FEDERAL COURT OF AUSTRALIA

SZGTH v Minister for Immigration & Multicultural Affairs [2006] FCA 1801

MIGRATION – whether breach established of s 424A(1) of the Migration Act – whether evidence given by a second applicant in a Tribunal proceedings falls within the exception provided in s 424A(3)(b)

Migration Act 1958 (Cth) s 424A

MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263

Applicant M47 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176

SZGTH, SZGTI, SZGTJ, SZGTK, SZGTL AND SZGTM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 958 OF 2006

CONTI J

21 december 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the Minister’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an appeal against the judgment of Federal Magistrate Emmett delivered on 3 May 2006, whereby her Honour dismissedan application for judicial review of the decision of the Refugee Review Tribunal (‘Tribunal’) made on11 September 2003 and handed down on 7 October 2003.  The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs, made on 18 February 2003, to refuse grant of protection visas to the appellants. The appellants are husband and wife and their four children all of whom were apparently citizens of Lebanon at the time of their arrival in Australia on 17 August 2001.

2                     In the proceedings before the Tribunal, the husband appellant claimed for himself and vicariously for his family a well-founded fear of persecution because of his involvement with anti-Syrian activities in Lebanon and his suspected involvement with the Lebanese Forces (‘LF’).  His claims involved being kidnapped on several occasions by Syrian Intelligence and being regularly interrogated by their officers.  The husband appellant claimed that during the year 2000, he was asked to inform on LF members active in the region. At the Tribunal hearing, the wife appellant claimed also to have a well-founded fear of persecution having a similar or related fear to that of her husband. 

3                     The Tribunal accepted that the husband appellant was detained by Syrian Intelligence, but found that the harm occasioned to him was not for a Convention reason, the motivation for his detention being revenge or the extortion of money, and that his political activity was not the essential reason for the harassment whereof he complained.  The Tribunal found that his mistreatment during the civil war had no bearing on the prospects of the husband appellant facing persecution for a Convention reason if he returned to Lebanon in the reasonably foreseeable future.

4                     The Tribunal found the husband appellant’s testimony regarding his claimed mistreatment in the years immediately before his departure to be vague and visited with discrepancies, and not sufficiently credible on that account.  The Tribunal further found that the letters from the mayor of his village in Lebanon to be vague and not sufficiently supportive of the claims advanced.  The Tribunal found further that the husband appellant lacked a well-founded fear of persecution, and further that the claims of his wife and children depended for their viability or otherwise on his claims.  The Tribunal refused in the result the grant of visas to the husband and wife and their children.

5                     On 14 July 2005, the appellants sought judicial review of the Tribunal’s decision.  On 29 August 2005, the Minister filed a notice of objection to competency on the ground that the application was not filed within the required 28 days from the making of that decision.

6                     In reviewing the Tribunal’s decision in light of the claims made by the appellants, the Federal Magistrate found that there was no jurisdictional error apparent which vitiated the same.  In regards to a potential breach of s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’), her Honour found that no breach had occurred because the information under review was republished by the appellants through their submissions to the Tribunal and thus was excepted by s 424A(3)(b) of the Act. In any event, the Federal Magistrate upheld the notice of objection to competency of the Minister to the effect that the application for review of the Tribunal’s decision had been filed outside the 28 day time limit and that the Court therefore had no jurisdiction to hear the application.

7                     The notice of appeal filed in the Federal Court raised the following grounds for vitiation of the Tribunal’s decision: ‘breach of the rules of natural justice’, denial of natural justice and procedural fairness, improper exercise of power, and ‘that there was no evidence on other materials to justify the making of the adverse decision’ of the Tribunal.  No particulars of those grounds were provided.

8                     On the appeal the Minister raised an additional matter not raised below: namely, ‘that information provided by the wife appellant formed part of the reason for the Tribunal’s ultimate decision’ and that ‘it could be said that information given by a member of the husband appellant’s family unit (despite being a visa applicant) was not information given by the “applicant” for the purposes of the application’ and, consequently, a breach of s 424A could be argued to have occurred. However, the Minister made the further submission that a similar situation to the present context was considered in MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263, in which Marshall J found that evidence given by a second applicant in a Tribunal proceedings falls within the exception provided in s 424A(3)(b). That decision was followed by Young J in Applicant M47 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [18]-[24]. I do not find that either MZWMQ or Applicant M47 are plainly wrong and, consequently, I am persuaded that the evidence given by the wife appellant is excepted under s 424A(3)(b). 

9                     The appellants were not legally represented at the hearing of the appeal. The husband appellant spoke for all of the appellants and could say little more than plead the wish, on behalf of himself and his family, to the brief effect ‘… if you could just allow me to be able to stay here within the law, nothing outside of the law’.  He indicated that his three youngest children are still attending school in Australia.  He spoke of his skills in repairing trucks and tractors in the context of his potential contribution to the Australian community and his desire that his children remain in Australia. 

10                  In my opinion, the reasons for decision of the Federal Magistrate and the Tribunal cannot be faulted jurisprudentially and the appeal must therefore be dismissed.  However at the risk of being thought to be presumptuous, I would seek to recommend to the Minister that the appellants’ situation be reconsidered on compassionate grounds, on the broader basis of the favourable impression conveyed by the appellant (and his wife) at the hearing, and of what I perceive to be the conceivably significant contribution that this family could well make to Australia.  Of course a judicial officer’s impressions from the Bench are necessarily limited by the circumstances attending the appellate curial process.  Be that as it may, I was substantially impressed by the sincerity of the demeanour of the husband and wife appellants and of their plea to remain in Australia, of course along with their three school attending children. 

Associate:

Dated:         21 December 2006