SZFMV v Minister for Immigration & Citizenship [2008] FCA 175

FEDERAL COURT OF AUSTRALIA

SZFMV v Minister for Immigration & Citizenship [2008] FCA 175 MIGRATION LAW – Tribunal refused application for protection visa – serious harm – "real chance" test properly applied

SZFMV v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2099 OF 2007

JACOBSON J

26 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 2099 OF 2007

BETWEEN: SZFMV

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: Jacobson J

DATE OF ORDER: 26 February 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal.

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 WALESDISTRICT REGISTRY NSD 2099 OF 2007

BETWEEN: SZFMV

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: Jacobson J

DATE: 26 February 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal made from orders made by Turner FM on 3 October 2007, dismissing an application from an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal. 2 The decision of the Tribunal was dated 5 February 2007. The Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa. 3 The issue which arises on the appeal involves a short question of construing the reasons for decision given by the Tribunal. The substance of the submissions made by counsel for the appellant is that the Tribunal failed to properly apply the real chance test stated by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, as subsequently explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572. 4 This issue turns solely upon what the Tribunal meant in two sentences of its findings and reasons, to which I will refer below. Nevertheless, it is necessary to set out, in some short detail, the background to the matter in order to make clear how the issue now raised on the appeal comes before the Court. 5 The appellant is a citizen of Lebanon. He arrived in Australia on 31 March 2001. He claimed to have a well‑founded fear of persecution on political grounds by reason of his former membership of the Lebanese Forces. He claimed that before leaving Lebanon, he had been detained and harassed by the authorities in Lebanon comprised essentially of the Lebanese security forces. 6 The Tribunal set out in some detail the country information which explained the role of the Lebanese Forces as a Christian militia engaged in fighting in the Lebanese civil war and the events which followed the end of the civil war. 7 It is unnecessary to refer to the country information in detail, but it shows that the situation which applied at the time when the matter was before the Tribunal was that the main political divisions in Lebanon were defined by reference to the attitudes of different groups towards Syria. The division was not on religious lines. 8 The main actors of the pro-Syrian block were the Hezbollah and some elements of the Christian Maronites, led by a number of people, including General Aoun. The other block, which comprised the anti-Syrian element, was known as the "March 14 Coalition". It included the members of the Lebanese Forces, described by the acronym LF, and other groups within Lebanon, as more fully spelt out in the country information. 9 The Tribunal accepted that the appellant is a former LF member and supporter. It accepted that there had been a general amnesty for LF members in Lebanon and abroad, but it did not accept the appellant's claimed belief that he would be targeted by the security forces of Lebanon. 10 The Tribunal then turned to the question of whether the appellant feared harm at the hands of non-state actors. It accepted that there was currently inter-political conflict in Lebanon, which involved the LF as a part of the March 14 Coalition. The conflict was found to be specifically with Hezbollah and General Aoun's Maronite Christian grouping. 11 It is the next two sentences which are critical to the issue, which arises on the appeal, and I will set them out in full. The Tribunal accepts that if the applicant were to again become politically active with the LF upon his return, he may well become involved in activities where occasional injuries or even death might occur. However, the Tribunal finds that the chance of the applicant suffering serious harm in such a situation, given the sporadic nature of such conflict, would not be such as to amount to a real chance.