Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - RRT refused protection visa in 1998 - whether Tribunal failed to deal with a significant sur place claim - unexplained six year delay in seeking judicial review - relief refused.

SZDLE v Minister for Immigration [2004] FMCA 761 (25 October 2004)

SZDLE v Minister for Immigration [2004] FMCA 761 (25 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLE v MINISTER FOR IMMIGRATION
[2004] FMCA 761




MIGRATION - RRT refused protection visa in 1998 - whether Tribunal failed to deal with a significant sur place claim - unexplained six year delay in seeking judicial review - relief refused.




Migration Act 1958 (Cth), s.483A

Dranichnikov v Minister for Immigration (2003) 197 ALR 389

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185

Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Applicant:
SZDLE




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1262 of 2004




Delivered on:


25 October 2004




Delivered at:


Sydney




Hearing date:


25 October 2004




Judgment of:


Smith FM




REPRESENTATION

Solicitors for the Applicant:


Mr M. Jones




Counsel for the Respondent:


Mr T. Reilly




Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Objection to competency upheld.

(2) Application dismissed.

(3) The applicant to pay the first respondent's costs in the sum of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1262 of 2004

SZDLE



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) and challenging a decision of the Refugee Review Tribunal which was posted to the Tribunal on 12 June 1998. In his application, the applicant accepts that this was notified to him on or about that date. The application in this Court was filed on 29 April 2004, nearly six years later.

2. The application, with amendments allowed today, seeks orders under s.39B of the Judiciary Act 1903 (Cth) to set aside or quash the Tribunal decision and orders in the nature of mandamus to require the Refugee Review Tribunal to hear and determine the appeal to it according to law, and also a writ of prohibition preventing the Minister from acting on or giving effect to or enforcing the Tribunal's decision.

3. A single ground of review pleaded in the application was argued before me. This was that the Tribunal made a jurisdictional error in that it failed to address a central part of a sur place claim made by the applicant.

4. The application for review also claimed that the Tribunal asked itself a wrong question by addressing the motivation of a person in Australia who the applicant feared had informed on him to the Syrian authorities, rather than considering the Convention basis for the motivation of the Syrian authorities themselves when responding. But counsel for the applicant conceded in argument that a suggestion of this error in parts of the Tribunal's reasons could not be shown to have been a determining factor in its reasoning, and did not press this ground.

5. The central part of the applicant's claim which was argued not to have been addressed by the Tribunal is found in a written statement apparently tendered by the applicant on the day of the hearing before the Refugee Review Tribunal on 27 May 1998. It said:

On Saturday 23/05/98, at about 6 PM in the evening, Mr W... came to my place, where there was my flat mate Mr J.. with a guest Mr I.., he was angry telling before all of us that he belongs to the Syrian Security Services and he put me on their black list under number 5, after that he asked both of them to keep these information secret/silence.

6. It is argued that this statement claimed, in effect, that a Syrian enemy of the applicant in Australia had actually taken steps in an irrevocable way which would jeopardise the applicant's position if he returned to Syria, and that this claim was distinct from the applicant's fears because the Syrian enemy had threatened to take such steps.

7. In other material before the Tribunal there was evidence that the applicant had been told by Mr W... that he was aware of the applicant's refugee application, and that this would be communicated to Syrian security authorities by him or by other associates of those authorities and of the party in power in Syria.

8. In its reasons for decision, the Tribunal sets out the history of the applicant's dealings with the Syrian security forces before he left Syria in 1995 and also refers to evidence of events that had occurred after his arrival in Australia; in particular the Tribunal notes:

The applicant contacted the Tribunal by telephone on 7 April 1998 regarding attendance at a Tribunal hearing. The applicant said his ex girlfriend had a new boyfriend who is a Syrian Bath party member and government representative and that she had given this man the department's decision on the applicant.

9. The Tribunal notes that the applicant brought three witnesses to the hearing but that there were difficulties with obtaining an interpreter due to objections by the applicant as to the affiliations of the interpreters provided. It is therefore unclear how successfully evidence was obtained from the applicant or his witnesses at the hearing in the absence of transcript of evidence. However, the Tribunal sets out a version of what happened at the hearing over several pages, and I have no reason not to accept that this is an accurate summary of the hearing. Significantly, no mention is made that the applicant or any of his witnesses maintained an allegation that the applicant had already been put on a "black list" by the Syrian security services.

10. In relation to the applicant's sur place claim, the Tribunal records the following as being said at the hearing:

The applicant said that after he arrived in Australia he was not particularly involved with the Syrian community, although he went to a couple of Syrian trade fairs to meet Syrian people. The applicant was asked about his relationship with a Syrian woman in Australia and her subsequent relationship with another Syrian man. The applicant said he met the woman in 1997 and went out with her for a few months. The relationship ended in February or March 1998. The applicant said that his woman friend had known the Syrian man with whom she was now involved for about 9 years and that he had been sponsored to Australia by the woman's mother. The applicant said that he found out that his woman friend had told the Syrian man about his application for refugee status. After the applicant's relationship with the woman ended the Syrian man told the applicant he would blacken the applicant's name in Australia and would send people to bash him. The applicant said that in phone calls this man would threaten the applicant's family in Syria because he had influential friends in the Ba'ath Party and he acted as their agent in Australia

...

The applicant was asked what he feared if he returned to Syria. He said that he feared he would be arrested immediately because he criticised the Syrian regime in Australia, because of his family's links to the Muslim Brotherhood and his own past experience with the Military Intelligence, and because the Syrian man in Australia now involved with his ex-girlfriend would have arranged his arrest.

The applicant's witness confirmed that he had been in conflict with the Syrian man who had taken up with his ex-girlfriend and that threats had been made to the applicant. They confirmed that they had heard that the applicant's request for refugee status was known to the Syrian man. One witness said that he had been aware that the applicant was in a relationship with a Syrian women, and that they had leased a house to live in. He had spoken with the applicant's girlfriend after they had broken up in order to try and bring about a reconciliation. The witness said that the ex-girlfriend was very angry about the applicant and had said that she would destroy him. The witness said that is was his opinion that the girlfriend had made these threats out of anger, not really because she really meant them. He said that he had heard from other people that the girlfriend had also threatened the applicant's family.

11. In its findings and reasons the Tribunal said that it found the applicant to be generally a credible witness. It accepted that he and his family in Aleppo had been questioned by Security during the 1980s, that he had been interrogated while at university because of his relations' involvement with a proscribed organisation, and that he had been punched and slapped during the interrogation. The Tribunal also appears to accept that he had been harassed by Security during his fourth year at university, and that it was possible that some mistreatment during his compulsory military service was based on security concerns, although the Tribunal seems to discount that.

12. It then continues:

The Tribunal accepts the applicant's account of the threats he received from a Syrian in Australia. The Tribunal accepts that this man had a close connection with the Syrian Ba'ath party. The Tribunal also accepts that the Syrian man is aware of the applicant's claim for refugee status in Australia, and accepts that the applicant is afraid that the Syrian man will use this information against him with the Syrian authorities.

The Tribunal considers that while the applicant has been threatened while in Australia, these threats are motivated by the anger of his ex-girlfriend and the jealousy of her new partner rather than by any political division. The nature of the conflict suggests that the Syrian man has attempted to frighten the applicant for purely personal reasons, rather than because he believed the applicant to be an opponent of the Syrian regime. He does not appear to have made any threats against the applicant until the applicant had broken up with his former girlfriend and the girlfriend had taken up with the Syrian man. While the applicant claims to have been critical of the Syrian regime in letters from Australia and conversation in Australia, he does not claimed to have been involved in formal political activities of any kind.

The Tribunal is satisfied that the applicant has not in the past suffered harm amounting to persecution in a Convention sense for his political opinion or for any other Convention reason.

The Tribunal is required to consider whether there is a real chance that the applicant will suffer persecution for a Convention reason if he returns to Syria. While the Tribunal acknowledges that the applicant is afraid that he will be arrested on his return, there is no evidence that the Syrian regime punishes people who are verbally critical of them, in the general way that the applicant describes. The applicant has no political profile of any kind, including any profile arising from his relatives' involvement with the Brotherhood in the 1980s, and such critical remarks as he may have made in Australia have been restricted to a handful of people and have not in any sense been made public.

While the applicant fears punishment on his return to Syria both because he has sought asylum in Australia, and because his Syrian enemy in Australia knows of his refugee claims and may use this against him, there is no evidence that people are punished on return to Syria simply for being unsuccessful asylum seekers in other countries (see p 13). The Tribunal does not consider that there is a real chance that the Syrian man who threatened the applicant in Australia either can or will do any harm to the applicant if he returns to Syria. The evidence suggests that the cause of the conflict is purely personal, arising from the applicant's broken relationship with a woman who has subsequently become involved with the Syrian man.

The Tribunal acknowledges that the applicant has a strong dislike of the Syrian regime and fears its powers. The Tribunal is however satisfied that, for reasons described above, the applicant's fear of persecution is not well- founded

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

13. As I understand the submission by Mr Jones for the applicant, it was that the Tribunal failed to address a concern by the applicant that at the time of his dispute with his former girlfriend and her supporters a person, who the Tribunal accepted was in a position to have passed on adverse information to the Syrian authorities, had "put (the applicant) on their black list under number five".

14. He argued that this failure was shown by the fact that in the passage from the Tribunal's reasons set out above there is identification of the concern that "the Syrian man will use this information against him", referring to the applicant's claim for refugee status, but that there is no reference to the concern about having already been put on a Security black list.

15. Counsel for the Minister submitted that in the absence of the transcript of what had been said at the hearing, it was not possible for me to conclude that the black list concern was a separate and substantial component of the fears relating to the applicant's "Syrian enemy in Australia". He also submitted that the Tribunal had dealt with all the concerns relating to that person in its conclusion which I have highlighted above:

The Tribunal does not consider that there is a real chance that the Syrian man who threatened the applicant in Australia either can or will do any harm to the applicant if he returns to Syria.

16. I have been troubled by the Tribunal's reasoning in relation to the applicant's concerns about his "Syrian enemy". Some of its reasoning is unpersuasive at a factual level, and its references to the motivations of the girlfriend and her new partner suggest the possibility that the Tribunal was distracted from the real issue that it had to address. However, I note that it is not put that the Tribunal applied a misconception of the Convention definition of a refugee, but that only it failed to address a substantial component of the applicant's claims.

17. In the recent case of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263, the Full Court of the Federal Court has reviewed authorities including Dranichnikov v Minister for Immigration (2003) 197 ALR 389, cited by the applicant's counsel, concerning the jurisdictional error of "a failure to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review" (see [63]).

18. At [63] the full Court says:

"If the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part on the claims so misunderstood or misconstrued, its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error."

19. However, at [68] their Honours distinguish from the above, a situation where part of a claim might be seen as arising on the material and it has not been addressed, but where that part was not "a substantial clearly articulated argument relying upon established facts". Their Honours suggest that for there to be jurisdictional error "the claim must emerge clearly from the materials before the Tribunal".

20. In the present case, I am not persuaded that the Tribunal was clearly presented with a separate claim that the Syrian enemy in Australia had actually taken steps which would jeopardise the applicant's position if returned to Syria, as distinct from threatening this. I therefore do not accept that the argued jurisdictional error has occurred.

21. I frame my conclusion being not persuaded, because in the absence of the transcript of hearing I am unable to assess how the applicant's case actually emerged in the course of the hearing. On the Tribunal's description of the hearing, in my opinion the Tribunal has sufficiently addressed the applicant's case in the findings I have set out above. I may have concerns as to the factual merits of its conclusion, but I am not persuaded that the Tribunal did not address all the claims made by the applicant.

22. On that ground I would dismiss the application.

23. I would also, more confidently, dismiss the application even if I had been persuaded that the Tribunal made the argued jurisdictional error.

24. This is because the applicant has taken nearly six years to seek judicial review of the Tribunal's decision, and has not put forward any evidence explaining why it has taken him so long. Over all of that period it was open to him to seek judicial review, if not in the Federal Court, in the High Court by obtaining any necessary extensions of time under the High Court rules. The Tribunal's decision was given in June 1998, and judicial review proceedings in the High Court would not have become subject to the privative provisions of Part 8 of the Migration Act which applied to decisions made after 2 October 2001 (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [28] footnote 2). It is therefore not open to the applicant to use the amendments to Part 8 as an excuse for his delay from 2001 until after the High Court decided Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476. Even if it were, this would still leave most of the delay unexplained.

25. It has been said that "if a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved" relief including a writ of prohibition "will issue almost as of right, although the Court retains its discretion to refuse relief if in all of the circumstances if that seems the proper approach" (See Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194, adopted in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [51-2] and [149]). However, it is clear that delay for an extended period which has not been explained can alone provide sufficient reason for refusing relief (see Aala (supra) at [53] and [148-9], also Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57 at [106], [152-153], [222]). In this respect the concern expressed by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495 that "the public interest requires that there be an end to litigation about the efficacy" of "the acts or decisions of public bodies or officials" is an important consideration.

26. Counsel for the applicant, in arguing that the Court should not refuse relief on the basis of delay, submitted that I should be moved by a concern in refugee matters that the Refugee Convention's obligations on Australia, as reflected in the Migration Act, should be validly addressed by administrative decision-makers, and by the potential prejudice to an applicant when this has not happened. I have given serious consideration to this concern. However, its strength in the present case is difficult to assess, since the relief sought by the applicant would procure a hearing not on his claims to have been a refugee in 1998, but on his claims to be a refugee in 2004. In the absence of evidence from the applicant allowing even a superficial assessment of his present claims to refugee protection, it is difficult to assess the real prejudice he has suffered as a result of the 1998 proceedings having miscarried, or that he would suffer if the Court now declines to give relief.

27. Balancing all considerations in the light of the material before me, I would dismiss the application on the ground that the Court should refuse to give relief for an error which was allowed to lie unchallenged for no apparent reason for nearly six years.

28. Since I have also not been persuaded that the Tribunal's decision was affected by jurisdictional error, the Tribunal's decision is therefore a private clause decision and I uphold the notice of objection to competency based on ss.474(1) and 477(1A).

RECORDED : NOT TRANSCRIBED

29. I order the applicant to pay the first respondent's costs in the sum of $4000.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 5 November 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia