SZQRU v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The applicant is a Lebanese national who claims to be an Alawi Muslim and to fear persecution there on political and religious grounds. In large part the basis for these fears is that two years before he left for Australia, he was allegedly threatened by the leadership of the Arab Democratic Party, which he had reluctantly joined, during or at the time of local fighting. The applicant further claims that, because he had consistently refused to bear arms or fight for the party, he was not respected and people in his area abused him as a coward. He expressed the fear that, having left the area now without the party's permission, he will be viewed as a traitor and a spy for the rival Sunni parties and killed. He also claims to fear being physically harmed or killed by Salafists or Sunni Muslim groups because of his religion. 2 After unsuccessfully applying to the Minister for Immigration and Citizenship for a protection visa, he sought a review by the Refugee Review Tribunal, but that application was unsuccessful, too. He then applied to the Federal Magistrates Court to quash the tribunal's decision and require it to reconsider his case but in an ex tempore decision Raphael FM dismissed the application. The applicant wants to appeal that judgment but he failed to file a notice of appeal within the prescribed time and now seeks an extension of time within which to do so. 3 The tribunal rejected the review application because of inconsistencies in, and the quality of, the material the applicant presented and the absence of independent material to support it. The tribunal considered that statutory declarations from other Lebanese Alawites living in Australia upon which the applicant relied, which stated that what he said about the ADP was true, but which were lacking in important particulars, were on that account entitled to little weight. In one important respect they were also inconsistent with oral evidence the applicant had given at the hearing. The tribunal accepted that there have been periods of conflict between Alawi and Sunni groups in Tripoli, most recently in 2008, and that political and sectarian tensions are high in the area where the applicant was living. It also accepted that there were sporadic outbreaks of fighting in which people were killed, but that since 2008 that occurred in the context of demonstrations. As the applicant said he did not wish to be politically involved, the tribunal did not consider he was at risk. It also found that his assertion that the ADP had killed people was based on nothing more than rumours. Having regard to the wealth of information about the current political situation in Lebanon, the tribunal said that if targeted killings of people like the applicant were taking place "with any regularity or frequency" for the reasons that he claimed, there would be reports of this. In any case, it said that the evidence indicated that the state authorities have taken appropriate measures to stop the outbreak of violence. The tribunal concluded that, as the applicant had managed to remain in his neighbourhood safely for two years after the 2008 fighting without suffering serious harm or mistreatment that could be considered persecution, he would not suffer such harm or mistreatment in the foreseeable future. As applicant's evidence was that the party was aware he was coming to Australia, the tribunal did not accept that he would be suspected of leaving in order to spy for the Sunnis. 4 The judgment of the federal magistrate was pronounced and the orders made on 30 May 2012. The applicant had 21 days to appeal. See Federal Court Rules 2011 (Cth), r 36.03. The appeal should therefore have been filed by 20 June 2012. It appears that on 28 June 2012 the applicant tried to file a notice of appeal but the document was rejected. Instead, he filed an application for an extension of time and an affidavit in support. The grounds set out in what is now styled the draft notice of appeal are as follows (without alteration): 1. The Refugee Review Tribunal (the Tribunal) misunderstood my claim. 2. His Honour Learned Magistrate Raphael also failed to accept my fear of persecution and the evidence which was before the Tribunal that I fear persecution and that even though I was not physically harmed while in Lebanon my situation has changed should I return. The Tribunal made error of law in coming to a conclusion which was not based on available evidence. 5 He asks for orders that both the tribunal decision and the decision of the federal magistrate be quashed. 6 In his affidavit the applicant stated in English (again without alteration): I ask the Hon Court to accept my draft notice of appeal. I believe I have strong case and arguable case. I was not aware of the judgement being made on 30.5.012, the date of the judgement is 7/6/012. I will provide transcript which was not before FMC. I ask the Hon Court to accept my draft notice of appeal. 7 I note that the transcript of the tribunal hearing was not provided. 8 No submissions were filed in support of the application. At the hearing I invited the applicant to tell me why his application should be granted and to explain what it was that the federal magistrate had got wrong. He told me, through an Arabic interpreter, that the tribunal did not apparently understand his case, relied on inaccurate internet information and thought he was lying. He said that when he attended at the tribunal, he had been involved in an accident and was taking painkillers that affected the way he presented his case. He said he wanted an opportunity to explain his case to the tribunal again, more clearly than he had done previously. He said he now had witnesses who had recently arrived from Lebanon and documentary information he wanted to give the tribunal. He said that the tribunal told him he could adjourn the case and he should have done so. When pressed to address the proposed grounds of appeal, he did not do so. He merely lamented that he did not have a solicitor. 9 The explanation for the delay is unsatisfactory. The applicant was present (with his interpreter) when the judgment was pronounced. I cannot therefore accept the proposition that he was not aware of it in sufficient time to file his appeal. 10 Nevertheless the delay in this case is short. The Minister accepts he is not prejudiced by it. In the circumstances I would not allow the mere fact of the delay to stand in the applicant's way. As the Full Court observed in WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7], the Court is given the discretion to extend time in order to be able to do justice between the parties. Consequently, where the delay is short and no injustice would be occasioned to the respondent, justice will usually be done by exercising the discretion in the applicant's favour. But where the prospective appeal enjoys insufficient prospects of success, it would not be just to do so. This is such a case. To succeed on an appeal the applicant would have to show that the federal magistrate fell into error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. For the following reasons, however, he is evidently unable to do so. 11 First, the contention that the tribunal misunderstood the applicant's claim was propounded in the court below. It was the first ground of the application. The federal magistrate noted that it was not particularised, but from what the applicant told him he inferred it was a complaint that the tribunal did not believe him on his oath. If so, that is a matter insusceptible of a remedy in the courts. The federal magistrate only had power to intervene if the tribunal decision was affected by jurisdictional error (Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). 12 According to the federal magistrate, however, the tribunal did not disbelieve the applicant; it merely decided that the threats to him were not as serious as he thought. The tribunal certainly did not find that the applicant lied to it. But it is plain that it regarded independent country information to be more reliable than the applicant's account and, in some instances, in the absence of such information or where the applicant's evidence was in conflict with it, it preferred the independent information. 13 His Honour noted the tribunal's finding that the applicant had lived peacefully in Tripoli for two years before coming to Australia and its conclusion that there was no reason to believe the situation would change if he were to return. This conclusion was fatal to the applicant's claim, as a criterion for the grant of a protection visa is that Australia owes protection obligations to him under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol ("Refugee Convention"): Migration Act, s 36(1). That meant that the applicant had to satisfy the Minister that he has a well-founded fear of being persecuted for one or more Convention reasons: Refugee Convention, Art 1A(2). Section 91R of the Migration Act placed additional obstacles in the applicant's path. In substance, he is ineligible for a protection visa unless the reason is the essential and significant reason for his fear, the persecution involves serious harm to his person as well as systematic and discriminatory conduct. Even if the tribunal had found his fears to be well-founded, it is apparent that the dearth of evidence to indicate that targeted killings of people like him were occurring regularly or frequently would also have stood in his way. 14 The federal magistrate then observed (correctly): There is no jurisdictional error in coming to a conclusion of that type based, as it is, upon available evidence. 15 Secondly, the federal magistrate did not fail to accept anything the applicant told the tribunal concerning his fear of persecution. Indeed, it was, as I have already indicated, no part of his role to decide whether the applicant was telling the truth or whether his fears were well-founded. That was a task for the tribunal and the tribunal alone. A wrong finding of fact is not a jurisdictional error. The courts have no jurisdiction to correct administrative injustice of this nature: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291. The federal magistrate found that the tribunal's findings were open on the evidence and held, correctly, that any decision it made on the facts of the case that was based on those facts could not be impugned in his court because of a difference of opinion about the validity of the information. It appears from the federal magistrate's reasons for judgment that the applicant urged upon him that he was telling the truth but his Honour explained, once again correctly, that they were matters going to the merits of the case and not to the legality of the decision-making process. 16 The third matter the applicant raised in his draft notice of appeal could involve jurisdictional error. Not all errors of law by administrative tribunals are of this kind. That will depend on whether the exercise or purported exercise of the tribunal's powers is affected by the error. See Craig v South Australia (1995) 184 CLR 163 at 179. Yet, the applicant did not identify the legal error, let alone explain how it affected the exercise or purported exercise of the tribunal's powers. I can find nothing in the federal magistrate's reasons to suggest that the tribunal made such an error. 17 Nothing the applicant put on this application takes the matter any further. 18 The first matter the applicant raised was his illness during the tribunal hearing. 19 In some circumstances, the illness of an applicant at the time of a tribunal hearing may give rise to jurisdictional error by depriving him or her of a meaningful opportunity to give evidence and present arguments as s 425 of the Migration Act requires: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37], so as to stultify or frustrate the tribunal's review function (Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [87] applying SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189). In SCAR the Full Court referred to Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 where s 425 was found to have been breached when the applicant was unable to attend the hearing because of ill health. But there may well be circumstances in which the opportunity is lost though the applicant is present in person, for example where the applicant is genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in a fit state to give evidence or present arguments. Indeed, SCAR was a case of that kind. But this is not. The applicant said he was affected by the medication. There is, however, no evidence to support his statement. Indeed, what material there is points in the opposite direction. Further, unlike in SCAR, the tribunal in this case was aware of the applicant's situation. The tribunal recorded in its reasons: The applicant submitted … police and medical reports relating to a car accident in May 2011 in which [he] was seriously injured. The applicant was clearly in discomfort during the Tribunal hearing and said that he had taken pain killing medication. However, he insisted that he was capable of giving evidence and that he wanted the hearing to proceed; he said that the medication did not make him drowsy. I am satisfied that the applicant was capable of giving evidence, and the manner in which he did so gave rise to no concerns on my part that his evidence was affected by his medical condition or the medication he had taken. 20 The applicant offered no reason, let alone evidence, to doubt the tribunal's conclusion. The applicant had plenty of opportunity to adduce evidence about his capacity to participate in the hearing but he did not do so, despite providing the tribunal with some additional evidence after the hearing. There is nothing to indicate that his capacity to make decisions in his own interests was impaired by either his medical condition or the medication. Cf. SZNVW 183 FCR 575 at [36]. 21 This matter was not raised (at least expressly) by the draft notice of appeal. It was certainly not raised before the federal magistrate. In these circumstances, if it were to be pursued on an appeal, the applicant would require leave. Where, as here, there is no adequate explanation for the failure to take the point and it seems to be of doubtful merit, leave will generally be refused. See VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48]. 22 The second matter the applicant referred to was the existence of new evidence. 23 The fact that there may be new evidence to support his claim for a protection visa does not indicate error on the part of the federal magistrate. If this evidence is cogent and he were to make the appropriate application, he may be able to persuade the Minister to exercise his discretion under s 417 of the Migration Act to substitute a more favourable decision. But the existence of new evidence does not advance his application in this Court. 24 Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis (1994) 181 CLR 309 at 329-331; Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW 183 FCR 575 at [30]. 25 In these circumstances, the application should be dismissed. It would not be just to extend the time within which to appeal because the appeal is bound to fail. There is no reason why the applicant should not pay the Minister's costs. I make orders accordingly. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.