SZFLL v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of Driver FM delivered in the Federal Magistrates Court of Australia on 24 August 2006. No Notice of Appeal was filed and served within 21 days after the date when the judgment appealed from was pronounced in accordance with Order 52 r15(1)(a)(i) of the Federal Court Rules ('the Rules'). 2 However on 22 September 2006 the appellant, who has been identified for the purposes of these proceedings as SZFLL, filed an Affidavit sworn by him on 16 September 2006 which was, in effect, both an Application for an extension of time within which to file and serve a notice of appeal from the judgment of the learned Federal Magistrate and also a justification for such an extension of time. It may be observed that the Affidavit was sworn some two days after the time for filing a Notice of Appeal expired and it was filed six days after that. 3 Under Order 52 r15(2) of the Rules a Judge may 'for special reasons' at any time give leave to file and serve a Notice of Appeal. 4 In Jess v Scott (1986) 12 FCR 187 at 195 a Full Court of this Court said that the expression 'special reasons' was 'intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case'. 5 The Full Court continued by describing the expression 'special reasons' as conferring 'a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served'. 6 The Court drew a distinction between a case where there may have been an oversight of a day and one in which a neglect persisted during a prolonged period. Where a party was a few days late the Court said 'something much less significant might justify leave'. 7 In this case an interesting argument in relation to the reach of s 424A of the Migration Act 1958 (Cth) ('the Act') has been advanced sufficient to justify departure from the general rule that time limits imposed under the Rules must be complied with. 8 When cross-examined in relation to his awareness of a 21 day time limit, the appellant conceded that he had been informed by the learned Federal Magistrate that such a time limit applied. However, the appellant, who was at the time attending to his affairs with the assistance of a migration agent, said that he did not receive the judgment until three days after the Federal Magistrate's reasons were certified, i.e. not until 7 September 2006 or thereabouts. 9 In the circumstances it is perhaps surprising that the respondent Minister opposed an extension of time within which an appeal may be brought. Be that as it may, I have concluded that leave should be granted to the appellant to file and serve a Notice of Appeal, albeit strictly out of time. 10 On the hearing of the Application for such leave, which was heard in conjunction with the appeal on the premise that leave may be granted, the appellant, then the applicant, was represented by Dr Azzi of counsel. The Minister was represented by Mr Leerdam, a solicitor. 11 Dr Azzi read not only the Affidavit of the appellant sworn 16 September 2006 but also he relied upon a document entitled 'Affidavit' which was signed by the appellant and dated 9 February 2007. That 'Affidavit' was filed in the Court by the appellant on 12 February 2007. To it a 'Draft Notice of Appeal' was attached. On the second day of the hearing of the matter, namely 22 February 2007, leave was granted to the applicant to file in Court a Notice of Appeal signed by him and dated 9 February 2007. Such Notice of Appeal took the form of the draft which had been attached to the 'Affidavit' of 9 February 2007. It is that Notice of Appeal which is the subject of consideration in the balance of these reasons. 12 The Notice of Appeal contained two grounds each of which was argued on the hearing of the appeal. For present purposes it is unnecessary to identify the particulars which were provided under those two grounds. The grounds themselves were expressed as follows: '1. His Honour erred in dismissing the application for review of the Tribunal's decision in circumstances where his Honour held the Tribunal did not overlook an "element or integer of [the applicant's] claim" so that it "was not required to pursue the subtle questions of [Syrian] influence on the relevant Lebanese authorities" when considering the applicant's claim to fear the Lebanese authorities "[b]ecause the applicant was not believed". 2. His Honour further erred in dismissing the application for review of the Tribunal's decision in circumstances where the Tribunal failed to afford the applicant procedural fairness in accordance with section 424A of the Migration Act 1958 (the "Act")' 13 The appellant was born in Lebanon on 23 February 1978. He is a citizen of Lebanon who held a Lebanese passport issued to him on 21 December 2001. On 11 August 2002 he arrived in Australia, entering this country under a Visitor's Visa issued to him in Beirut on 22 July 2002. 14 On 9 September 2002 the appellant applied for a Protection (Class XA) Visa. 15 That application was refused by a delegate of the Minister on 19 December 2002. 16 On 5 February 2003 the appellant filed an Application for Review of the Minister's delegate's decision with the Refugee Review Tribunal. It was part of the appellant's case that 'The Lebanese authorities will not protect anyhow. The record of the Lebanese authorities on offering protection to L.F. [Lebanese Forces] members and supporters is not very encouraging especially in light of the human rights abuses perpetrated against L.F. members and supporters in recent years. The Lebanese authorities would still persecute me for my ongoing L.F. students activities'. 17 The appellant gave oral evidence to the Tribunal on 27 August 2003. Thereafter, the Tribunal decided the Application for Review adversely to the appellant, affirming the decision of the Minister's delegate not to grant the appellant a protection visa on 10 October 2003. That decision was handed down on 4 November 2003. 18 An Application for constitutional writ relief would appear to have been filed in the Federal Magistrates Court of Australia on 11 January 2005 which resulted in the decision of Driver FM of 24 August 2006 to which reference has previously been made. 19 On 24 January 2005 a Registrar in the Federal Magistrates Court ordered the appellant to file and serve an Amended Application with particulars. Apparently this order was not complied with, with the result that the Application which came before the Federal Magistrates Court contained a single ground of review which was referred to in the reasons for judgment of Driver FM as 'that the RRT erred in a manner amounting to jurisdictional error in that it failed to consider every integer of the applicant's claim of a well-founded fear of persecution'. The particulars given in respect of that ground were expressed by the learned Federal Magistrate ([2006] FMCA 1242 at [3]) as: 'that the RRT failed to consider the claim of the applicant to a well-founded fear of persecution, first from the Syrian intelligence forces operating within Lebanon and, secondly, based on the inability of the Lebanese government to protect the applicant from serious harm at the hands of or at the instigation of either Muslim paramilitary groups or Muslim officials presently part of the Lebanese government.' 20 At [11] the learned Federal Magistrate said: '… the applicant's problem was that he was in essential respects not believed. Because the applicant was not believed, the presiding member was not required to pursue the subtle questions of influence on the relevant Lebanese authorities that might otherwise have called for consideration. The applicant's claims were considered in the terms that they were put and, in substance, rejected. The RRT did not err by overlooking any element or integer of the applicant's claims.' 21 The Tribunal's reasons occupied some 27 pages of typed script. Under the heading 'claims and evidence' the Tribunal recorded: 'The applicant claims to be a student and a member of the Lebanese Forces Students (LF Students). He claims that as a result of his activities he was arrested on four separate occasions - in August 1998, September 1998, January 2000 and in 2002 after the death of Ramzi Irani- by the military intelligence. He claims that on each occasion he was forced to sign statements to the effect that he would not participate in political activities. He claims that ten days after his arrival in Australia he was told by his parents that the military intelligence had been asking about him. He claims that he is still an active member of the LF Students and that he played an important role in LF Students' activities. He fears being apprehended by the Lebanese authorities and being detained upon his return.' 22 Under the heading 'FINDINGS AND REASONS' the Tribunal ultimately concluded under the subheading 'Fear of future harm': 'The Tribunal has considered if the applicant will be persecuted for the reason of his membership of LF if he returned to Lebanon now or in the reasonably foreseeable future. The independent evidence referred to above suggests that only Lebanese who take political action that "might have repercussions on the ground", for example, action that might lead to a security threat, face a real chance of serious harassment. The authorities are only interested in former LF members who are "wanted in connection with serious crimes, such as murders or bombings" or those involved in overt political activities. The authorities do not pursue members of LF rank and file (DFAT, Country Information Report, No. 1028/96, Lebanon: Treatment of Former Lebanese Forces, 9 December 1996, CX21238). The Tribunal has found that the applicant was not a member of LF Students. He was an ordinary member of LF who had held no positions within the organisation. The applicant did not claim, and there was no evidence before the Tribunal to indicate, that he was involved in a serious crime. He described his activities as distributing flyers, attending demonstrations and educating the young. The Tribunal has rejected the applicant's claims that he was arrested and detained in the course of attending demonstrations in 1998 and 2000. The applicant did not claim to have been prevented from attending memorial masses for the martyrs held annually in the month of May or any the other demonstrations or to have been harmed in the course of, or as result of, participating in these activities. The Tribunal is satisfied that the applicant's low-level activities did not give him a profile that was of any real interest to the Lebanese authorities. The above finding is reinforced by the applicant's ability to obtain a passport and depart Lebanon legally without experiencing any difficulties. The independent information cited above suggests that the Lebanese authorities would certainly have prevented the issue of a passport to any individual wanted whose crime was linked to his/her membership of LF (DFAT, Country Information Report, No. 1028/96, Lebanon: Treatment of Former Lebanese Forces, 9 December 1996, CX21238). The applicant had no difficulties in obtaining his passport in December 2001. Overall, the Tribunal, based on the totality of the evidence before it, including the independent evidence cited above, is not satisfied that the applicant was involved in any political activity, held any positions or had a profile that brought him to the adverse attention of the authorities. The Tribunal is satisfied that if the applicant returned to Lebanon he would be able to express his views without experiencing unreasonable restrictions on his right of political expression. It is clear from the independent evidence that there is not a complete denial of civil and political rights in Lebanon. A level of public expression of political views is tolerated and simply expressing support for opposition parties without something more is not a cause of harassment. The Tribunal is satisfied that if the applicant returned to Lebanon and continued to engage in political activity and or criticism at the same level as he has in the past there is no real chance that he would face persecution as a result. The Tribunal does not consider that the applicant's activities in Australia, namely visiting the LF office or attending meetings and receptions, raise his political profile beyond what it was prior to his departure from the country. The Tribunal, therefore, finds that if the applicant resumes his activities at the same level as he has in the past the chance that he will be persecuted by the authorities in the reasonably foreseeable future is remote.' 23 In dealing with 'The Hearing' in that section of its decision headed 'CLAIMS AND EVIDENCE' the Tribunal asked the appellant about the incidents said to have taken place in August 1998, September 1998, January 2000 and 2002. It also asked him about his education, including his assertion that he had been a student at the Holy Spirit University undertaking a course in 'marketing' in 1998, 1999 and 2000 before he ceased studying in what was said to be a five year course after three years. Given the appellant's apparent lack of knowledge of the courses taught in the marketing degree, the Tribunal Member apparently indicated to the appellant that he had difficulty in accepting that he was a student at the Holy Spirit University in the years mentioned and asked him to provide evidence to support his claim in that regard. 24 In addition, the Tribunal informed the appellant that the Lebanese Forces website contained no record of any major demonstrations in August and September 1998. In addition it suggested that there had been no mention of a demonstration in January 2000 although the appellant had suggested that the January 2000 demonstration had been attended by 4,000 people. The Tribunal Member recorded that the appellant had no comments when these matters were drawn to his attention. 25 It would appear that in deciding the Application before it the Tribunal had regard to a search undertaken by it on the website of the Holy Spirit University (which revealed a number of course names which had not been mentioned by the appellant in his evidence when he was challenged as to his attendance at the University). The Tribunal was of the view that 'the applicant has fabricated his evidence regarding his educational history'. It later continued: 'The Tribunal is of the view that the applicant has fabricated his educational history in order to enhance his profile and the extent of his activities for or on behalf of the organisation. The fact that he demonstrated a palpable lack of knowledge about the structure of LF Students at his university reinforces the aforesaid view.' 26 The Tribunal proceeded to reject the appellant's claim that he was arrested and detained in August and September of 1998. In rejecting the appellant's claims in this regard the Tribunal had regard to the absence of any mention of the alleged incidents on the Lebanese Forces website and also in other internet records which might be expected to contain such information. 27 Similarly, the Tribunal was not prepared to accept that the appellant was arrested and detained in January 2000 in the course of attending a demonstration. Once again, the Tribunal relied upon the absence of any mention of the demonstration said to have taken place on a number of websites which one might expect would include mention of the demonstration, had it occurred. 28 In relation to the 2002 matter the Tribunal had 'serious reservations regarding this claim' for reasons which it proceeded to detail. These included: '… the applicant did not impress the Tribunal as a credible and truthful witness. In reaching this view the Tribunal has had regard to the applicant's willingness to fabricate his evidence regarding his evidence (sic) regarding his educational history and his membership of LF students; and the fact that key portions of his evidence are completely unsupported by the country information before the Tribunal. In the Tribunal's view the totality of the applicant's oral evidence shows a propensity to exaggerate and tailor his evidence in a manner which achieves his own purpose.' 29 The Tribunal did not accept that the appellant had been arrested and detained in 2002 by the Lebanese authorities. 30 Ultimately, the Tribunal was not satisfied that the appellant had a well-founded fear of Convention-based persecution. 31 It may be observed that information taken into account as the reason or part of the reason for the Tribunal affirming the decision of the Minister's delegate included the information obtained by the Tribunal from the Holy Spirit University's website, in respect of the component parts of the marketing degree course, and the absence of Country Information supportive of the appellant's allegations that demonstrations took place in August 1998, September 1998 and January 2000, it being assumed by the Tribunal that, had the incidents in question occurred, they would have been mentioned in the relevant Country Information.