SZBZJ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT HILL J 1 The appellant appeals against a decision of a Federal Magistrate dismissing his application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). 2 The appellant is a citizen of Lebanon. Shortly after arriving in Australia, he applied for a Protection (Class XA) Visa. His application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). He then applied to the Tribunal to review the delegate's decision. 3 It is a criteria of the grant of a protection visa that the applicant for that visa be a person of whom the delegate, or in the event of a review by the Tribunal, the Tribunal, is satisfied that he is a person to whom Australia has protection obligations. Generally speaking, it may be said that Australia has protection obligations to a person who is a "refugee" within the meaning of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (herein the "Convention"). That Article defines a "refugee" to be a person who: "…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 4 The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations and accordingly affirmed the decision of the delegate not to grant to him a protection visa. The appellant then sought judicial review of the Tribunal's decision. 5 The appellant's case in the Tribunal can be briefly stated as follows: in October 2002, the appellant had subcontracted with a company known as "Tajj" to execute the water supply to the villages in the Bekaa from Lake Yammouneh in Lebanon. The water pipes passed through an area known as Dar-El-Wasaa, controlled by the Jaafar family. While carrying out the work he met Sheik Mahmoud Dehayni, a member of the Hezbollah, which organisation was in power in the area. He reached agreement with Sheik Dehayni that the latter would ensure the appellant's safety and that of his crew, as well as the safety of the job in the area, in return for donations to the Hezbollah. He needed, as well, the permission of the Jaafar family to carry out the work. For this, he also sought Sheik Dehayni's help. An agreement was reached. Apparently, Sheik Dehayni required in return for the assistance he was to give that the appellant obtain information about drug plantations owned by the Jaafar family. 6 It took some months for the work to be completed and in that time the appellant gave the requested information about the drug plantations. 7 After some three months, it seems that there was a big drug bust in the area, which resulted in the destruction of plantations belonging to the Jaafar family and the confiscation of drugs belonging to that family. In this bust, Mr Jaafar and some of his gang were captured. The appellant understood that the Lebanese army was involved in this operation. The Sheik told him that the Hezbollah was not. 8 A Mr Houssein Hammieh, who also belonged to the Jaafar gang, investigated what had happened. Mr Hammieh's brother was, so the appellant said, also a member of the Hezbollah. The appellant claimed to fear that members of the Jaafar family/gang would harm him. They were seeking, so he claimed, revenge for the loss of their drug plantation and the produce thereof. He said that the authorities could not protect him because Lebanon was a small country and everyone had connections with the police, army officials, secret service and political parties. 9 Prior to the hearing, the appellant elaborated on the claims he had made originally. In particular, he is reported to have made the following complaint: "The applicant claims that the Lebanese government is pro-Syrian and that if you are not pro-Syrian then you will be denied any kind of help. He claims that he is not pro-Syrian. He claims that if a person makes any protest against Syria then that person could be killed. The applicant claims that he left Lebanon because of his fear." 10 The Tribunal found that the appellant was "generally credible". However, it considered that, following the adverse decision by the delegate of the respondent Minister, he had exaggerated the involvement of the Hezbollah in order to enhance his claims. The original claims had stated that his persecutors were members of the Jaafar clan, not the Hezbollah. This was supported by the statements of his family given in January 2002, which predated the delegate's decision made in October 2002. After the delegate's decision, the appellant claimed that the Hezbollah was also involved in persecuting him. The Tribunal preferred the original version of his claims. It accepted that if the appellant returned to Lebanon he could be seriously harmed by either the member of the Hezbollah, Hussein Hammieh or members of the Jaafar family/gang. The Tribunal was of the view that the harm faced by the appellant was sufficiently serious to constitute persecution. The Tribunal, however, was of the view that such serious harm as the appellant faced was not for one of the reasons enumerated in the Convention. It noted that s 91R(1)(a) of the Migration Act 1958 (Cth) ("the Act"), stipulated that a Convention reason or reasons must constitute at least the essential and significant reason for the persecution. The Tribunal continued: "Having considered the facts of this case the Tribunal is of the view that the reason the applicant could be harmed by either Hossein Hammieh or members of the Jaafar family is revenge for the belief that the applicant exposed the criminal drug activities to the authorities leading to the arrest and death of some members of the Jaafar family/gang and the loss of drugs. Fear of revenge does not come within the scope of the Refugees Convention unless it can be shown that the revenge or retaliation is linked with race, religion or political opinion or other Convention reason. In the circumstance of this case, the persecutors are not concerned with the applicant's race, religion, political opinion or any other personal attribute other than the fact that they believe that he is responsible for exposing their criminal activities leading to the death of some of their people. It is clear form the applicant's own evidence that they are concerned with exacting some form of retribution form him for this reason and not for any other reason. Even though one of the persecutors is a member of the Hezbollah which is a political and fundamentalist religious party and is pro-Syrian and the applicant claims that he is not pro-Syrian, the Tribunal is of the view that the essential and significant reason for the persecution is revenge for the belief that the applicant exposed their criminal activities. There is no evidence before the Tribunal that the applicant's political views or opinions are of any interest to his persecutors. It is the Tribunal's view that the applicant's fear has no connection with any one of the Convention reasons." 11 In the Federal Magistrate's Court it was submitted that the reasons of the Tribunal demonstrated jurisdictional error such that the decision was not a decision at all and in consequence not a privative clause decision such as would not be reviewable by the Court. It was said that the Tribunal's decision was no decision at all for two reasons. The first was that the Tribunal had failed to exercise its jurisdiction to consider whether the appellant's fear of persecution was on the basis of political opinion. In connection with that ground, it was said that the Tribunal had erred in construing the meaning of the term "political opinion" in Article 1A(2) of the Convention. The second basis of complaint was that the Tribunal had failed to consider and address the appellant's claim that he would not be afforded State protection by the Lebanese authorities because he was not pro-Syrian. 12 The learned Federal Magistrate was of the view that the Tribunal had addressed the question of political opinion adequately, in that the appellant's fear of harm did not arise for a Convention reason. The Tribunal had found that the persecution feared by the appellant arose as a result of revenge on the part of the Jaafar family for the exposing of their criminal drug activities and had no connection with any matter referred to under Article 1A(2) of the Convention. Although the Tribunal noted the second matter, namely that State protection was not available to the appellant because he was not pro-Syrian, the learned Federal Magistrate did not address it. It would appear that the argument was overlooked by his Honour. 13 I shall deal with each of the two matters in turn.