SZOPP & Ors v Minister for Immigration & Anor [2011] FMCA 57 (1 February 2011)

Federal Magistrates Court of Australia

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SZOPP & Ors v Minister for Immigration & Anor [2011] FMCA 57 (1 February 2011)

Last Updated: 11 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPP & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 57

MIGRATION – RRT decision – Lebanese family claiming political persecution – Tribunal found no Convention nexus to extortion attempt – no failure to address claim based on particular social group – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1

First Applicant:

SZOPP

Second Applicant:

SZOPQ

Third Applicant:

SZOPR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1985 of 2010

Judgment of:

Smith FM

Hearing date:

1 February 2011

Delivered at:

Sydney

Delivered on:

1 February 2011

REPRESENTATION

Counsel for the Applicant:

First & Second Applicants in person

Counsel for the First Respondent:

Ms E Warner Knight

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application is dismissed.
(2) The first and second applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1985 of 2010

SZOPP

First Applicant

SZOPQ

Second Applicant

SZOPR

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants are a family constituted by a husband, wife and daughter, who are nationals of Lebanon. They have relatives in Australia, and the wife travelled here on a student visa. The husband arrived shortly after her, as a secondary visa-holder. They made separate trips back to Lebanon in 2009. Shortly after the husband returned in September 2009, they made applications for protection visas lodged on 23 October 2009. Both the husband and the wife lodged form C’s, separately claiming to be refugees. However, the wife relied upon her husband’s statements and evidence, and put forward a claim to be a refugee only as a “dependant on my husband”. In the circumstances, I consider that the Department and the Tribunal were correct in assessing the matter against the refugee claims of the husband. I shall refer to him as “the applicant”.
2. In his visa application, the applicant referred to his business supplying electricity to some villages in Lebanon, which he left under the management of his brother-in-law when he came to Australia in 2007. He claimed that in 2009 his wife reported that the business was in difficulties, because of the brother-in-law’s and other members of the family’s support for the political party, Free Patriotic Movement (“FPM”), led by General Michel Aoun. The applicant then travelled back to Lebanon in August 2009. He said:
   • After being away from Lebanon for a few years things have changed and I discovered that people are aggressive and I had to take firm action and meanwhile negotiate new ways to supply the electricity. As a matter of fact, people in Lebanon misunderstood my role, and I was attacked and seriously injured by unknown people, and I submit some of the documents to establish such.
   • ...
   • While in Lebanon I wanted to protect myself and consider myself lucky to be alive. I wanted to live, I wanted to join my wife and only daughter, [his daughter], I spent money which was saved from my business in Lebanon and the people who attacked me did so because they knew that my political opinion was supporting my brother-in-law’s political opinion and because he refused to supply electricity to them. They stole my money and, frankly speaking, I was seriously threatened because I am the owner. I made a verbal promise that the business is not mine anymore. I gave it to my brother-in-law and I was lucky to get out of Lebanon. Frankly I have a fear that I will be attacked and harassed if I return to Lebanon. The business is still in my name in Lebanon. Further evidence will be provided. I had this business for over six years.
3. He claimed that the villages in which he lived and supplied electricity had Muslim and Christian inhabitants, and that the area was dominated by Sunni Muslims who did not support Aoun. It subsequently emerged that the majority of his own village were supporters of Aoun. However, his visa application claimed to fear that “the people who are of opposite political opinion will mistreat me as they have done in the past”.
4. The documents supplied to the Department included translations of statements given by the applicant to law enforcement authorities in Lebanon, in which he claimed that shortly after his return to Lebanon, and while he was in Tripoli visiting his mother in hospital, four unknown persons blocked his way. He claimed to police that “they have beaten me and they asked me for money”. His complaint continued:
   • I told them that I don’t have money, so they took my wallet with my personal documents inside and driving license plus the amount of four hundred and twenty thousand Lebanese pounds. They have menaced to kill and kidnap me if I don’t give them more money. From their speech I realized that they know that I am an emigrant and I worked outside Lebanon. They left me after menacing me that they will follow me and my family and kidnap them. If I don’t give them what they want, noting that I don’t know them and I have never met anyone of them.
5. At a later interview with the Lebanese authorities, the applicant said that the people were unknown to him, referring to “two unknown persons”, who demanded that he give them $US10,000 “to leave me free”, and that “they menace me to kill my family”. At that interview, he told the authorities:
   • I present a legal action against them for committing the crime of threatening to kill my family and me. And I claim finding those criminal, and take the legal procedures in order to arrest them.

The official records provided to the Department said that “no positive result” was reached in the subsequent investigation.

6. The applicant was questioned about his claimed history at an interview held by the delegate on 13 January 2010. The delegate noted that the applicant’s account of his difficulties with his customers differed from his visa application. Rather than suggesting that this was related to the political affiliation of his brother-in-law and himself, he told the delegate that:
   • ... some customers took advantage of his absence and disputed the prescribed electricity charges by attempting to dictate the price they were prepared to pay.

The applicant also referred to his family’s support for the FPM. He told the delegate that he was not himself “a party member”, and he did not have a political profile in Lebanon.

7. The delegate made a decision on 20 January 2010, refusing the visa application. She noted that the unknown persons who were claimed to have assaulted him did not display any political motives. The delegate concluded that their motivation was “personal financial gain” rather than “Convention-related persecutory conduct”. The delegate added:
   • Additionally, I am satisfied that persons returning to Lebanon, who have worked overseas do not constitute a cognisable particular social group. Therefore I do not find that the Convention ground of membership of a particular social group is the essential and significant reason for the harm feared as outlined in subdivision AL of the Migration Act.
8. The delegate also doubted whether the applicant “genuinely” held a subjective fear of persecution, and also said that he would be capable of relocating in Lebanon.
9. The applicant appealed to the Tribunal. He attended a hearing with his wife, and they both gave evidence to the Tribunal. He subsequently forwarded some further documents. I am satisfied that the Tribunal took those documents into account, since it referred to them in its statement of reasons, and addressed them in a permissible manner.
10. The Tribunal gave a description of the hearing in its statement of reasons. This appears to me to be essentially a fair summary of the hearing, which is also shown to the Court in a transcript tendered by the applicant.
11. The applicant confirmed that most people in his village supported Michel Aoun, and he had never been a member of any political party. He said that he was a supporter of the FPM, as was his father, but that he played no leading role, and “just voted for” Aoun.
12. In response to questioning about whether he had ever been threatened or harassed before the incident in Tripoli, he claimed there had been previous harassment over some years, with people demanding payments related to political activities. He thought that this occurred because he and his family members were known supporters of Aoun. No incidents of violence, however, had ever occurred previously.
13. The applicant gave a detailed account of the incident in Tripoli which, as with the previous accounts, did not disclose any Convention motivation for the demands for money which were made with threats of violence. The applicant claimed that in later phone calls from the people whom he had fobbed off by promising payments, he thought that there were references to his business connections, which suggested to him that he was being pursued for his political opinions and connections.
14. The Tribunal said:
    • 57. As to who he feared at present, and why, he said that if he went back to [home town], he did not know what they were thinking and did not know what harm might occur. They had threatened to kill him in the mobile phone threats after the robbery, and during the robbery. Asked to clearly state the reason they might want to harm him now, he said that it was because he always attended the meetings of Aoun, and because his father was in the army and supported Aoun, and his wife’s father did too. I put to him that he had not claimed that there was any reference to his political opinions during or after the robbery. He responded that he knew that the reason was his support of Aoun. I suggested to him that it seemed more likely they just wanted money. He responded that if this were so they would not have talked about the business or said they would kill him. I put to him that neither need be connected to his political opinions. He responded that the election was the reason for the problems in his town.
15. The applicant’s wife gave evidence to the Tribunal about her own family’s background as supporters of Aoun.
16. The Tribunal made a decision on 6 August 2010, affirming the delegate’s decision. The Tribunal accepted the applicant’s evidence that he voted for the FPM, and said that it was satisfied that he was not a member of the party, and was not politically active. It accepted “that supporters of other groups in his town sometimes harassed or put pressure on FPM-supporting business owners for financial favours, particularly during election periods”. However, the Tribunal was not satisfied that any serious harm had resulted to the applicant, and was not satisfied that any problems the applicant had encountered before first coming to Australia had amounted to persecution.
17. Similarly, the Tribunal did not accept that harassment directed at his brother-in-law in relation to the electricity business constituted persecution. It thought that the essential reasons for the recent threats and harassment of the applicant and his brother-in-law “appears to be mercenary, and not a political opinion imputed to them”.
18. The Tribunal also took that view of the incident in Tripoli. It said:
    • 82. As to the claim that [the applicant] was subjected to a demand for money by strangers in Tripoli during his visit to Lebanon in 2009, I accept this incident occurred. In his oral evidence to the Tribunal he did not claim (and has not claimed to the DIAC) that they mentioned his business or his political opinions during this incident. That is consistent with their being unaware of and uninterested in his political views or his business. Their motivation was apparently mercenary, and their assumption that he was prosperous. That was clearly his interpretation at the time, as evidenced by the content of his statement dated 26 August 2009 to the attorney general of North Lebanon, in which he wrote they had taken his wallet containing personal documents and had demanded money, and that he realised “from their speech” that they knew he was “an emigrant” and “worked outside Lebanon”.
    • 83. However he has claimed that, because of his subsequent contact with them, he realised that the incident was connected with his business. In my view, if he had realised that, he would have told the police immediately, rather than leaving it to his solicitor to do so. Further, the letter he has subsequently submitted from a [a lawyer], which is apparently intended to illustrate that his lawyer had given this further information to the police on his instructions (as he claimed during the Tribunal hearing), does not do so. In addition, it makes no reference to an incident of theft or extortion at all, instead referring to a crime of “threat and attempted murder”, the latter of which claims the applicant himself has not made to this Tribunal. There is no reliable evidence before the Tribunal that the authorities in Lebanon were told that this incident was connected with [the applicant’s] problems in [home town], with his business or with his political views. I do not accept that they were. I am satisfied that it was an ordinary crime and was not motivated by any of the reasons set out in the Refugees Convention.
    • 84. As to if it has any relevance to the question of whether he now has a well-founded fear of Convention-related persecution in Lebanon, his brother-in-law, Mr M, has stated in a letter dated 5 May 2010 that an “anonymous group” is currently threatening to kill [the applicant], and has been doing this in telephone calls since [the applicant] left Lebanon in 2009. [His brother-in-law] states that the callers say [the applicant] is “running away” from them and must be punished for doing so. If this is true, given that the calls began after the robbery in Tripoli, the most likely explanation is that the callers are the men who robbed him, took his wallet containing identification documents and presumably the telephone number of the business, and still want his money. I consider it most likely that they are the source of such threats. If so, as I have concluded above, their reasons would be unrelated to the Refugees Convention.
19. The Tribunal concluded that the applicant’s “mere support for the FPM would not give rise to a real chance of persecution” if he returned to Lebanon. It accepted that he might continue to face harassment “from people wanting a discount on his firm’s products or services”, but did not accept that this had amounted to serious harm, or that it would do so “on return”.
20. The Tribunal found that the applicant did not have a well-founded fear of Convention-related persecution, that he was not qualified for a protection visa, and that his dependants were also not qualified for that reason.
21. The applicant now applies to the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to make these orders, only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant or his family are refugees who qualify for protection visas, nor whether they should be given any other permission to stay in Australia.
22. The applicants’ grounds are found only in the original application:
    • 1. The Tribunal misunderstood my claim and failed to recognise me as a refugee.
    • 2. The Tribunal failed to apply the law and accept me as a person who belongs to a social group & meet the definition of refugee.
23. It is difficult to distil from these grounds the particulars of any alleged jurisdictional error. However, they appear to assert that the Tribunal failed to address all the claims raised expressly or implicitly in the material before it, showing that the applicants qualified as refugees. In particular, it appears to be argued that the Tribunal failed to address a claim, separate from the claim of political persecution, that the applicant faced persecution as a member of a particular social group.
24. Such a claim was never articulated by the applicant in his written or oral evidence to either the Department or the Tribunal. However, I have noted above that the delegate did consider whether the applicant’s history raised such a claim, apparently upon the basis of the suggestions in the applicant’s complaints to the Lebanese police that the assailants in the Tripoli incident had referred to him as being “an emigrant” who had “worked outside Lebanon”. As I have noted, the delegate did not consider that this evidence satisfied tests of membership of a particular social group.
25. The Tribunal must have been aware of the delegate’s reasoning. Like the delegate, it also accepted evidence that the assailants may have assumed that the applicant was prosperous, inter alia because of his business and background. In paragraph 82, which I have quoted above, it expressly noted the applicant’s evidence about what was said to him by his assailants. However, in his evidence before the Tribunal, the applicant had clearly pinned his case to be a refugee upon an assertion that the assailants identified him and persecuted him by reason of his political opinions, and not for any other reason falling under the Convention.
26. In this situation, I would not draw inferences from the Tribunal’s decision that it failed to consider the point which the delegate had addressed, nor that it failed to consider for itself whether the applicant’s evidence raised any basis other than political opinion which might bring the applicant under the Refugees Convention. In the Tribunal’s conclusion in paragraph 83, it framed a general conclusion picking up all the reasons set out in the Refugees Convention. In my opinion, this sufficiently indicated that the Tribunal did address the point made by the delegate.
27. On my own assessment of the evidence, there was indeed no claim other than the political claim which was expressly advanced to the Tribunal, nor any such claim which emerged with sufficient clarity to require as a matter of jurisdiction the Tribunal to address it more extensively (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] and [68]).
28. Moreover, I do not consider that the material before the Tribunal would, as a matter of law, have allowed the Tribunal to have found persecution by reason of membership of a particular social group in Lebanon, taking into account the matters which such a determination requires to be established (see Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [36]). Merely being known as a person who is “an emigrant” who had “worked outside Lebanon” does not establish that these are attributes “distinguishing the group from society at large”, which is required under the High Court tests.
29. Thus, in my opinion, not only was no such claim before the Tribunal, but it would not have been open to the Tribunal to have found in favour of the applicant in relation to such a claim on the material which was before it.
30. I therefore do not consider that the grounds of the application have established any jurisdictional error affecting the Tribunal’s decision.
31. The applicant today read to the Court a submission which criticised various elements in the Tribunal’s reasoning, essentially arguing that the Tribunal overlooked evidence about the applicant and his family’s connection to the FPM. I am not satisfied that the Tribunal did overlook any relevant evidence in that respect. The Tribunal certainly addressed the central contention which the applicant again argued before me had been overlooked, that is, that his assault in Tripoli had a political flavour.
32. I am not satisfied that the Tribunal failed to consider the evidentiary weight to be given to the documents the applicant submitted after the hearing, as he contended to me, nor that it overlooked anything in his or his wife’s oral evidence to it.
33. As in other Lebanese cases which have been presented to me in a similar way by applicants assisted by Mr Toufic Laba Sarkis, the applicant’s submission urged the Court to act upon its own sympathies, and to take into account its own opinions about the current situation in Lebanon. However, the Court’s jurisdiction does not allow it do either of these things, nor to be swayed by such submissions. Whatever the Court’s sympathies for the predicament of the applicant and his family, I have been unable to identify jurisdictional error affecting the Tribunal’s decision which would allow me to give them the relief they seek from the Court.
34. I must therefore dismiss the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 11 February 2011