FEDERAL COURT OF AUSTRALIA

SZVVE v Minister for Immigration and Border Protection [2015] FCA 837

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application to extend the time in which to seek leave to appeal and, if time is extended, for leave to appeal. The Federal Circuit Court dismissed the applicant’s claims for judicial review of a decision by the Refugee Review Tribunal (‘the Tribunal’) to refuse to grant him a protection visa. The dismissal by the Federal Circuit Court was summary in nature, following a show cause hearing. Such an order is interlocutory so that leave is required to appeal to this Court.

2    At the hearing the applicant appeared for himself but was accompanied by his brother. At their request I permitted the brother to make additional submissions. The brother’s submissions to me were passionate and, if I may say with respect, heartfelt. He conveyed to me that their family (apart from their very elderly mother and one brother) had had to flee Lebanon. The various siblings – I think there were seven – were in a number of countries including Germany, Australia and Cyprus. Their mother remained in Beirut with one of their brothers. The applicant was very damaged by events in Lebanon and was really not mentally fit to be returned there. The two brothers work here together as musicians. It was very obvious to me that the brother is genuinely very upset at the idea that the applicant might be returned to Beirut, as is the applicant himself. Both fear for his safety and do not see the rationality of returning him to Lebanon.

3    Whether it is a good idea for the applicant to be given a protection visa is a question which the Migration Act 1958 (Cth) does not give to this Court or the Federal Circuit Court. It is a question which, for better or worse, is given to the Refugee Review Tribunal or, as it now is (plus ça change), the Administrative Appeals Tribunal. The role of the Federal Circuit Court is confined, in substance, to reviewing the Tribunal’s decision for jurisdictional error. The role of this Court on any subsequent appeal is to determine whether the Federal Circuit Court itself committed legal error.

4    I say these things to make clear that whilst I have listened carefully to what the two brothers had to say most of it went to an issue upon which I am not permitted to adjudicate, namely, whether I think it would be a good idea to grant the applicant a visa. Perhaps unfortunately for the applicant, my personal views on the matter are of no consequence.

5    The question for me is a much shorter one. It is whether the time should be extended to permit him to appeal out of time.

6    I do not think that it should. The proposed grounds of appeal were six:

‘1    Her Honour Emmett at the time did not have the Court Book and was not aware of my circumstances, especially what appeared in Court Book page 111 onwards.

2.    Her Honour Emmett failed to consider my evidence before the Tribunal and I was confused to refer her to relevant part of the Affidavit filed in Court on 23 April 2015.

3    Contrary to the judgement [sic] of Judge Emmett (ex tempore) dated 1 June 2015 I have an arguable case which was denied by Her Honour as she failed to refer to Court Book and relied totally on the Refugee Review Tribunal’s decision without considering further information supporting my case.

4.    I was surprised that Her Honour requested copy of the Court Book from the Lawyers of the First Respondent and did not have or gave herself enough time to see why I disagree with the Refugee Review Tribunal’s decision.

5    If the Tribunal as well as Her Honour accepted that I was shot by a sniper in 1986, and that I fled to Cyprus to escape and I was detained by the Police at the Airport which, at the time, was controlled by Hezbollah. My argument is the Tribunal had no reason to deny my subjective well founded fear of persecution which means the Tribunal’s decision is unreasonable as it failed to accept my fear of persecution should I be compelled to return to Lebanon because Hezbollah is dominating the area and I proved that anywhere else in Lebanon I will not be safe as per Court Book p. 111-132. Therefore, I was denied fairness and justice.

6.    I hope that the Honourable Federal Court of Australia will give me the opportunity to consider my case as Her Honour Judge Emmett dealt harshly and quickly and did not have sufficient evidence for her judgment.’

7    I propose to treat this as raising three sets of issues:

(a)    the consequences of the unavailability of the Court Book at the commencement of the hearing in the Federal Circuit Court;

(b)    the significance of the Court’s refusal to receive the transcript; and

(c)    the significance of the event with the sniper in 1986.

8    It is useful to consider these in turn.

(a) The Court Book

9    The applicant’s argument under this heading related to the Court Book used in the hearing before the Federal Circuit Court. I was not provided with a copy of this book during the hearing before me. Following the hearing, since it was clearly important, I caused enquires to be made of the Federal Circuit Court to obtain a copy of it. Curiously, the records of that Court did not appear to include the book. I then requested the Minister’s solicitors to provide me with a copy. This my associate did on 4 August 2015. On 6 August 2015 the Minister’s solicitors provided me with a copy of the book. In preparing these reasons, I have taken the book into account although its role in this Court is necessarily more tangential.

10    The applicant’s argument here, as I understood it, was that the learned Federal Circuit Court judge did not have the Court Book with her at the time the application was heard. Her Honour was provided with a copy during the course of the hearing by the Minister’s representative. The judge delivered reasons ex tempore. It would have been impossible, so the argument ran, for her Honour to have mastered the detail of the Court Book before delivering those reasons with the further suggested inference that the Court’s orders disposing of the proceeding had been made in circumstances where it was not fully seized of the detail of the case.

11    I do not accept that this argument has sufficient prospects of success to warrant a grant of leave. It does not follow that just because the judge could not locate the Court Book once the hearing started that her Honour had not had access to it. It just means that, for whatever reason, it did not find its way on to the Bench on the day. In that regard, it is to be noted that the Court Book was in fact filed on 6 March 2015. Even if that were not so, I do not accept that an experienced judge of the kind who heard this case would not have been able to master the subject matter of the hearing. In any event, her Honour had access to the Court Book in the fortnight before the revised version of the ex tempore reasons was released.

(b) The Refusal to Admit the Transcript

12    The transcript ought to have been received into evidence if it contained material which was relevant to a fact in issue on the application. Relevance might be looked at in two ways in this context. First, it could be examined formally by reference to the application which had been filed. This would require examination of the actual grounds pursued. The two grounds were:

‘1.    The Tribunal and the Department of Immigration accepted my evidence that I was shot by a sniper in 1986 and travelled to Cyprus in 1995 and was detained at the airport on my return and interrogated, yet failed to see my subjective fear of persecution.

2.    The Tribunal misunderstood and misinterpreted the law.’

13    The Federal Circuit Court judge did not think that the transcript could be relevant to the proceeding and I infer from these two grounds that in this her Honour must have been correct. Secondly, the matter could also be approached on a more liberal basis, accepting, as so often happens in migration cases, that beneath the patina of procedural irregularity there may yet lie substance. In this case, it is clear from the judge’s reasons that her Honour invited the applicant to identify any other relevance the transcript might have but that this invitation was not taken up. Her Honour did not, in those circumstances, err in refusing to admit the transcript (which was attached to an affidavit). In this Court I admitted the affidavit annexing the transcript subject to relevance. I have perused it but my attention was not drawn to any particular passage.

(c) The Sniper Event in 1986

14    To understand this point, it is necessary to understand a little more about the nature of the applicant’s claims in the Tribunal. The applicant is 51 years old and was born in Lebanon. He arrived in Australia on 1 April 1996 and has been involved in litigation with the migration authorities more or less ever since. The recitation of this saga would not assist. Its most recent instalment has involved a delegate of the Minister considering whether he met the criteria for complementary protection, i.e., in effect whether, quite apart from his refugee status, Australia had a non-refoulement obligation towards him.

15    To consider that submission required the delegate (and after him the Tribunal) to traverse again the substance of the applicant’s earlier claims for protection as a refugee. That application was refused by the Tribunal as long ago as 22 May 1998.

16    In the course of dealing with the present matter the Tribunal accepted that the applicant had been shot by a sniper in 1986 although it did not accept that the sniper was from Hezbollah. It accepted that the applicant had fled to Cyprus in 1993 and that upon his return had been interrogated by Hezbollah and released shortly afterwards. It rejected a number of other aspects of the applicant’s account, concluding that he was prone to giving generalised and exaggerated evidence. For example, it rejected his evidence that he had received death threats from Hezbollah.

17    The Tribunal did not think that the applicant would suffer significant harm if returned to Lebanon. It also did not accept that he was suspected of being a spy by Hezbollah.

18    The argument now raised by the applicant is that he had a subjective belief that if he was returned to Lebanon he would be persecuted and this was sufficient to make good the complementary protection claim. Both the Court below, and before it the Tribunal, were said to have failed to have understood this.

19    This argument cannot succeed. The issue before the Tribunal was whether the delegate was satisfied that Australia had complementary protection obligations in relation to the applicant.

20    Whether this is so was governed by s 36(2)(aa) of the Migration Act 1958 (Cth) which would justify the issue of a protection visa if the Minister was satisfied that the applicant was:

‘(aa)    a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

…’

21    This does not pose a question in which the subjective views of the applicant have any part to play. Consequently, it was not erroneous for the Tribunal to leave out of account the applicant’s subjective views. Indeed, it would have been erroneous for it to have done otherwise than it did.

22    It is not altogether clear to me that this argument was advanced in the Court below. Regardless, I would not be disposed to extend time to permit this point to be ventilated.

Conclusion

23    The application will be dismissed with costs.

Associate:

Dated:    13 August 2015