FEDERAL COURT OF AUSTRALIA

SZUYB v Minister for Immigration and Border Protection [2017] FCA 661

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

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

REASONS FOR JUDGMENT

DOWSETT J:

General

1    The applicant is a citizen of Lebanon. On 16 November 2012, he applied to the Department of Immigration for a Protection (Class XA) visa. On 15 March 2013 a delegate of the first respondent (the “Minister”) refused the application. The applicant applied to the second respondent (the “Tribunal”) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision. The applicant then applied to the Circuit Court for review of that decision. The application was unsuccessful. The applicant now seeks leave to appeal from that decision. In the Circuit Court and in this Court, the Tribunal has submitted to the relevant Court’s order, save for any order as to costs.

PROCEEDINGS IN THE REFUGEE REVIEW TRIBUNAL

2    On 28 August 2013 the applicant appeared before the Tribunal. The hearing was conducted with the assistance of an interpreter. The applicant was represented by a registered migration agent. He contended that he was at risk of harm in Lebanon because the government or its agents imputed to him a pro-Israel political opinion. Such imputation was the result of his father’s arrest and conviction for espionage on behalf of Israel. The applicant said that his father was arrested on 25 February 2010 and, on 28 May 2013, sentenced to 20 years’ imprisonment.

3    In support of his case, the applicant said that in May 2010, not long after his father’s arrest, he was detained for three days, during which time he was interrogated by Lebanese Army intelligence officers. He claimed that he was blindfolded, handcuffed, slapped, and made to stand for long periods of time. He said that, after his release, he was subjected to constant surveillance by Army intelligence officers. In October 2010, they required the applicant to inform them when a colleague arrived at a construction site at which he was employed. Finally, the applicant said that when returning to Lebanon from an overseas trip in October 2011, he was detained at the airport by Immigration officials for an extended period of time and questioned about his father.

4    The applicant also claimed that since his father’s arrest, neighbours had verbally abused and shoved him. He said that on occasions, his mother and sisters had found that their car tyres had been flattened, and the word “Jew” written in dust on their cars. Further, in September 2011 the family was evicted from its apartment and presented with a demand for unpaid rent. The demand stated that the apartment had been used, “for the operation of spying equipment in favour of the Israeli enemy”, in violation of the lease agreement (according to a translation provided to the Tribunal).

5    The Tribunal accepted that the applicant’s father had been convicted on espionage charges as described; that the applicant was detained for three days of questioning in May 2010, which detention and questioning resulted in some “low level physical discomfort”; that he was the subject of monitoring until his father was sentenced in 2013; and that he was detained for questioning at the airport in October 2011. The Tribunal was “satisfied that the applicant was of no interest to the Lebanese authorities after he was questioned and released in March 2010”. In support of its conclusion, the Tribunal noted that the applicant was never charged; he obtained a passport; he left Lebanon twice; and had not been questioned again in connection with his father’s crimes, despite remaining in Lebanon (other than for a trip to Malaysia) until his departure for Australia in October 2012. The Tribunal seems to have concluded that the 2011 interrogation was not attributable to any suspicion concerning the applicant’s activities, but rather to his being his father’s son. His sisters in Lebanon have not been impeded in their studies or employment. Consequently, in relation to the Lebanese authorities, the Tribunal was, “satisfied that there is no risk that the applicant would be subjected to suspicion, much less serious harm enough to amount to either persecution or significant harm, in the future”.

6    In relation to his alleged risk of harm by neighbours, the Tribunal accepted that he and other members of his family had been subjected to insults and some harassment, because of his father’s arrest and conviction for espionage. Further, the Tribunal accepted that they had been evicted from their apartment. The Tribunal did not accept that such eviction amounted to persecution within the meaning of the Refugee Convention and s 51 of the Migration Act, nor ‘significant harm’ for the purposes of s 32(2)(aa) of that Act. The Tribunal observed that at the time of the eviction, at least 19 months of unpaid rent was owed. The applicant moved to a different address with no other difficulties. The adverse conduct by neighbours was “minor”, as were the insults and verbal abuse, and any damage to car tyres. The Tribunal noted that had the treatment been other than minor, the applicant would have moved to another area where he was not recognised as the son of a convicted spy for Israel. That he did not do so led to the inference that, “the harm to which he was subjected did not amount to serious harm or significant harm for the purposes of s 36. Hence the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. It was also not satisfied that if the applicant were returned to Lebanon, there would be a real risk that he would suffer significant harm.

PROCEEDINGS IN THE CIRCUIT COURT

7    In the proceedings before the Circuit Court, the Minister sought an order under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application for review be dismissed because it did not raise an arguable case for the relief sought. The Circuit Court ultimately dismissed the application on that basis.

8    The Applicant’s ground for seeking review was that:

The Refugee Review Tribunal underestimated my fear of persecution and harassment and misunderstood my claim.

9    The Circuit Court noted that in the absence of particulars, such ground disclosed no jurisdictional error. Nonetheless, the primary judge considered submissions made by the applicant in the course of the hearing.

10    The applicant submitted that the Tribunal, “accepted too many things in my case and she denied other things.” He submitted that his father’s arrest and conviction, his eviction form the apartment, detention for questioning and harassment constituted significant harm within the meaning of s 36(2) of the Migration Act 1958 (Cth).

11    The primary Judge concluded that save for one exception, “it is not arguable that [the Tribunal’s] findings were not reasonably open to the Tribunal for the reasons it gave.” The exception related to a finding by the Tribunal that the applicant did not suffer serious or significant harm while detained for questioning in May 2010. However this error did not raise an arguable case that the Tribunal had made a jurisdictional error. As his Honour concluded:

The questions the Tribunal was required to address, and which there is no argument that it did address, are whether for one or more of the reasons stated in Art.1A(2) of the Refugees Convention the applicant has a well-founded fear of persecution, and whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Lebanon, there is a risk the applicant will suffer significant harm. There is no doubt the Tribunal considered these questions.

12    As noted earlier, the Tribunal reached the view that, “there is no risk that the applicant would be subjected to suspicion, much less harm serious enough to amount to either persecution or significant harm, in the future.” The primary Judge concluded that, “It is not arguable that it was not reasonably open to the Tribunal to be so satisfied, and for the reasons it gave.”

THE CURRENT APPLICATION

13    In determining whether leave to appeal should be granted, the Court will consider whether the decision at first instance is attended by sufficient doubt as to warrant its reconsideration (Rawson Finances Pty Limited v Deputy Commissioner of Taxation (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ), and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).

14    Whilst the applicant would suffer substantial injustice if the Tribunal’s decision be wrong, there is insufficient doubt to warrant reconsideration on appeal.

15    In his application, the applicant states that:

(1)    I do not agree with the decision of the Tribunal as well as the judgement of [the primary Judge] as both were made contrary to the evidence before them.

(2)    I rely on the grounds listed in my Draft Notice of Appeal.

16    The Draft Notice of Appeal identifies the following grounds:

(1)    The judgment of [the primary Judge] is unreasonable based on the evidence before him.

(2)    It was not disputed that my father was detained on 25 February 2010 and charged with having spied for Israel and that on 28 May 2013 my father was sentenced to 20 years imprisonment.

(3)    It was not also disputed that I was detained by Lebanese Army Intelligence Officers for three days and seriously interrogated and was blindfolded, handcuffed, slapped and made to stand for long periods.

(4)    It was not disputed that I was evicted from rental apartment with my family and verbally abused and called a traitor.

(5)    His Honour had uncontested evidence as well as the Tribunal that the treatment should amount to serious harm and significant harm and both the Tribunal and his Honour erred in considering that what had happened to me did not amount to serious harm sufficient to constitute persecution and meeting the definition of the Migration Act as a person who suffered significant harm as a result that my father was convicted on espionage charges.

(6)    I ask the Honourable Federal Court Judge to look at my situation with more care because I am a victim and I was denied protection in Australia because the Tribunal misapplied the law.

prospects on appeal

17     Ground 1 is not particularised, and in my view, can be no more than an expression of opinion.

18    Grounds 2 – 4 recite claims which were accepted by both the Tribunal and the Circuit Court..

19    Ground 6 seeks review on the basis of the Tribunal’s alleged error but says nothing about such error.

20    In my view, ground 5 is the only possibly arguable ground. In light of the claims accepted as alleged in grounds 2-4, the applicant contends that the Circuit Court erred in concluding that, “what happened to me did not amount to serious harm sufficient to constitute persecution and meeting the definition of the Migration Act as a person who suffered significant harm ...”.

21    As the Circuit Court Judge said at para [18] of his decision, the issue before the Tribunal was not whether the applicant had suffered serious or significant harm in the past. It is whether he had a well-founded fear of persecution in the future or whether, as a necessary and foreseeable consequence of his being returned to Lebanon, there was a real risk that he would suffer serious or significant harm in the future.

22    The applicant points to the fact that, in the past, he suffered harm. The Tribunal and the Court conceded as much. In many cases, past events will offer an indication as to likely future events, but that is not always so. In this case, because of events since 2010, the Tribunal concluded that there was no well-founded fear of persecution in the future, nor were there substantial grounds for believing that, if returned to Lebanon, there would be a real risk that he would suffer significant harm.

23    At the hearing before this Court, the applicant submitted that the Tribunal should have found that he would face the risk of significant harm if returned to Lebanon, implying that the primary Judge erred in failing to grant the relief sought. The applicant referred to a number of arguments raised in the Tribunal, including his fear of being detained at the airport should he re-enter the country, the harassment he was subjected to by his neighbours, and his eviction from his apartment. These matters were all considered by the Tribunal.

24    The applicant raised one other matter. The Tribunal found that at the time of the eviction of his family from their unit, they owed rent for 19 months. It apparently derived that information from a document supplied and translated by the applicant, presumably the notice of eviction to which I have previously referred. Before me, he seemed to suggest that in fact, the rent had been paid in advance by his father. I understood him to suggest that such information was contained in the notice. The notice is not in evidence before me. The applicant seems not to have denied the debt, either before the Tribunal or before the primary Judge. If the Tribunal misunderstood the content of the notice in such a way as to lead to jurisdictional error, it could have been reviewed at first instance, but no application was made for review on that basis.

25    In any event, the relevance of the eviction depended upon the reasons underlying it. It was clearly related to the applicant’s father’s conduct. The Tribunal seems to have accepted as much. Had the Tribunal accepted that the rent had been paid, it would not have led it to doubt that the eviction was because of the father’s activities. If anything, it would have treated such a false assertion as reinforcing that conclusion.

26    Neither the primary Judge nor this Court may review the merits of the applicant's case. As the primary Judge concluded, the Tribunal's conclusions were reasonably open to it.

27    The primary Judge’s decision is not attended by sufficient doubt to warrant its reconsideration on appeal. As to the risk of substantial injustice if the decision is wrong, I note that in Décor at 400, the Full Court distinguished between an application for leave to appeal in connection with an interlocutory decision concerning a procedural matter, and such an application in connection with rights. The present case falls into the latter category. I accept that for the applicant, there may be significant adverse consequences if the primary Judge’s decision, that of the Tribunal and my decision are wrong. However there is simply no arguable appeal point.

28    Accordingly, the application for leave to appeal must be dismissed.

Associate:

Dated:    16 June 2017