SZWCY v Minister for Immigration

[2015] FCCA 595

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCY v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 595

Catchwords:
MIGRATION – Refugee Review Tribunal – whether the Tribunal had failed to consider an integer of the applicant’s claim – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary Dismissal – Proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999 s.17A
Federal Circuit Court Rules 2001 r.13.10
Migration Act 1958 ss.424A(3)(a), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28.

Applicant: SZWCY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 383 of 2015

Judgment of: Judge Street

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Sydney

Delivered on: 12 March 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms Warner-Knight
Australian Government Solicitor

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 383 of 2015

SZWCY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958, in respect of a decision by the Tribunal on 22 January 2015 affirming a decision not to grant the applicant a Protection (Class XA) Visa. 

2. The application identified on the return date:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.

3. The Court raised with the applicant that the application did not appear to disclose any arguable case, and that the Court was minded to consider dealing with the matter under its summary disposal jurisdiction.  The applicant said that the Tribunal had not given him adequate time to present his case, and that there was other country information that should have been obtained, and that he wanted to obtain a lawyer and in respect of this application, that he wanted an adjournment to get the benefit of legal assistance. 

4. The Court identified that there was no utility granting an adjournment unless there was an apparent arguable case.  The applicant sought to identify that the Tribunal had not properly considered his fear of persecution.  In the circumstances of this case, where it is clear that the application is doomed to failure, there is no utility in providing an adjournment, as it would only unnecessarily increase the parties’ costs and utilise valuable Court hearing time.  Accordingly, unless the applicant is able to identify any arguable jurisdictional error, it may be appropriate to deal with the proceedings summarily.

5. In considering the exercise of s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].

6. The grounds of the application are as follows:

   Ground One

   The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of the Applicant’s claims.

   Particulars

   The Tribunal acknowledged that the applicant involved in overt political activities during the election in 2010. The Tribunal failed to assess the applicant’s claim under the implied political opinion against Hezbollah.

   Ground Two

   The Tribunal failed to provide relevant Country Information which was not publically available to the applicant. 

   Particulars

   The Tribunal mentioned in its decision that it read out DFAT Country Information Report on Lebanon dated 25 February 2014 but failed to provide a copy to the applicant to provide his comments on the country information the Tribunal intended to rely on.

   Ground Three

   The Tribunal has failed to engage in active intellectual process by failing to ask relevant questions.

   Particulars

   The Tribunal acknowledged that the applicant mentioned in the hearing that DAISH is the major threat to Lebanon. The Tribunal failed to ask relevant questions on his fears against DAISH.

7. In relation to those grounds, it is clear that the Tribunal properly addressed the claims advanced by the applicant, and, in particular, his concerns in respect of Hezbollah, a suggestion in ground 1.  Ground 1 accordingly has no substance  

8. The suggestion in ground 2, that he was not provided with the country information, is a subject of a clear exclusion under s.424A(3)(a) of the Act, and accordingly has no substance and is doomed to failure.

9. The criticism in ground 3, that there was no active intellectual process applied by the Tribunal in its inquisitorial task is also entirely lacking in substance and doomed to failure.

10. The Tribunal noted that the applicant was a Citizen of Lebanon, and that he applied for a protection visa on 15 March 2013, which the delegate refused on 29 April 2014.  The Tribunal held a hearing on 18 December 2014, in which the applicant appeared, and gave evidence, and presented arguments and was assisted by an interpreter.

11. The Tribunal carefully set out the applicable law and turned to identify the applicant’s concerns and claims.  Relevantly, the Tribunal noted the applicant’s concern not to return to Lebanon for his own safety, due to current major tensions in the country and due to the applicant’s role in the Future Movement.  It was asserted that the Lebanese government couldn’t protect him because it’s under the control and influences of Hezbollah, its allies and associates, and it was asserted he was an assistant political organiser for the Future Movement. 

12. The applicant provided no country information or other information to support his claims for a protection visa at the hearing.  At the hearing, the applicant was allowed by the Tribunal time to provide further material in support of his claims before 2 January.  On 5 January, the Tribunal received correspondence from the applicant dated 29 December 2014, in respect of which the Tribunal indicated it required English translations by 23 January 2015, and the Tribunal received two certified translations on 22 January 2015 in respect of an incident. 

13. The Tribunal did not accept the applicant’s claims in relation to being advised not to return to Lebanon because of his safety.  The Tribunal did not accept the assertion of a conversation involving persons from the Future Movement: 

    31. The Tribunal does not accept that he had any such conversation with [Mr A]. Having such a conversation is inconsistent with his lack of knowledge about [Mr A] described above and his failing to mention the conversation until raised by the Tribunal.  The Tribunal does not accept the applicant’s explanations that he thought the Tribunal was talking about someone else.

14. The Tribunal expressly found that it did not accept the applicant’s profile as a participant in the Future Movement, charity activities, social activities or his role in the 2010 election caused him to have a profile such as those individuals had, or a profile that would result in there being a real risk that he would suffer serious harm, or there being a real risk that he would suffer significant harm from Hezbollah if he returned to Lebanon. 

15. The Tribunal noted that there has not been claimed by the applicant any incident where he has been harmed, or threatened with harm, by Hezbollah. 

16. The Tribunal found in para.39:

    39. The Tribunal does not accept that he was employed [in a certain role] for the Future Movement, as he claimed in is application, from February 2010 to December 2012.  His own evidence does not support that claim.  His only overtly political activity for the Future Movement, as opposed to charity or social activity, was his involvement in handing out election material in 2010.

17. The Tribunal found in para.44:

    44. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or a real risk that he will suffer significant harm from Hezbollah or its supporters if he returns to Lebanon.

18. The Tribunal found:

    46. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm for a Convention reason in the reasonably foreseeable future if he returns to Lebanon.

    47. The applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Lebanon.

    48. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    …

    49. For the reasons given above, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

    50. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

19. It was in those circumstances the decision of the delegate was affirmed. 

20. For the reasons I have summarised above, each of the grounds in the application are doomed to failure.  In light of the findings referred to above in respect of the decision of the Tribunal, there is no utility providing any further adjournment in respect of this matter.  I am clearly satisfied it’s doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed. 

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

Associate: 

Date:  19 March 2015