FEDERAL COURT OF AUSTRALIA

MZWAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1504

MZWAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 131 OF 2005

SUNDBERG J

26 OCTOBER 2005

MELBOURNE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.             The Refugee Review Tribunal be added as a respondent.

2.             The appeal be dismissed.

3.             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.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from the decision of the Federal Magistrates Court dismissing the appellant’s application for review of the decision of the Refugee Review Tribunal which affirmed the Minister’s delegate’s refusal to grant him a protection visa. Pursuant to s 25(1A) of the Federal Court of Australia Act the Chief Justice directed that the appeal be heard and determined by a single judge.

2                     The detail of the appellant’s claims and the evidence before the Tribunal are contained in its decision, and need not be repeated. It is sufficient to record that the appellant claimed to fear persecution if he were to return to Lebanon for two reasons: first, that he was a Druze and second, because of his political involvement with the Socialist Progressive Party (PSP), particularly the faction controlled by Walid Jumblatt.

3                     The Tribunal’s principal findings were as follows:

(a)                It rejected the appellant’s claim that being a Druze was a source of persecution. It said that neither country information nor the evidence of the appellant’s parents (who were named in his visa application as members of his family unit) supported this claim.

(b)               It rejected the appellant’s claim that the PSP would not let him resign and would kill him if he did. It concluded that there was no evidence that the PSP acted against those who left the party, and did not accept that the PSP had taken or would take action against the appellant as a result of his waning enthusiasm for politics after 1996. The Tribunal gave detailed reasons to support its conclusion that the appellant did not have a well‑founded fear of persecution by the PSP or any Jumblatt‑related group.

(c)                It accepted that the appellant was one of a group of PSP members and supporters that had had a fight with another faction of the PSP controlled by Talal Arslan during the 1996 elections, as a result of which a member of that faction had died of a heart attack. However it found that the incident was an act of criminal assault “rather than one with a political intention”.

(d)               The Tribunal accepted that the appellant’s sister had been shot in the leg while on a visit to Lebanon from Australia, and that this may have been related to the appellant’s involvement in the death of the person referred to in (c). However it found that the appellant did not have a well‑founded fear of persecution at the time because, if he had, he would surely have applied for protection when he visited Australia in May 1997.

(e)                It regarded the appellant’s claims that, on his return to Lebanon after his 1997 visit to Australia, he was subjected to incidents that showed that the Arslan faction were out to harm him, as “gross exaggerations”. In this connection the Tribunal noted that after his return to Lebanon, he undertook military training and spent a further two years there before visiting Australia again in 2000 before making his protection visa application in February 2001, shortly before his visitor’s visa was to expire. It found that if the Arslan faction was intent on harming the appellant, it had many opportunities to do so. It did not find credible the appellant’s claims that he had been attacked on several occasions and had been spied on.

The foregoing is but a summary of the Tribunal’s detailed reasoning in relation to those issues.

4                     The Magistrate noted that the application for review did not set out any grounds, and that the appellant’s “amended application and contentions of fact and law” essentially took issue with the Tribunal’s findings of fact, re‑agitated matters previously presented to the delegate and the Tribunal, and invited the Court to reach a different conclusion on the facts. His Honour said:

“The Tribunal carefully examined the evidence presented by the Applicant and also availed itself of information pertinent to the claims made by the Applicant, in particular the political circumstances prevailing in Lebanon, and the role, influence and circumstances of the Druze community. The Tribunal addressed all of the claims raised in the Applicant’s contentions and, having done so, made findings of fact that were open to it. In doing so the Tribunal displayed, in my view, sound probative logic.

It was obvious that the Applicant in his written and verbal contentions required of this Court that it conduct a merits review of the decision of the Tribunal. This Court is not permitted to undertake such a review (see NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167).”

5                     The appellant’s notice of appeal contains no grounds. In his Outline of Submissions, which on the hearing of the appeal he did not wish to supplement, he repeated some of the factual matters he had put to the Tribunal, namely those relevant to [3](b) and (d), asserting that he was doing so (ie repeating them) because the Tribunal had not taken them into consideration, alternatively had not considered them “fully”. A reading of the Tribunal’s decision discloses that there is no substance in this contention. The Tribunal considered each element of the appellant’s claims, including that in [3](b), which he had not pursued at the Tribunal hearing, and those in [3](a) and (c) that were not mentioned in his Outline as matters the Tribunal had either not considered or not considered fully. It referred to country information about the Druze in Lebanon, on the basis of which it found that being a Druze is not a source of persecution there. The relevant information supported that conclusion. It gave detailed consideration to the PSP resignation claim, and provided persuasive reasons for rejecting it. It gave proper consideration to the Arslan faction incident and concluded, as it was entitled to do, that it was a criminal assault with no political overtones. It gave cogent reasons for rejecting the appellant’s reliance on his sister’s shooting as a ground for fearing persecution. Its rejection of his post 1997 claims as grossly exaggerated was not a matter that can be second guessed by either the Magistrate or on the appeal. The Tribunal had the advantage of hearing and seeing the appellant.

6                     The Magistrate’s characterisation of the appellant’s case should be accepted. It accords with the tenor of his case on appeal ‑ an attempt to persuade the Court to take a different view of the facts from that adopted by the Tribunal. On its face his Outline of Submissions invites the Court to do precisely this. For example, he asserts that his application is “based on the reality and the Tribunal did not consider it”. The Tribunal’s reasons do not disclose any error, and the Magistrate correctly so held.

7                     On the appeal the appellant sought to rely on documents that were not before the Tribunal or the Magistrate. The Court refused to receive them.

8                     The appeal having failed, and no reason having been shown as to why the usual order should not be made, the appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:              26 October 2005