SZGGA v Minister for Immigration & Citizenship [2007] FCA 440

FEDERAL COURT OF AUSTRALIA

SZGGA v Minister for Immigration & Citizenship [2007] FCA 440 SZGGA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2201 OF 2006

GRAHAM J

6 MARCH 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2201 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGGA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J DATE OF ORDER: 6 MARCH 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be changed to 'Minister for Immigration and Citizenship'. 2. Refugee Review Tribunal be added as a second respondent to the appeal. 3. The appeal be dismissed. 4. The appellant pay the respondent Minister's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2201 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGGA

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAHAM J

DATE: 6 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is 40 years of age. He was born in Jbeil, Mount Lebanon, in Lebanon, on 7 April 1966. Between the ages of 15 and 25 he was associated with the Christian Lebanese Forces. On 23 April 2001 he was issued with a Lebanese passport. In 2001 and 2002 he travelled extensively overseas visiting Cyprus, France and Sri Lanka. He returned to live in Lebanon. On 6 June 2002 he was issued with a visa permitting him to enter Australia on a temporary basis. That visa was issued to him in Beirut. On 16 June 2002 the appellant arrived in Australia. On 12 September 2002 he applied for a Protection (Class XA) Visa. On 7 November 2002 that Application was refused by a Delegate of the Minister. 2 On 11 December 2002, the appellant applied to the Refugee Review Tribunal ('the Tribunal') for a review of the Minister's Delegate's decision. On 15 September 2003 the Tribunal conducted a hearing, which proceeded from 10:30 am until 1:50 pm, at which the appellant gave evidence. At the hearing the appellant made certain claims which had not been mentioned in his original Application for a Protection Visa, or at any other stage prior to the review Application coming before the Tribunal. On 16 September 2003, that is to say the day after the Tribunal hearing, the Tribunal wrote to the appellant, giving him particulars of information that the Tribunal considered would be the reason, or a part of the reason for affirming the decision of the Minister's Delegate that was under review. 3 It invited the appellant to comment on the information so provided. By a letter to the Tribunal dated 8 October 2003 the appellant responded to the Tribunal's letter of 16 September 2003. However, the inconsistencies between the matters raised by the appellant at the Tribunal hearing and the matters mentioned in the appellant's original Application for a Protection Visa and pre-hearing contentions of the appellant were not addressed. 4 One of the three matters to which the Tribunal drew attention in its letter of 16 September 2003 was conduct, said to have taken place after 11 September 2001, which, at the Tribunal hearing, the appellant said brought him into conflict with armed members of Hezbollah and other opponents of the appellant. The appellant did not address the failure to mention this conflict in his Protection Visa Application or other material provided by him or on his behalf prior to the Tribunal hearing. He said in his letter of 8 October 2003: 'After the incident that took place on September 11 we were discussing and exchanging opinions about who and why they attacked America. When the Chiite Muslims were praising the attackers as Hero's and saying that the American people deserve to die because to their Catholic and Jewish faith. I disagreed with them accusing them of being Stupid and crazy with no sense of morals or humanity. Because I defend those innocent people who parished (sic) during the attack on America, all of the Muslim's that were present at the time shoved me around and threatened to kill me if they ever saw me again.' 5 On 5 December 2003 the Tribunal decided the appellant's Application for Review adversely to him and affirmed the decision of the Minister's Delegate to refuse the appellant's Visa Application. That decision was handed down on 2 January 2004. On 9 May 2005 the appellant filed an Application in the Federal Magistrate's Court of Australia seeking constitutional writ relief. An Amended Application was filed in the Federal Magistrate's Court on 14 September 2005. On 18 October 2006 a hearing took place in the Federal Magistrate's Court before Jarrett FM. On 19 October 2006 his Honour dismissed the appellant's application and ordered the appellant to pay the respondent Minister's costs fixed in the sum of $4200. 6 On 7 November 2006 the appellant appealed to this Court from the judgment of Jarrett FM. One of the grounds of appeal relied upon by the appellant referred to 'what has happened on 12 July 2006' which plainly sought to raise material that was not placed before the Tribunal. 7 The grounds of appeal upon which the appellant relies are set out in paragraphs 2, 3 and 4 of the Notice of Appeal filed 7 November 2006. They were as follows: '2. The Refugee Review Tribunal failed to rely on proper information concerning my persecution and future fear of persecution from Hezbollah. The Shia Hezbollah are well established within my area and not only in South Lebanon and the Refugee Review Tribunal failed to rely on proper information and discover why my fear of persecution is well founded. 3. I addressed His Honour in Arabic language and the interpreter gave the information into English language. His Honour also failed to see that the information I gave to the Tribunal a long time ago concerning Hezbollah is genuine and what has happened on 12 July 2006 would lead His Honour to see that the Tribunal erred in law by ignoring my political activities which Were described as "low level". The Tribunal and His Honour failed to attribute my knowledge and involvement as "high level" contrary to their finding. 4. The Tribunal failed to assess my personal circumstances and such is an error because I personally have been persecuted and for the Tribunal to ignore my personal matters it is against natural justice because the Tribunal had to look at the circumstances of the applicant as an individual and such did not take place.' 8 The interpreter assisting the appellant at the present hearing has interpreted into the Arabic language each of the grounds referred to in the Notice of Appeal. I have also explained to the appellant that it is not the function of the Court to consider his Application for a Protection Visa on the merits on the basis that the Court might substitute its decision for that of the Tribunal. I have drawn the appellant's attention to the fact that for him to succeed he must demonstrate error amounting to jurisdictional error on the part of the Tribunal. 9 When the appellant was invited to address the Court separately on each of the grounds set out in the Notice of Appeal, it became abundantly clear that he was unable to point to any error on the part of the Tribunal warranting the grant of constitutional writ relief. What he seeks is nothing other than a merits review of his matter. 10 In the Tribunal's 'findings and reasons' the Tribunal Member said: 'The applicant's claims are based on the Convention [Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ('the Refugees Convention')] grounds of political opinion and religion. His case is essentially that as a member of LF [Lebanese Forces] he was arrested and detained on two separate occasions and that he fears further harm by the authorities if he were to return to Lebanon. The applicant further claims that he fears Shi'a Muslims in his locality who threatened to harm him after a scuffle in September 2001.' 11 The Tribunal accepted that the appellant was a member of Lebanese Forces and that he was arrested on two separate occasions in 1994 and 1996 during which he was mistreated whilst in detention. In relation to the 1994 incident the Tribunal Member recorded that after a month in detention the appellant was released without charge and, according to his own evidence, the authorities apologised to him and told him that they had made a mistake. In relation to the 1996 incident, the appellant was released without charge after seven days. 12 According to the Tribunal Member the appellant described his political activities as consisting of attending and notifying others about secret meetings where the attendees had discussed the situation in Lebanon and made decisions about how to make the situation safer. No claim was made nor any evidence provided to suggest that the appellant had been involved in demonstrations or any other form of political activity. The Tribunal Member considered that the appellant's activities at best could be described as 'low-level political activities'. 13 The Tribunal was satisfied that the appellant had been of no real interest to the Lebanese or the Syrian authorities in the past for the reason of his Lebanese Forces membership or as a result of his political activities prior to his departure from Lebanon. The Tribunal was satisfied that if the appellant returned to Lebanon he would be able to express his views without experiencing unreasonable restrictions on his right of political expression. The Tribunal concluded that there was no real chance that the appellant would face persecution on his return to Lebanon. 14 In relation to the conduct said to have occurred after 11 September 2001, the Tribunal Member said: 'The applicant belatedly revealed at the hearing that in the immediate aftermath of 11 September 2001 attacks on the US, his expressions of sympathy for the victims attracted the attention of Shi'as in his locality who fired shots, "shoved" him around, threatened him and pursued him on a daily basis. When he was asked at the hearing as to why he had not raised this claim earlier, he stated that there were many incidents and that the most important ones were his arrest and detention in 1994 and 1996. The Tribunal finds this explanation unsatisfactory and is of the view that if this incident, as described by the applicant, had in fact occurred he would not have failed to mention it in his application for a protection visa or his application for review …' 15 The Tribunal did not accept that the appellant had been involved in an altercation with Shi'as in his neighbourhood in the aftermath of 11 September 2001 which led to him being shoved around, threatened and pursued. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention. Accordingly the Tribunal affirmed the decision not to grant the appellant a Protection Visa. 16 No jurisdictional error is apparent in the reasoning of the Tribunal or in the manner in which it conducted its review of the Minister's Delegate's decision. 17 In the circumstances the appeal should be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.