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

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.

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.

The Tribunal’s decision

7                     The Tribunal found that the appellant had embellished his claims to support his protection visa application and that his evidence was to a large extent, inconsistent and unreliable.  The Tribunal accepted that the appellant fell in love with a Shi'ite woman and sought her hand in marriage but was refused by her family because he was unwilling to convert to Shi’a Islam and because her family were members of Hezbollah.  The Tribunal did not accept that he was asked to join Hezbollah as the claim was inherently implausible “in that Hezbollah appears to have no shortage of willing supporters nor a wish to take reprisals against those who are not” members.  It further noted that this claim had not been made in the statement submitted with his Protection Visa Application or in the original Arabic statement given to his then adviser.

8                     The Tribunal accepted that there had been a violent altercation between the appellant and the woman's family after she became pregnant; however it stated that given the family's background, in the circumstances an extreme reaction might have been expected.  The Tribunal did not accept any of the appellant’s other claims in this regard as they were inconsistent and vague.

9                     The Tribunal held that the appellant was not interrogated by Syrian intelligence at the instigation of the woman's family but because he had been in Kuwait for so long.  The Tribunal rejected the appellant's claim that the woman's family threatened him while he was in Kuwait.  He gave inconsistent evidence as to when this occurred and he continued to work at the same place for some considerable time after the alleged incident. 

10                  The Tribunal found that after the altercation with the woman’s family in 2001, the appellant had not been threatened or harmed by any member of her family and the notion that the appellant would be harmed if forced to return was merely speculative.  The Tribunal concluded that the appellant would not be harmed by the woman's family or members of Hezbollah if he returned to Lebanon and therefore that he did not have a well-founded fear of persecution.

The Federal Magistrate’s decision

11                  The appellant put three grounds of review before the Federal Magistrate.  He claimed that the Tribunal:

(a)                misunderstood his claim and failed to confirm that protection is not available in Lebanon and that the political party in power in Lebanon was persecuting him and could harm him;

(b)               breached s 425 of the Migration Act 1958 (Cth); and

(c)                to understand evidence given at the hearing did not contradict his original statement and therefore had incorrectly attacked his credibility.

12                  The Federal Magistrate, in considering the Tribunal's decision in the light of the claims made by the appellant, stated that it could not be established that the Tribunal failed to have regard to relevant considerations, or that it failed to address a claim because it misunderstood his claims.  Her Honour was satisfied that the Tribunal addressed all the appellant's claims to fear his girlfriend's family and Hezbollah as well as his claim that he would not be protected by the police.  It had given detailed reasons for rejecting these claims. 

13                  Her Honour noted that the Tribunal had rejected the appellant's claim that he would not be protected by the police because his relationship was considered a crime because there was no evidence to support it.  Moreover, if he were to be punished for adultery, this would have resulted from the enforcement of a law of general application.  There was no evidence that it could be applied in a discriminatory fashion.

14                  In relation to the appellant's second claim, her Honour noted that the appellant had not identified any way in which the Tribunal had failed to comply with s 425 of the Migration Act 1958 (Cth) despite the transcript of the Tribunal hearing being before the Court.  Her Honour did not accept that the Tribunal had failed to comply with its obligations under that section.

15                  Thirdly, the Federal Magistrate found it was open to the Tribunal to find that the appellant did not claim in his original statement that he was asked to join Hezbollah, and hence to form the view that there were inconsistencies in his claims.  It was open to the Tribunal on the material before it, to reject the appellant's claims in relation to Hezbollah.  Her Honour noted that the interpretation of independent country information and the weight given to aspects of that information are matters for decision by the Tribunal and not by the Courts. 

16                  Her Honour further stated that the Tribunal was not obliged to put to the appellant for comment matters raised by the material he gave the Tribunal after the hearing as it was excluded from the obligation in s 424A(1) by s 424A(3)(b) of the Act, being information given by the appellant to the purposes of the review.  Her Honour was satisfied that there was no unfairness in the Tribunal relying on the information supplied by the appellant after the hearing and found that there was no requirement for a further hearing.

17                  Accordingly the Federal Magistrate found that the Tribunal’s decision showed no evidence of jurisdictional error and dismissed the application.

This appeal

18                  The notice of appeal filed in this Court raises two grounds of appeal: (a) that the Federal Magistrate “committed jurisdictional error in ignoring s 91R(1)(a) of the Migration Act”; and (b) that her Honour “failed to distinguish between Hezbollah and Shi’a, and to recognise that the applicant's religion was and continues to be an essential and significant reason for the persecution that he feared”.

19                  At the hearing of the appeal, the appellant who appeared for himself with the assistance of an interpreter submitted that the factual findings of the Tribunal were made in error.  In particular he claimed that the Tribunal’s findings of inconsistency of this claims about Hezbollah and the significance of the woman’s family’s membership of the group were incorrect. 

20                  In considering the claims that the appellant made in relation to Hezbollah and Shi’a the Federal Magistrate addressed both the Tribunal’s findings and the appellant’s submissions.  Her Honour said at [31-34] of her reasons:

The applicant contended that he had in fact referred to Hezbollah on a number of occasions in his Arabic statement.  However it is notable that the issue that the Tribunal was determining was not whether he mentioned Hezbollah, but rather whether he had made a claim that he was asked to join Hezbollah.  The statement translated from Arabic does record that the applicant met his named girlfriend, a Shi’ite, whose family were members of Hezbollah in Lebanon in 2001 and that he asked for her hand in marriage, but states her parents refused him “… because I am Sunni and because her parents are Shi’ite and belong to Hezbollah”.

The applicant later referred in that statement of Hezbollah starting to look for him and claimed that he could not hide because of the power of Hezbollah and the strong ties of the family with Hezbollah.  He claimed that because his relationship was a crime he could not obtain police protection and it was possible he would be persecuted, jailed, or even handed to the family or to Hezbollah to kill him.

However it was open to the Tribunal to find that the applicant did not claim in that statement that he was asked to join Hezbollah and hence to form the view, as set out above, that there were inconsistencies in the claims made by the applicant in that respect at various times.  In particular it was open to the Tribunal to conclude that such a claim was not made at the time of the original protection visa application either in the statement prepared by the migration agent or in the translated Arabic statement made by the applicant.

21                  The first respondent submitted that these paragraphs and others showed that "the Federal Magistrate well understood this distinction".  As the first Respondent's written submissions pointed out, the Tribunal also had regard to independent country information when considering this claim.  The Federal Magistrate concluded that the Tribunal's use of such information did not disclose jurisdictional error.  Her Honour said, at [37]:

It was open to the Tribunal on the material before it to reach that conclusion that it did.  The weight to be given to particular items of independent country information is a matter for the Tribunal … and the choice and interpretation of country information is a factual matter for the Tribunal alone. 

22                  The first respondent submitted that the appellant's grounds of appeal misconceived the basis for the Tribunal's decision.  In my view this submission is correct.  The Tribunal rejected the appellant's claims not because of the lack of convention related grounds but rather because it did not accept that the claims were true.  In their detailed analyses of the appellant's claims both the Tribunal and the Federal Magistrate explained the inconsistencies in the appellant's claims.  It was well open to the tribunal to reach the conclusion that not all of the appellant’s claim could be accepted.

23                  In my opinion the Federal Magistrate’s reasons for dismissing the application for review were correct and I find no error in them or in her Honour’s conclusion.  The appeal must therefore be dismissed with costs.

24                  At the conclusion of the hearing, Miss Clegg, counsel for the first respondent sought an order for costs in a fixed amount.  Miss Clegg sought leave to file in court and rely on an affidavit by a solicitor for the respondents concerning the fees incurred by the first respondent.  She informed the Court that the affidavit had been given to the appellant just before the appeal commenced and that she understood that it, or “the gist of it”, had been translated for him.  While I understand that fixing the amount of costs may reduce the amount for which an unsuccessful appellant is liable, I am not prepared to make such an order against an unrepresented litigant who has not had the opportunity to consider the application for such an order other than a brief explanation of what the affidavit says.  Miss Clegg, appropriately, did not press the issue and no such order was made.

25                  The orders of the Court therefore are that the appeal be dismissed and that the appellant pay the first respondent’s costs of the appeal.

Associate:

Dated:         10 August 2009