.

28. Insofar as this ground relates to the Second Applicant (and is a claim that she would be unable to receive proper treatment in Lebanon and would therefore suffer serious or significant harm), no such claim was advanced before the Tribunal.  It is the case that it is apparent from the transcript of the Tribunal hearing that the Tribunal raised with the First Applicant his wife’s circumstances.  The First Applicant gave evidence that his wife had some health problems at the time of the Tribunal hearing.  However the Tribunal also drew to the Applicant’s attention the fact that there were two ways his wife could be granted protection: either if she herself had particular fears of harm in Lebanon, or because of her husband’s fears, on the basis that if he obtained a protection visa, as his wife she would also do so.  The Tribunal explained that the latter was what was claimed in the application (transcript pp.15-16).  The First Applicant then gave evidence about his wife’s impending medical treatment.  However such claims are not such as to raise clearly and squarely (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263) a claim that the wife, in her own right, feared serious or significant harm on the basis of her health condition or on the basis that she would be unable to receive proper treatment in Lebanon in such a way as to bring her within the complementary protection criteria (having regard in particular to the definitions of the concepts that amount to significant harm within the Migration Act 1958 (Cth)).

29. Insofar as the Applicants now seek to raise this concern as a fresh claim, that does not establish jurisdictional error.  This court cannot decide whether or not the Applicants are refugees.  The Tribunal did not fall into error in failing to consider a claim that was not raised expressly or clearly and squarely on the material before it.  Ground 1 is not made out. 

30. Ground 2 is as follows:

    My life will be at risk as I will be harassed by the Syrians.

31. In essence, this ground also seeks impermissible merits review and disagrees with the Tribunal’s conclusions.  As indicated, the Tribunal considered the Applicant’s claims about Syrians.  It accepted that some 15 months earlier he had received what it found was some very low level verbal harassment from some unidentified Syrian passengers in his taxi, but not that he feared serious harm from these individuals.  Such findings were open to the Tribunal on the material before it for the reasons which it gave.  No jurisdictional error is established on this basis.

32. In the hearing today, the Applicants’ son read a lengthy statement which, in essence, reiterated the Applicants’ claimed concerns about return to Lebanon and took issue with the merits of the Tribunal decision.  It appeared to be suggested that the Tribunal had not understood or considered aspects of their claims.  Insofar as this was a suggestion that the Tribunal had not considered aspects of their claims, as indicated, such contention is not made out.  In particular, the written statement that the Applicant’s son read reiterated a contention in the original protection visa application about the First Applicant being known as someone who opposed the Syrian presence in Lebanon.  However, the Tribunal understood that such a claim had been made in the protection visa application, but also understood that it was not the claim made by the First Applicant at the Tribunal hearing, and considered it in light of that inconsistent evidence.

33. The claims that are made today on behalf of the Applicants do not establish jurisdictional error in the manner in which the Tribunal addressed the claims made throughout the protection visa process.

34. Insofar as the First Applicant took issue with the Tribunal’s findings in relation to his health and concerns about returning to Lebanon, the Tribunal’s findings were open to it on the material before it for the reasons which it gave.  I note in that respect that in the course of the Tribunal hearing the Tribunal member pointed out to the Applicant that if their concern generally was their health problems (as distinct from other issues in Lebanon), there may be other visas or ways in which they could seek to stay in Australia and strongly suggested to them that they get some legal or migration law advice about that issue.  However, their concerns in that respect, which they reiterated today, do not establish jurisdictional error on the part of the Tribunal.

1. The Tribunal properly considered the Applicants’ claims.  It made findings that were open to it on the evidence before it.  The fact that it accepted some of the factual claims made by the Applicant does not mean that it had to accept all aspects of his claims (as appeared to be contended for today).  The Tribunal gave reasons for finding the First Applicant to be a generally unreliable witness, while acknowledging that there were some specific claims that it accepted.  It explained its concerns in that respect and gave reasons for its credibility finding.  No jurisdictional error is apparent in that regard. 

2. As no jurisdictional error has been established on any of the bases contended for by the Applicants, the application must be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 18 July 2016