FEDERAL COURT OF AUSTRALIA

SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 394

MIGRATION – whether Tribunal failed to consider claim to persecution made by the appellant by reason of desertion from the army – claim not subsumed in the more general claim to persecution by reason of former membership in that army – jurisdictional error – appeal allowed

PRACTICE & PROCEDURE – leave to speak on behalf of appellant – discretion – in interest of effective, efficient and expeditious disposal of the proceedings – leave granted in unusual circumstances

Migration Act 1958 (Cth) ss 417, 424A, 422B, 477(1A)

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481

SZGDC v MIMIA [2005] FCA 1834

SZFCX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD762 OF 2005

BENNETT J

11 APRIL 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The orders made by Scarlett FM, in the Federal Magistrates Court of Australia on 13 April 2005, be set aside and, in lieu thereof, it be ordered that:

(a)        an order in the nature of certiorari be made to bring in and quash the decision of the Refugee Review Tribunal in matter N95/09814 made on 28 October 1997;

(b)        an order in the nature of prohibition be made prohibiting the respondents from giving effect to the said decision;

(c)        an order in the nature of mandamus be made requiring the second respondent to rehear, and determine according to law, the appellants’ application for review of the decision of a delegate of the first respondent that was made on 30 October 1995; and

(d)        the first respondent pay the costs incurred by the applicant.

3. The first respondent pay the appellant’s costs of the appeal to this Court.

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                     The appellant is a national of Lebanon.  Briefly, he claimed that:

(a)        he had served in the Lebanese Armed Forces (LAF) from 1984 to 1987;

(b)        in 1987 he had been arrested by Syrian forces while in Tripoli, detained for 10 months and tortured;

(c)        he escaped from the Syrians in September 1988, and deserted the LAF to serve with General Aoun;

(d)       he had served in General Aoun’s forces in East Beirut until General Aoun was defeated in 1989;

(e)        he had then joined the Christian Lebanese Forces (LF) even though the LF had previously fought against General Aoun.  It should be emphasised the LAF and the LF are different bodies; and

(f)         later he had been detained by the Syrians again, then released after his father paid a bribe.

2                     The second respondent (‘the Tribunal’) found that the reason the appellant feared harm from Syrian forces was his former membership of General Aoun’s forces.  The Tribunal found in its decision that ‘the only reason he fears persecution in Lebanon is because he was a solider in Aoun’s army’.  The Tribunal referred to independent material which, it concluded, supported a finding that former service with General Aoun did not give rise to a real chance that the appellant would be persecuted.

3                     The Tribunal was prepared to accept that the appellant might have been detained by Syrian forces at some stage during the civil war in Lebanon but it rejected his account of having been arrested a second time and of having been accused of spying for Israel.  The Tribunal concluded that the appellant would no longer be of any interest to the Syrians and that his fear of persecution in Lebanon was therefore not well-founded.

4                     The Tribunal’s decision was dated 28 October 1997.  The application for review to the Federal Magistrates Court was filed on 26 November 2004.  In the period of time between decision and application for review, the appellant had sought a discretionary decision from the first respondent and had joined a class action in the High Court, his involvement in which ceased on 20 June 2003.  If the Tribunal decision was a privative clause decision unaffected by jurisdictional error, the application to the Federal Magistrates Court was out of time by reason of s 477(1A) of the Migration Act 1958 (Cth) (‘the Act’) and his Honour had no jurisdiction to consider the application.

5                     The notice of appeal to this Court was filed out of time but, on 9 August 2005, Hely J granted an extension of time for lodgement.

The decision of the Federal Magistrate

6                     In his application to the Federal Magistrates Court the appellant claimed a failure on the part of the Tribunal to accord him procedural fairness.  A number of grounds were raised.  Scarlett FM dealt with those which simply raised factual matters and sought merits review and said, correctly, that they did not found jurisdictional error.

7                     The claim that the appellant was not given sufficient time to respond to questions was dealt with by his Honour on the basis that there had been no application for an adjournment and no evidence that the Tribunal had failed to give the appellant a reasonable opportunity to respond.  That finding has not been shown to be in error.

8                     The appellant was not aware of a ground included in his application, that the Tribunal had failed to refer him to a psychologist, because someone else had completed his application.  In any event, Scarlett FM observed that the Tribunal was under no duty to make such a referral, nor a duty to provide the appellant with a transcript of the tapes of the hearing.  No error is apparent in those conclusions.

9                     Scarlett FM also dealt with a claim of an alleged failure by the Tribunal to present to the appellant an Amnesty International report and to give him the opportunity to comment on it and other information in “the Green Book”.  His Honour held that the Tribunal was not obliged to do so by reason of s 424A(3) of the Act.  As pointed out by Hely J, the proceedings before the Tribunal were completed before the introduction of s 424A and before s 422B came into effect.  It was for that reason and because the appropriate time to consider the effect of the appellant’s delay in the prosecution of his application to review the Tribunal’s decision was on the hearing of the appeal, that his Honour granted the extension of time.

The Notice of Appeal

10                  The notice of appeal appears to raise two complaints:

(a)        The Tribunal advised the appellant that it had looked at all the papers relating to his application, when it had not.

(b)        The Tribunal ‘failed to provide the applicant a reasonable chance to respond to material taken into consideration in reaching its conclusion’.

The first complaint

11                  The first complaint was not raised in the Federal Magistrates Court, and cannot be made out on the material before the Court in this appeal.  The Tribunal did advise the appellant on 11 September 1997 that it had ‘looked at all the papers relating to your application’ but was unable to make a favourable decision.  There is nothing before me to indicate that that statement was incorrect.  Nor is there any evidence to indicate, if that statement were incorrect, that the appellant relied on it in any way that led to him being denied an opportunity to advance his case.

The second complaint

12                  As to the second complaint, as Hely J observed at [2], it is apparent from the Tribunal decision that country information was ‘central and critical to’ the Tribunal decision.  Ordinary principles of natural justice required that it be disclosed to the appellant and that he be given the opportunity to deal with it.  Mr Kennett, who appears for the first respondent, does not dispute that proposition.

13                  The appellant asserts that there was a denial of procedural fairness in the failure on the part of the Tribunal to inform him that the Tribunal would rely on country information.  The Tribunal did put to the appellant the substance of the matters adverse to him that it concluded from the country information.  Further, by specifically referring to a particular report and asking the appellant about information contained therein, the Tribunal made it clear to the appellant that it took such information into account and gave the appellant the opportunity to respond.

14                  As the hearing took place before the introduction of s 424A, the fact that the Tribunal in its decision referred to the written statement of the appellant submitted with his visa application does not attract the consideration of whether s 424A of the Act was complied with.  It is apparent from its decision that the Tribunal put to the appellant its concerns about the information in that statement and its apparent inconsistency with his evidence at the hearing and gave him the opportunity to respond.  No complaint is made by the appellant on this basis.

The appeal

15                  At the hearing the appellant asked that a friend, Mr Laba-Sarkis, be permitted to address the Court on his behalf.  The appellant did not speak sufficient English and was assisted by an interpreter.  Mr Laba-Sarkis, who is fluent in English, explained that he had been assisting the appellant and that he had translated all of the documents for him and had helped draft written submissions which the appellant sought to file in Court.  Mr Kennett did not object to the filing of the submissions and I gave a short adjournment to enable him to read them.  He also did not object to Mr Laba-Sarkis addressing the Court.

16                  A court has an inherent right in regulating its own proceedings to allow a person, not being a party or a party’s lawyer, to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice.  However such an application is not granted as a matter of course; Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481.  While there are no disciplinary measures available for any lay advocates, in this case it was relevant that the case was complex, the appellant had genuine difficulties in representing himself.  Mr Laba-Sarkis was familiar with the matter and I was of the view that Mr Laba-Sarkis would be able to present the case better and more efficiently than the appellant could.  In these unusual circumstances, I was satisfied that Mr Laba-Sarkis would be of assistance to the appellant and to the Court and to the efficiency of the hearing.  I granted leave for Mr Laba-Sarkis to speak on behalf of the appellant.

17                  The written submissions raised a number of factual matters that did not go to jurisdictional error.  They recited a series of factual assertions, presumably on the basis that the Tribunal should have accepted them.

18                  It is asserted on behalf of the appellant that there was no probative evidence to found the Tribunal’s conclusion that the appellant would not face serious harm should he return to Lebanon.  That is not the case.  The Tribunal cited the appellant’s evidence and country information and explained its reasoning in coming to that conclusion.

19                  There were a number of references in the written submissions to the Tribunal’s asserted knowledge of the appellant’s state of health or medical condition at the time of the hearing.  It was conceded at the hearing, however, that there was no matter brought to the Tribunal’s attention to make it so aware, even assuming that there was an aspect of the appellant’s health at that time that affected his evidence.  It was submitted that, because of the torture experienced by the appellant, the Tribunal should have treated inconsistencies in his evidence differently.  That, however, amounts to merits review.

Did the Tribunal consider each of the appellant’s claims?

20                  One ground in the written submissions raised the question whether the Tribunal had considered each of the claims made by the appellant.  Although this arguably went beyond the grounds in the notice of appeal, there was no objection.

21                  One such claim was that he was considered an Israeli spy.  The Tribunal did consider that claim and did not accept that the appellant was ever genuinely suspected of being an Israeli spy.  It gave reasons for that conclusion.

22                  The other claim said by the appellant not to have been considered was set out in the Tribunal’s decision under the heading “The applicant’s case”.  That was that ‘the applicant said that he is in a different position [from men who had served with General Aoun who were serving in the reconstituted Lebanese Armed Forces (‘LAF’) under General Lahoud with no apparent problems] because he was with Lahoud in Tripoli, then he deserted and joined Aoun’s forces in Beirut, and joined the LF.  This means that he will be regarded as a traitor and no one will trust him’.  Clearly, the Tribunal acknowledged that such a claim had been made.

23                  The appellant submits that ‘the Tribunal, in its findings and reasons p188, failed to understand the confusing account of the circumstances in which [the appellant] left Lebanon and concluded that the [appellant’s] evidence was that the only reason he fears persecution in Lebanon is because he was a soldier in Aoun army’.  This is reflected in the Tribunal’s statement that ‘it is evident from the account of his evidence set out above that the applicant has provided a very confusing account of the circumstances in which he left Lebanon…it is also difficult to make findings as to what actually happened to the applicant prior to his departure from Lebanon, and more particularly, when’.

24                  The Tribunal said that the only reason for the claimed fear of persecution was because the appellant was a soldier in General Aoun’s army.  The Tribunal found as a fact that “all” of the independent evidence supported a conclusion that there is no real chance that the appellant would be arrested, detained or face treatment amounting to persecution by reason of his former service in the LAF under General Aoun.  This was the very proposition put to him at the hearing to which he responded.  In putting this proposition, the Tribunal referred to country information.  Even if it did not show the appellant “all” such country information there was no denial of natural justice for this reason.  The appellant was told of the proposition and that it was supported by independent information and had the opportunity to respond.

25                  In coming to its conclusion, the Tribunal accepted that there had been reprisals against some of Aoun’s soldiers in the immediate aftermath of Aoun’s defeat but no subsequent or continuing reprisals.  It also noted that “significant numbers” of former Aounist soldiers had been integrated successfully into the newly constituted post-war LAF.  It observed that there was no evidence that the appellant would be regarded as an Aoun supporter because of any other activity in which he had been engaged and that independent information stated that there was no evidence to indicate a policy of harassment of individuals solely on the basis of their being Aoun supporters.  This dealt with the aspect of the claim that the appellant feared persecution as a former member of General Aoun’s army.

26                  However, the appellant also claimed that he was not only a former member of that army, he was also a person who had deserted, or would have been considered to have deserted, from the LAF army.  This represented a distinct claim and basis of fear of persecution by the appellant.

27                  Mr Kennett submits that the consequence of army desertion was encompassed in the appellant’s claim that he feared persecution because of his service with General Aoun.  Accordingly, in his submission, the Tribunal dealt with this claim.  In the alternative, Mr Kennett submits that the appellant did not make a claim of persecution because of his desertion from the army.  Rather, he submits, the appellant said he would not be trusted because of his desertion.

28                  I do not accept Mr Kennett’s first submission, that there was no jurisdictional error by the Tribunal because the Tribunal had determined the risk of harm to a more general social group (former members of General Aoun’s army), a subset of which was those members who had deserted the LAF.  An analogy can be drawn with the reviewable error the Tribunal committed in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 where the Tribunal had failed to deal with an important aspect of the appellant’s case: see at [18], [23]-[24] and [27] per Gummow and Callinan JJ and at [49]-[50] per Kirby J.

29                  As regards to Mr Kennett’s second submission, that no claim to persecution was made by reason of desertion, the evidence before Scarlett FM included an affidavit annexing a transcript of the Tribunal hearing.  The Transcript records the context in which the appellant claimed that he was in a different position to the other former Aoun soldiers because he was a deserter:

‘[TRIBUNAL]:  …there is just one more thing that I want to ask you about – and this is in relation to the risk that you face as a former soldier in the Lebanese Army.

[APPELLANT]:  Yes.

[TRIBUNAL]:  It is an article which is in a magazine called James Intelligence Review.  The article says that:

After October 1900 when Aoun was defeated, he ordered his men to place themselves under the command of General Lahoud.

That they did so and that:

The present Lebanese Army is made up of men who formerly served under Aoun and also men from the various militias that fought during the war.

[APPELLANT]:  That is true, some of them did join – remained in the army under the new command and – but the majority of them joined the Lebanese Forces, because those whoever were –you know, like in Tripoli when I was over there – would never dare to go back to what they were because they would never feel secure.  As a Christian we have to go to the Lebanese Forces, because that is where we would feel more secure.

[TRIBUNAL]:  The reason why I’ve raised this piece of information is because it suggests – it is another piece of evidence which suggests that former soldiers are not at risk, simply because of the fact that they fought with Aoun.

[APPELLANT]:  Yes, okay.  That would be true, but for somebody like me, if I – if you was with the Lebanese Army in Tripoli and everybody knows you and then you have – you deserted them, you left them and went to the other Army in Beirut, they would consider this as a traitorship and they would never, ever trust you again because whoever betrayed them the first time could betray them the second time.’  (emphasis added)

30                  The Tribunal was giving the appellant an opportunity to respond to a particular report which suggested that there had been successful integration of former Aoun soldiers into the new LAF.  The appellant’s response makes it clear that, unlike other former soldiers of Aoun’s army, he claimed to be still at risk.  In context, the appellant’s comment that because of his desertion he would not be trusted is an indication that he would not get the benefit of the acceptance of former soldiers in the army.

31                  Moreover, earlier in the Tribunal hearing, the appellant had emphasised that the Syrians were interested in the deserters from the army:

‘[TRIBUNAL]:  So you think it is because you served in the army under General Aoun that the Syrians are interested in you?

Interpreter: has to be.

[TRIBUNAL]:  Pardon?

Interpreter:  At first we were with the...but then we left them and we went to all to Beirut and became with Aoun and they were interested in all those personnel who left.’  (emphasis added)

32                  The appellant has an outstanding claim to persecution as a member of General Aoun’s army who had deserted the LAF army, which has not been addressed by the Tribunal.  I am satisfied that the Tribunal was required, but failed, to consider and make findings in respect of the desertion aspect of the claim made by the appellant and that this desertion claim was not subsumed in the more general claim.  Accordingly, the Tribunal decision is infected with jurisdictional error and is not a privative clause decision.  The Federal Magistrate was in error in finding that there was no jurisdictional error and that the appellant was out of time in which to appeal rendering the application not competent.

33                  The appeal is allowed.  The first respondent is to pay the appellant’s costs of the appeal.  That does not extent to any costs claimed by Mr Laba-Sarkis who was voluntarily assisting the appellant.

Associate:

Dated:              11 April 2006

The appellant appeared in person assisted by an interpreter and by Mr Laba-Sarkis