SZDFF v Minister for Immigration & Multicultural & Indigenous Affairs

The Proceedings Below 8 In the Federal Magistrates Court, the appellant pressed arguments in respect of the Tribunal's responses to her first and second claims. 9 As to the first claim (which his Honour referred to as 'theHezbollah claim'), the appellant argued that the Tribunal's reasoning contained two errors: (i) misunderstanding her claims, in asserting that she 'did not claim to have been suspected of passing sensitive information to the SLA';and (ii) making a finding that was not open to it, in not being satisfied that she would be perceived as a collaborator: See [27] and [31] of the Federal Magistrates reasons: SZDFF & Ors v Minister for Immigration & Anor [2006] FMCA 433. 10 As to the first point, his Honour analysed the claims the appellant had advanced, and was not persuaded that the Tribunal's understanding of them was not open to it. While the appellant had claimed to be regarded as a collaborator and a traitor andaccused of 'carrying information' to her employer, the effect of the Tribunal's summary (which was open to it) was that she was not accused of being a spy (see [28]). 11 In any event, his Honour went on, if the Tribunal was in error in this respect, there were two further reasons why that error did not go to jurisdiction. One was that any error was an error of fact which did not result in a failure to address a claim (see [29]). The other was that the Tribunal had provided at least one 'alternative and independent reason' for its conclusion on the Hezbollah claim - i.e., that former SLA members and those accused of collaboration were no longer at risk of retribution. 12 The second error upon which the appellant relied, in his Honour's view, merely constituted a challenge to an assessment of fact which was reasonably open to the Tribunal on the material before it (see [32]). 13 His Honour then turned to consider the appellant's second claim, which his Honour referred toby as 'the Mrad claim'. Three criticisms were pressed in argument. 14 The appellant's first contention in relation to the Mrad claim was that the Tribunal's conclusion that she had given 'no acceptable reason as to why she believe[d] her son was killed by members of Abdel Rahim Mrad's party' was wrong. The appellant said that she had, in fact, provided reasons. His Honour regarded this submission as misconceived, in that the Tribunal was simply setting down its conclusion that no reasons were advanced which it found 'acceptable' (see [37] - [38]). 15 The appellant's second contention was that the Tribunal had misapplied s 91R(l)(a) of the Migration Act 1958 (Cth) ('the Act') in making its assessment that the harm feared from Mr Mrad lacked a Convention nexus. His Honour did not perceive any such error, and regarded it as open to the Tribunal to find that the appellant's fears concerned a non-Convention-related motivation (see [39] - [41]). 16 In any event, his Honour accepted the Minister's submission that an error in the Tribunal's finding as to Convention nexus would not go to its jurisdiction, unless the other reasons for rejecting this claim (i.e., the absence of persuasive evidence that the murder was linked to Mr Mrad, or that he had no ongoing interest in the appellant's family) were also affected by some relevant error (see [42). 17 The third contention which the appellant advanced in the Court below was that it was not open to the Tribunal to assess the appellant's chances of encountering harm from Mr Mrad as 'remote'. In his Honour's view, this argument 'did not go beyond criticisms of factual assessments which were essentially part of the duty of the Tribunal to make' and did not reveal jurisdictional error (see [45]).

The Appeal 18 The Notice of Appeal alleges that his Honour fell into error in his responses to: (a) the argument concerning the Tribunal's conclusion that 'no acceptable reason' had been given (cf. [14] supra; Notice of Appeal - Ground A); and (b) the argument concerning the Tribunal's finding that any harm feared at the hands of Mr Mrad would not be inflicted for a Convention reason (cf. [15] - [16] supra; Notice of Appeal - Ground B). 19 As to the issue raised in Ground A, it seems clear to me that in the relevant passage the Tribunal intended to convey its lack of satisfaction as to the cogency of the appellant's explanations for her belief that Mr Mrad was linked to her son's murder. It went on to set out brief reasons for that lack of satisfaction which (as his Honour held at [38]) were rational. I agree. 20 As to the issue raised in Ground B, the proposition advanced by the appellant was that Mr Mrad wanted to harm her and her sons to prevent her sons from exacting revenge for their brother's murder. On her evidence, therefore, the motivation for the harm which she feared was nothing to do with any political opinion held by or imputed to her (or any other Convention reason); rather, it was a pragmatic desire by Mr Mrad to avoid possible harm to himself. It was clearly open to the Tribunal to find that she did not meet the test in s 91R(1). 21 The two aspects of the Tribunal's reasoning on the Mrad claim which are attacked by grounds A and B are, as his Honour pointed out (at [42]), independent of each other. The appellant would need to succeed on both grounds in order to demonstrate jurisdictional error by the Tribunal in dealing with the Mrad claim.

Additional ground 22 As to the issue referred to in the appellant's written submissions as 'Ground 1', the argument appears to be essentially the same as that advanced on the Hezbollah claim before his Honour below. 23 The immediate difficulty faced by that argument is that it does not reach what his Honour identified (correctly) as an independent basis for the conclusion that the appellant did not have a well-founded fear of harm at the hands of Hezbollah: Even if she was regarded as an SLA member or sympathiser, or collaborator, country information indicated that she would not be a target for retribution on that account. Even if it were soundly based, therefore, the argument would not establish jurisdictional error in the Tribunal's response to the Hezbollah claim. 24 Further, identifying the particular part of the reasoning which the appellant's argument does attack (i.e., the finding that she would not be regarded as a collaborator) serves to confirm that, if the Tribunal misunderstood anything, it was the evidence she advanced to support her claim (i.e., that she had been detained and accused of particular things in the past) and not the claim itself (i.e., that she would be harmed because Hezbollah regarded her as a collaborator). If there was any error, therefore, it was (as his Honour held) simply one of fact, and not a failure by the Tribunal to perform its statutory task of review. 25 It was submitted on behalf of the appellants that s 414 (read with s 415) of the Act lays down a condition on the Tribunal that the 'Tribunal must review the decision'. The appellant submitted that this is a mandatory obligation imposed on the Tribunal by the Act and therefore it has to be cautious and these provisions cannot either arbitrarily or callously be overlooked when considering an applicant's claims. Counsel for the appellant referred me to what was said by a Full Court of this Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263. It was submitted that there was a constructive failure on the part of the Tribunal to review the decision under s 414 of the Act, in an articulate and constructive manner required in s 415 of that Act. Therefore the Tribunal had committed jurisdictional error. 26 I cannot agree. There is no constructive failure on the part of the Tribunal to review the decision under s 414 of the Act, in an articulate and constructive manner required in s 415 of the Act. All relevant claims were addressed and dealt with and for the reasons explained by his Honour, the Tribunal's reasons do not disclose any misunderstanding of the appellant's claims.

27 For the foregoing reasons, the appeal must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 1 September 2006 Solicitor for the Appellants: Mr Chandra Jayawardena

Solicitor for the First Respondent: Blake Dawson Waldron