SZERW v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The appellant is a Lebanese Sunni Muslim from Tripoli. He has twice entered Australia. His first visit was in 1995. He entered Australia again in December 1996 pursuant to a three month visitor's visa. He travelled here on a Lebanese passport. On 25 February 1997 the appellant applied for a protection visa (class XA) pursuant to Australia's obligations under the Convention Relating to the Status of Refugees and its Protocol. The appellant's application was refused by the Minister's delegate and by the Refugee Review Tribunal. The decision of the Refugee Review Tribunal was given on 22 June 1998. There the matter stood until 12 November 2004, more than six years later, when the appellant made application to the Federal Magistrates Court for review of the decision of the Refugee Review Tribunal. The appellant was unsuccessful in that application and now appeals to this court. 2 Although the decision of the Refugee Review Tribunal was made before the privative clause provisions were inserted in the Migration Act 1958 (Cth), those provisions apply to this matter because they were in force at the time of the application. Accordingly, to succeed, the appellant must show not only that there was error of law on the part of the Refugee Review Tribunal but that such error amounted to jurisdictional error. 3 The appellant makes no complaints of conduct prior to his first visit to Australia. However, he says that on his return from that trip he was detained in Lebanon on two occasions. These detentions form the basis of his claim. Effectively he says that he fears persecution on his return to Lebanon by reason of his political opinion. 4 On the first occasion of which he complains he was detained on suspicion that he was an escapee from Syria. When he satisfied the authorities that this was incorrect he was released. 5 The second incident involves two aspects. It seems he was arrested because a friend he had known for a long time made contact with him. This friend had been involved with a group called the Lebanese Forces. The friend sought his assistance. This was declined, but shortly thereafter the appellant was arrested by the Lebanese army. He was held for some two weeks. Then he was taken by a Syrian security force which held him for more than three months. During this period he says he was treated badly. When he was released he made plans to come to Australia. 6 The application to the Federal Magistrates Court was heard by Smith FM. The appellant was represented by counsel. Two grounds were dealt with. The first ground was that there was a breach of the rules of procedural fairness. The second was that the Refugee Review Tribunal had identified wrong issues and asked itself wrong questions. The relevant particulars of the first ground were that the Tribunal failed to put to the appellant the Tribunal's view and the information on which it was based, that the appellant's friend was wanted by the authorities because of his involvement in criminal offences. The Tribunal said this: 'The Tribunal finds that the applicant was detained because of his potential importance in a criminal investigation of his former acquaintance, not because of his political opinion or a political opinion imputed to him or any other Convention reason. The Tribunal does not accept that the applicant, a Sunni Muslim, faced an extensive detention as he was imputed to be sympathetic to the Lebanese Forces, the party of the Maronite Christians during the civil war (and an illegal organisation at the time of his detention). The applicant was not questioned about any involvement with the Lebanese Forces, and the issues about which he was questioned relate to his knowledge of his friend's movements and activities. In any event, there is no evidence of systematic persecution of LF members- the independent evidence suggests that "the current situation is that thousands of former LF members and their families ... carry on their lives unhindered by the military/security forces", and that arrests of LF members seem to be related only to serious offences:' [Two cables of the Department of Foreign Affairs are then referred to]. 'The Tribunal finds that the applicant's former school friend was wanted in relation to serious criminal offences, and this is the reason why the applicant was detained and questioned.' Smith FM found as follows in paragraphs [29] and [30] of his decision: '29. My difficulty with the applicant's argument, is that I am not persuaded that he was denied this opportunity. The applicant's own claims implicitly assumed a background knowledge by the Tribunal of what were LF "operations" which would have led to the surveillance and pursuit of his friend, or implicitly invited it to acquire that knowledge for itself. I am therefore not persuaded that the information in the DFAT cables had any element of "surprise" which would have required their contents to be put to the applicant.' '30. Moreover, I am not persuaded that the background to LF operations was not sufficiently canvassed with the applicant in the course of the hearing. In the absence of a transcript, I am not prepared to draw this inference merely from the absence in the Tribunal's reasons of reference to these cables being "put" to the applicant.' 7 The second ground considered by Smith FM was that the following wrong issues or wrong questions were addressed by the Refugee Review Tribunal: 'a) The Tribunal failed to consider "the 'political' nature of the imputed 'criminal' activity". b) The Tribunal failed to consider "whether the Syrian authorities had a legitimate object in investigating criminal activities in Lebanon and, if not, whether such investigations were motivated by Convention based reasons".' Smith FM dealt with this as follows: '20. However, I am not persuaded by these arguments that there was any issue which the Tribunal was required to address and omitted to do so. As I have indicated above, the Tribunal found that the Syrian authorities were acting in concert with the Lebanese authorities in conducting a criminal investigation into "serious criminal offences" and that there was no Convention reason for their treatment of the applicant. There was country information which allowed the Tribunal to reach this view, and counsel for the applicant did not contend otherwise. This included information that the Syrian presence in Lebanon and its support of Lebanese security authorities was "legitimate" even if unpopular. It included information that recent LF "operations" included terrorist bombings and assassinations, calling for drastic security measures. I consider that its findings have a sufficient factual basis for its characterisation of the applicant's detention as lacking any Convention reason. I am not persuaded that the Tribunal's failure to provide further discussion of the "legitimacy" of the Syrian involvement in the criminal investigations revealed a failure on its part amounting to, or evidencing, jurisdictional error.' 8 There are two substantive grounds of appeal relating to these matters before me. They are as follows: