FEDERAL COURT OF AUSTRALIA

SZLNW v Minister for Immigration and Citizenship [2008] FCA 910

MIGRATION – Refugee Review Tribunal – judicial review – procedural fairness – failure of Tribunal to request specific details from the applicant – Tribunal reaching decision based upon applicant not providing specific details – whether failure constituted breach of s 425 of the Migration Act 1958 (Cth)

Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967

Migration Act 1958 (Cth) ss 424A, 425, 501

Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 referred to

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 followed

Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220 referred to

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 applied

SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 followed

SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 cited

SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 cited

SZLNW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 176 OF 2008

COWDROY J

17 june 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be upheld.

2.                  The application for review be remitted to the Refugee Review Tribunal, differently constituted, for a hearing according to law.

3.                  The First Respondent pay the costs of the Appellant.

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

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Smith delivered in the Federal Magistrates Court of Australia on 22 January 2008 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) signed on 27 September 2007. The Tribunal’s decision affirmed the decision of a delegate of the first respondent (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the protection visa’).

FACTS

2                     The appellant arrived in Australia on 21 March 1987 holding a Subclass BF-C visa. The appellant claimed that he was born in Lebanon on 20 March 1961. He held no passport, stating that it had been issued in Lebanon but had been lost.

3                     The appellant was convicted of various offences in Australia and was incarcerated in a correctional centre from 1990 to 1994 and again from 2001 to 2006. As a consequence, the appellant’s Subclass BF-C visa was cancelled by the Minister pursuant to s 501 of the

Migration Act 1958 (Cth) (‘the Migration Act’) on 18 October 2006. The appellant was subsequently taken to immigration detention.

4                     On 14 August 2007 the appellant made an application for the protection visa. On 17 August 2007 a delegate of the Minister refused such application. On 23 August 2007 the appellant applied to the Tribunal for a review of the delegate’s decision.

THE TRIBUNAL DECISION

5                     Before the Tribunal the appellant claimed that he was a soldier in the South Lebanon Army (‘the SLA’) between 1982 until 1985 and that in consequence of such service he was fearful of being subjected to persecution by Hezbollah, the Lebanese authorities and others who oppose the SLA. The appellant also claimed that he feared persecution from persons he had arrested during his service in the SLA in Lebanon.

6                     The Tribunal was satisfied that the appellant had a genuine fear of Hezbollah, the Lebanese authorities, persons whom he arrested while serving in the SLA and others in Lebanon. However, following its consideration of the external information, the Tribunal determined that the appellant’s fear was not well-founded.

7                     The Tribunal found:

The Tribunal is aware that SLA members were detained and imprisoned after Israel withdrew from Lebanon in 2000. However, the Tribunal is satisfied by information from external sources that the period of widespread arrests and detention of former SLA members is now over and former SLA members in Lebanon are no longer commonly investigated or imprisoned as they were in 2000.

8                     The Tribunal also found:

However, the Tribunal is satisfied that in the few recent instances when SLA members have been targeted by the authorities, Hezbollah, or any one else in Lebanon, those targeted were easily identifiable members of the SLA, mostly from southern Lebanon where the SLA was active, and implicated in activities suggesting collaboration with Israel.

9                     The Tribunal concluded:

The Tribunal finds that the applicant does not have such a profile as he ceased to be involved with the SLA over twenty two years ago, he is not from southern Lebanon, and he has not been involved in any activities which might suggest that he is either assisting Israel or collaborating with Israel. The Tribunal finds that the applicant will not attract the adverse interest of Hezbollah, or anyone else opposed to the SLA in Lebanon, as he is a person from northern Lebanon who ceased to be involved with the SLA many years ago. The Tribunal finds that he does not have the profile of an individual who will attract the adverse interest of Hezbollah or any one else in Lebanon because of his former association with the SLA.

10                  The Tribunal accordingly concluded that the appellant did not have a well-founded fear of persecution in Lebanon for reasons of political opinion or any other Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 reason and affirmed the delegate’s decision.

Application for review in the Federal Magistrates court

11                  By further amended application filed in the Federal Magistrates Court of Australia on 22 January 2008 the appellant sought judicial review of the Tribunal’s decision. Federal Magistrate Smith considered the appellant’s three grounds of review.

Ground 1

12                  The first ground of review claimed that the Tribunal made a jurisdictional error ‘by failing to apply the correct test to determine that there was a real chance of persecution’ in assessing whether the appellant’s fear of persecution was well-founded.

13                  Smith FM noted that it was not necessary for the Tribunal to discuss the chance of harm occurring which it found was less than probable, provided the Tribunal made findings of fact which permitted a conclusion that the fear of persecution was not well-founded: see Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220 at 239-241; Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]‑[14]. His Honour noted that such a factual finding had been made by the Tribunal, and accordingly found that the Tribunal had not failed to appreciate or apply the ‘real chance’ test.

Ground 2

14                  The appellant claimed that the Tribunal made a jurisdictional error by failing to consider whether the appellant’s fear of persecution was well-founded. The appellant claimed that the Tribunal failed to consider the risk of persecution in the reasonably foreseeable future.

15                  Smith FM was satisfied that the Tribunal had taken such risks into consideration and rejected this ground of review.

Ground 3

16                  The appellant claimed that the Tribunal had breached s 424A and/or s 425 of the Migration Act by failing to invite the appellant to give evidence and to make submissions relating to the identities of persons who might seek to target the appellant if he returned to Lebanon.

17                  Smith FM found that the Tribunal was entitled, on the evidence before it, to draw the inference that the appellant could not name the persons whom he feared. Smith FM found that such inference did not comprise information which the Tribunal was required to provide to the appellant pursuant to ss 424A and 425 of the Migration Act.

APPEAL TO THIS COURT

18                  By notice of appeal filed in this Court on 12 February 2008 the appellant raises six grounds of appeal. However, at the hearing counsel for the appellant acknowledged that the grounds essentially raise two principal grounds of appeal as described hereunder.

Ground 1

19                  Under this ground, three separate issues are raised. Firstly, the appellant submits that the Tribunal erred by failing to consider whether there was a real chance that the appellant would suffer persecution if he returned to Lebanon. The appellant submits that the Tribunal’s finding that ‘… those targeted were easily identifiable members of SLA, mostly from Southern Lebanon…’ did not take account of former SLA members who do not satisfy such profile. It is submitted that the Tribunal failed to apply the correct test because it did not take account of a person who did not have the characteristics relied upon by the Tribunal to reach its conclusion that there was no chance of persecution, and that its finding left open the possibility that the appellant could be the subject of persecution. The appellant submits that the Tribunal accordingly failed to apply the test in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where Mason CJ said at 389:

If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.

20                  Smith FM was not persuaded that the Tribunal failed to apply the ‘real chance’ test. His Honour, in rejecting the appellant’s submissions, observed that the appellant had concentrated attention on particular parts of the Tribunal’s reasoning in isolation from its general expression. His Honour noted that such approach had been discouraged in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 291. The Court is unable to find any error in his Honour’s reasoning.

21                  Secondly, the appellant submits that the Tribunal considered the risk of persecution in the past and present but did not consider that the appellant could suffer harm in the future. The appellant relies upon the decision of this Court in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at [28]-[30] which held that the Court must have an ‘adequately forward-looking analysis’ (see SZGHS per Allsop J at [30]) when considering the prospects of persecution.

22                  The Tribunal’s reasons show that in reaching its conclusion it considered external information together with information supplied subsequent to the hearing in a letter from the appellant’s adviser. Such letter included an extract from an Amnesty International report which referred to the possibility of reprisal attacks by Hezbollah against former Israeli collaborators. The Tribunal found:

The adviser argued that Hezbollah was subjecting former SLA members to persecution and the threat of harm has increased significantly since the outbreak of hostilities with Israel in 2006. The adviser referred the Tribunal to several reports dealing with reprisals against SLA members who were suspected of collaborating with Israel before and after the 2006 conflict. The adviser argued that the applicant will be at risk of imprisonment and denied protection by the State because he was with the SLA.

23                  The Federal Magistrate excerpted the above passage and concluded that the Tribunal had considered whether, in the future, the appellant would be subjected to the same risk.

24                  The Court finds no error in the approach of Smith FM to his analysis of the Tribunal’s reasons. Since it was not suggested that the appellant had suffered persecution in the past or the present, the only persecution which was under consideration by the Tribunal was future persecution.

25                  Thirdly, the appellant submits that the Tribunal erred when it stated that the appellant’s fear of persecution because of his SLA membership ‘was the only reason he was fearful of returning to Lebanon’. In support of such submission the appellant relies upon the following extract from the transcript:

Applicant      … And I am worried and scared to go back there maybe I be prosecuted or I be harmed if I go back there.

Tribunal         OK any other matters that concern you about being, going back to Lebanon?

Applicant      That’s the main reason.

26                  Although this submission does not appear to have been raised before Smith FM, the Court finds that the Tribunal was entitled to draw its conclusion after the appellant had informed the Tribunal that his membership in the SLA was the ‘main reason’ for his fear of persecution and because he advanced no other reason.

27                  The Court rejects the three submissions of the appellant comprising the first ground of appeal.

Ground 2

28                  The Tribunal found that although the appellant claimed that he would be targeted by persons whom he had arrested during his SLA service, the appellant was unable to name or identify any such persons and found that the risk thereof was accordingly remote. The Tribunal’s reasons state:

The Tribunal considered the applicant’s associated claim that he may be targeted by persons he arrested during his SLA service. He claims they will now seek revenge. However, the applicant could not name or identify those persons and the Tribunal finds that the risk is remote that persons arrested by the applicant over twenty years ago will now, or in the reasonably foreseeable future, seek to harm.

29                  The appellant submits that the Minister failed to comply with s 425 of the Migration Act because the Tribunal did not give an indication to the appellant that it might be unable to reach a favourable decision in the absence of the appellant naming or identifying the persons who might seek revenge against him.

30                  The relevant portion of the transcript of the Tribunal hearing records the following:

Applicant         … So some of my mission is to pick up people we know we suspect those people that are from outside the zone and they come as a spy or as a members of the militia coming inside the zones and other things. We used to investigate even members of the SLA involved in going work for the other sides and we used to investigate those people. This is very hard for me, those people, because they know me. Now they didn’t fall for the other side they’d be in position. I don’t know what their position now in the government or in the militia there. And this is a very concern for me. They know me very good.

Tribunal           Alright, anything else before we finish? Any questions or comments?

Applicant         I put all my case on the form. And I have [indistinct].

Tribunal           Well look, I can’t give you any indication at this stage because I’ve got to think about everything again.

31                  The Tribunal did not question the appellant concerning his claim that he might be persecuted by those persons whom he had arrested. However, after the hearing concluded the Tribunal wrote to the appellant by letter dated 19 September 2007 (‘the Tribunal letter’) inviting him to comment on or respond to information he had provided to the Tribunal. The Tribunal letter drew attention to the appellant’s claims that he was afraid to return to Lebanon because Hezbollah, the Lebanese authorities and others who opposed the SLA in Lebanon would seek to harm him. The Tribunal letter continued:

The Tribunal asked you to describe your activities with the SLA and you stated you were a soldier attached to the military police division. You stated you were involved in detaining suspects and taking them to senior officers for investigation. You stated that you were afraid that persons you arrested while you worked for the SLA may seek to harm you in the future if you return to Lebanon.

32                  The Tribunal letter then referred to external information and advised the appellant that the Tribunal may conclude that his fear of harm in Lebanon by opponents of the SLA was not well-founded. The Tribunal letter advised the appellant that a further opportunity was given to him ‘to comment on or respond to this information if you wish’.

33                  The Tribunal letter did not request the appellant to identify, by name, any of those persons whom he feared might cause him harm, nor did it indicate that the Tribunal’s decision may be decided adversely to him if he did not provide such information.

34                  The appellant’s adviser responded to the Tribunal by letter dated 24 September 2007 which enclosed an extract from the above mentioned Amnesty International report and provided a statement in elaboration of such report. The adviser did not identify in the letter any persons whom the appellant feared might cause him harm.

35                  Smith FM said at [40]-[41]:

In my opinion, it should have been apparent to him [the appellant] and his advisers when doing so, that the Tribunal might draw inferences from the absence of any identification of particular persons who were feared, or of incidents or circumstances which suggested that there were particular persons who had an interest in pursuing him after 20 years (compare Bennett J in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [21] and SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14]).

In my opinion, the obligations on the Tribunal under s.425 to warn an applicant as to the issues in the review did not, in the present case, require it to alert the applicant to the possibility that it might draw an inference from his evidence that he could not name or identify the persons whom he claimed to fear.

36                  The appellant relies upon SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 in which the High Court of Australia held that the Tribunal erred because it did not challenge or express any reaction to answers provided by the appellant and later rejected claims which had been accepted by the delegate.

37                  In SZBEL the High Court of Australia said at [35]:

The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.

38                  Smith FM said at [40]:

The present case has no direct parallel with SZBEL, since the Tribunal’s finding which is complained of did not concern an issue of credibility which appeared uncontentious in the delegate’s decision. In the present case, the applicant first presented his full claims to the Tribunal, and in particular his claim to fear reprisal from individuals in whose arrest he had been involved more than 20 years previously.

39                  Contrary to such finding, and the Minister’s submission that SZBEL only relates to issues of credibility, the Court finds that SZBEL does apply. The decision in SZBEL makes it plain that if the Tribunal is to determine the application before it adversely to the applicant for a specific reason, it is obliged to put that circumstance to the applicant and to invite the applicant to respond. The Court in SZBEL said at [47]:

But where…there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [emphasis in original]

40                  The Tribunal letter addressed the appellant’s claims relating to his fear of persecution including his claim that he feared persecution from individuals whom he had arrested, and invited the appellant to comment on such claims generally. It was necessary for the Tribunal to put directly to the appellant that one of its concerns was his inability to identify the persons who might harm him if the Tribunal was going to make a factual finding adverse to the appellant on that issue. Since the Tribunal had not specifically asked for the identity of the relevant persons at the hearing and had not requested details of such in the Tribunal letter, the appellant was not placed on notice that unless he provided such detail, the Tribunal might make an adverse finding against him.

41                  The Court is satisfied that the ‘issues to which those reasoning processes were directed’ (see SZBEL at [21]) were not adequately notified to the appellant. The Tribunal’s finding that the appellant could not ‘name or identify those persons’ was a finding in respect of an issue upon which the appellant had not been afforded an opportunity to respond.

42                  The Court is satisfied that a breach of s 425 of the Migration Act has occurred. It follows that the appellant’s appeal is upheld. The first respondent is to pay the costs of the appellant.  

Associate:

Dated:         17 June 2008