SZLEI v Minister for Immigration & Citizenship [2009] FCA 860

FEDERAL COURT OF AUSTRALIA

SZLEI v Minister for Immigration & Citizenship [2009] FCA 860

SZLEI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 292 of 2009

STONE J

10 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

general division NSD 292 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLEI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE OF ORDER: 10 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant is to pay the first respondent's costs of this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 292 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLEI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE: 10 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who is a citizen of Lebanon, first visited Australia for a few months from October 2004. He returned in October 2006 and applied for a protection visa on 12 December 2006. His application was refused by a delegate of the first respondent and then by the Refugee Review Tribunal. His application for review of the Tribunal's decision in the Federal Magistrates Court was successful and, on 25 February 2008, a Federal Magistrate, with the consent of the parties, made orders quashing the Tribunal's decision and remitting the matter to the Tribunal. The Federal Magistrate noted that the first respondent's concession that the Tribunal's decision was affected by jurisdictional error was made on the basis that: [T]he Second Respondent misapplied s 91R(1)(a) of the Migration Act 1958 (Cth) by failing to find that religion was the essential and significant reason for the persecution the applicant claimed to fear…. 2 The appellant was invited to put any additional documents and submissions before the Tribunal (differently constituted) and to attend a hearing which was held on 20 May 2008. 3 In a decision dated 16 June 2008 and handed down on 26 June 2008 the Tribunal affirmed the delegate's decision and refused the appellant's application for a protection visa. The appellant's application for review of the Tribunal's decision in the Federal Magistrates Court was dismissed and he now appeals to this Court. 4 The appellant's claims in support of his application are set out in considerable detail not only in the decision of the Tribunal but also in the reasons of the Federal Magistrate; SZLEI v Minister for Immigration and Citizenship [2009] FMCA 290 at [2]-[22]. For present purposes it is sufficient to give a brief account of those claims. 5 The appellant, a Sunni Muslim, claimed to have a well founded fear of persecution in Lebanon for reasons connected with his relationship with a Shi'ite woman. He claimed that after a brief relationship the woman became pregnant and he offered to marry her. Her family opposed the union because he would not convert to their religion. He claimed that when he went to the family to discuss his plans the family told him that he had to change his religion and also had to join Hezbollah with which members of the family had some connection. When he refused he was threatened with a gun and physically assaulted. The appellant claimed that he was reported to Syrian intelligence and it was falsely claimed that he was spying against Syrian activities in Lebanon. He claimed that he was detained by Syrian intelligence and questioned. The appellant decided to leave Lebanon for Kuwait and the woman with whom he was involved had an abortion and was forced to marry someone else. 6 The appellant alleged that while he was in Kuwait he was tracked down by a brother of the woman with whom he had been involved as her marriage with the other man had broken down. The family blamed the appellant who had resumed contact with her. He stated that before coming to Australia in 2006 he returned to Lebanon briefly to visit his mother who was ill. He claimed to fear persecution in Kuwait and in Lebanon as Hezbollah was prevalent in both countries. He feared that he would be implicated in the crime of adultery and having an illegal relationship with a married woman.