ADQ16 v Minister for Immigration

[2018] FCCA 1229

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADQ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1229

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal’s decision was irrational or unreasonable – no irrationality or unreasonableness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 476

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 115 ALD 248
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404

Applicant: ADQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 122 of 2016

Judgment of: Judge Nicholls

Hearing date: 31 October 2017

Date of Last Submission: 31 October 2017

Delivered at: Sydney

Delivered on: 18 May 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones by direct access

Solicitors for the Respondents: Ms B Rayment of Sparke Helmore Lawyers

ORDERS

1. The application made on 21 January 2016 and amended on 26 April 2016 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 122 of 2016

ADQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 21 January 2016, and amended on 26 April 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 December 2015 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.

2. The evidence before the Court is a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).

Background

1. The applicant is a citizen of Lebanon of Sunni Muslim faith (CB 14). He arrived in Australia in December 2013 as the holder of a visitor visa (CB 15). He applied for a protection visa which was received by the Minister’s department on 7 February 2014 (CB 1 to CB 57). He was assisted in his protection visa application by Mr S Issa, who was at that time, a migration agent and a lawyer, of Firmstone and Associates (CB 28).

2. The applicant provided a Statutory Declaration (dated 4 February 2014) with his protection visa application in which he outlined his claims to fear harm (CB 31 to CB 35). His claims to fear harm, essentially, were said to stem from his role as a personal bodyguard to Dr Ahmad Fatfat. The applicant claimed that Dr Fatfat, a “longstanding member of the Lebanese parliament, former Minister and high profile member of the March 14 political block”, had been “threatened on numerous occasions” by political opponents, and many assassination attempts had been made on his [Dr Fatfat’s] life ([18] at CB 33 to [23] at CB 33 to CB 34).

3. The applicant claimed in his Statutory Declaration that as Dr Fatfat’s personal bodyguard, threats had also been made against his own life. He claimed that due to the current political environment in Lebanon, he was a “discern[i]ble target” for “Hezbollah operatives, political supporters of the Syrian regime and other unidentified groups or individuals who oppose Dr Fatfat and March 14” ([25] to [30] at CB 34).

4. The applicant attended an interview with the delegate on 21 May 2014 (CB 74.9). He raised additional matters at the interview (for example that he was on a “list of targets” of Hezbollah and the Syrian regime (see [49] below)).

5. The delegate refused the application for a protection visa on 23 May 2014 (CB 68 to CB 88). Notwithstanding country information that indicated the prevalence of politically motivated violence in Lebanon, the delegate found that the applicant’s evidence did not corroborate his claims of having been threatened in Lebanon, and that he had “embellished the degree of the threats” that had  allegedly been made against him (CB 83.4).

6. The applicant applied for review to the Tribunal on 24 June 2014 (CB 95 to CB 96). He continued to be assisted by Mr Issa (CB 96.5). In support of his application to the Tribunal, the applicant provided another Statutory Declaration, dated 16 April 2015, which provided “additional information” to that which was before the delegate (CB 134 to CB 139 and [18] at CB 223). He also provided a translated letter dated 16 June 2014 that appeared to be from Dr Fatfat regarding the applicant’s role as his personal bodyguard (CB 98 to CB 99).

7. On 11 November 2014 the applicant filed a “Form 956” and a “Form 956A”, notifying the Tribunal that his appointment of Mr S Issa as his migration agent had ended. The applicant stated on that form that Mr Issa’s Migration Agents Registration Authority (“MARA“) registration had been cancelled (CB 103 to CB 110 and in particular CB 105 and CB 109). The Tribunal wrote to Mr Issa on 20 November 2014, noting the cancellation of his MARA registration and asking him to provide information about any arrangements that had been made for the applicant in relation to his application for review to the Tribunal (CB 111 to CB 112). The Tribunal wrote a letter to the applicant regarding Mr Issa’s MARA cancellation on the same day (CB 113 to CB 114).

8. By letter dated 19 February 2015, the applicant was invited to attend a hearing before the Tribunal, scheduled for 23 April 2015 (CB 122 to CB 123). The applicant provided a completed “Response to Hearing Invitation” form in which he indicated that he had two witnesses to provide evidence on his behalf, one of whom lived overseas in Dubai. He also indicated that he had “other witnesses to be advised” (CB 125 to CB 126).

9. On 1 April 2015 the applicant’s new representative advised the Tribunal that he had received instructions from the applicant (CB 127 to CB 132). The representative provided supporting documents to the Tribunal on the applicant’s behalf on 17 April 2015 (CB 140 to CB 154 and CB 155 to CB 158). Written submissions, and a further supporting document were produced to the Tribunal on 20 April 2015 (CB 159 to CB 186).

10. On 20 April 2015 the applicant’s representative emailed the Tribunal to advise that Dr Fatfat would be providing oral evidence via telephone at the hearing (CB 187). They emailed the Tribunal again on 22 April 2015 to request an afternoon hearing to accommodate Dr Fatfat (CB 188). The Tribunal advised that the hearing would go ahead as scheduled (CB 189 to CB 194). The applicant (through his representative) provided another “Response to Hearing Invitation” form in which he indicated that he had four witnesses, two of whom would be appearing by telephone at the hearing (CB 195 to CB 200).

11. The applicant and his representative attended the hearing before the Tribunal on 23 April 2015 (CB 201 to CB 203). A “friend” of the applicant’s, Mr Williams, also attended the hearing to give evidence. The applicant’s representative provided further supporting documents to the Tribunal on 7 May 2015 (CB 207 to CB 215).

12. The Tribunal affirmed the delegate’s decision on 24 December 2015 (CB 220 to CB 236). At [18] (at CB 223) to [31] (at CB 225) of its decision record, the Tribunal summarised the “additional information” in the applicant’s Statutory Declaration of 16 April 2015 (see also CB 134 to CB 139), which included, among other things, details of the applicant’s involvement in the “Future Movement”, and the threats made against the applicant’s, and Dr Fatfat’s, lives, by political and religious opponents, such as the Islamic State.

13. The Tribunal addressed the applicant’s request that Dr Fatfat and his son give evidence via telephone during the hearing ([33] at CB 226). The Tribunal explained that due to some concerns it had with those witnesses giving evidence via telephone, it instead invited the applicant to provide written statements from Dr Fatfat and his son. A statement from Dr Fatfat dated 5 May 2015 was one of the additional documents provided by the applicant on 7 May 2015 to the Tribunal (referred to above at [13]) (and see CB 213 to CB 214).

14. The Tribunal’s analysis of the applicant’s claims in relation to Dr Fatfat and the Future Movement is at [41] (at CB 227) to [61] (at CB 232) of its decision record. It stated its concerns regarding the applicant’s “gradual shifts in evidence” throughout the process before the delegate, and the Tribunal, regarding his involvement in political activities personally, as opposed to in his capacity as Dr Fatfat’s bodyguard ([41] at CB 227 to [48] at CB 228 to CB 229). At [46] (at CB 228) of its decision record, the Tribunal noted that the applicant could not explain why he previously did not mention that he had mounted banners in the 2010 elections with his friend, Mr Williams (Mr Williams was one of the applicant’s witnesses at the Tribunal hearing and gave evidence of this occurring).

15. The Tribunal referred to the applicant’s submission that his former migration agent, Mr Issa, had “deliberately or otherwise omitted relevant information from the applicant’s statement” ([46] at CB 228). However, it did not consider this a satisfactory explanation for the applicant’s failure to refer to his political activities in his interview with the delegate ([46] at CB 228).

16. The Tribunal found that the applicant had “significantly exaggerated his political profile and the nature of his political activities” ([48] at CB 228), and ultimately found that the applicant was “a low level supporter of the Future Movement who was employed by Dr Fatfat as [his] bodyguard” ([48] at CB 229).

17. The Tribunal addressed the evidence given at the hearing by Mr  Williams, that he was was shot and injured in August 2013 for supporting the Future Movement, and that the same people responsible for shooting Mr Williams, had threatened to shoot and kill the applicant ([49] at CB 229).

18. The Tribunal noted that Mr Williams’ evidence was that he personally knew his attackers (who had purportedly shot him), whereas the applicant’s evidence was that he did not know who had shot Mr Williams, nor did he know the identities of the people who were threatening his own life ([53] at CB 230).

19. The Tribunal found it “peculiar” in circumstances where Mr Williams and the applicant were friends, and lived together, that Mr Williams knew the identities of his attackers, and the applicant did not. Ultimately, it found that the applicant’s and Mr Williams’ evidence in relation to the claimed shooting of Mr Williams was “unpersuasive and unreliable” ([53] at CB 230).

The Application to the Court

1. At the hearing the applicant was represented by counsel on a direct access basis. The Minister was represented by a solicitor.

2. Although the amended application contained five grounds, only ground five was pressed (save for the particulars to ground four). Further, it is in the terms as set out in the applicant’s written submissions (filed on 9 October 2017) as follows:

   “GROUND 5

   [T]he Second Respondent's conclusion with respect to the Applicant’s failure to raise his political activities in Lebanon at the interview with the First Respondent’s Delegate was affected by irrationality.

   Particulars

   1. The Applicant relies on the particulars of Ground 4 above.”

3. The particulars to ground four (in the amended application) (which form a part of ground five above) are as follows:

   “Particulars

   1. The Second Respondent was not satisfied with the Applicant’s explanations for why he had omitted information about his political activities in his interview with the First Respondent’s delegate (at paragraph 46 of the Impugned Decision).

   2. In coming to the conclusion in paragraph 1 above, the Second Respondent held that, even if there was a deliberate or negligent failure by the Applicant’s (then) Migration Agent to raise such matters, this did not explain why the Applicant did not refer to his political activities at the interview.

   3. In coming to the conclusions referred to in paragraphs 1 and 2 above, the Second Respondent failed to consider the following submissions and evidence provided by the Applicant in a Statutory Declaration made on 6 May 2015 (p.208 Court Book):

   a. The Applicant was advised by his former Migration Agent not to include in his original statement or interview with the First Respondent’s delegate any matters beyond his employment as Dr Fatfat’s bodyguard

   b. The Applicant did not refer to his political activities at the interview because he ‘followed the instruction’ of the Migration Agent

   c. The Migration Agent did not attend the Applicant’s interview with the First Respondent’s delegate

   d. The Applicant’s stress at the interview was exacerbated when he realised that evidence which the Migration Agent had undertaken to translate was not translated

   e. The Applicant complained to the Migration Agent following the interview; and

   f. Having formed the view that he did not receive appropriate advice and assistance from the Agent, the Applicant informed the First Respondent of his concerns, and also sought assistance in this regard from the Refugee Advice and Casework Service and the Migration Agents Registration Authority (‘MARA’).

   4. The Second Respondent also failed to consider the following:

   a. Other evidence of the Applicant’s dissatisfaction with his former Migration Agent, and the cancelation of the Agent’s registration (Court Book, pp.103-112, 116); and

   b. The fact that the Agent had been the subject of numerous complaints, including several complaints by the Second Respondent itself, which had resulted in a decision by the MARA to cancel the Agent’s registration on a number of grounds, including that the Agent:

   i. Was not a person of integrity;

   ii. Was not a fit and proper person to give immigration assistance; and

   iii. Had breached the Migration Agents Code of Conduct (See MARA decision in relation to complaints 9475894 - 5963, 6043, 6113, 6170, 6198, 6236, 6655, 6675, 10 October 2014, Annexure A to Affidavit of Ms Amina Youssef, sworn on 22 April 2016).”

Consideration

1. The applicant’s ground asserts that the Tribunal’s decision was affected by “irrationality” and therefore fell into jurisdictional error in the manner described in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 115 ALD 248 (“SZMDS”) (at [130]) and SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; (2015) 238 FCR 404 (at [10] and [59]).

2. I should note that at the hearing, the terms “unreasonable” and “illogical” were used by the applicant interchangeably.

3. SZMDS at [130] is in the following terms:

   “In the context of the Tribunal’s decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

4. Before the Court, the applicant drew attention to what he said were two “critical” parts of the evidence.

5. The first is found in the applicant’s Statutory Declaration of 6 May 2015 ([2] at CB 208):

   “I mentioned all the incidents to my previous agent Mr Sam Issa, but he advised me that since I worked as a bodyguard for Dr Ahmad Fafat and I got the confirmation from him, I had a strong case to win. Therefore, he advised me not to include or raise any other events or incidents in my statement or in my interview. He took money from me and said he would get the translation of my Security Identity card and would submit to the department. I believed and entrusted him because he is a lawyer and practices in Australia in immigration law. When I went to the interview he did not come with me, and I was nervous during the interview. During the interview I realised that he had not submit the translated document to the case officer, which further aggravated my stress. Because he had already advised me not to mention the other incidents, I did not mention them. I followed the instruction of my previous agent.”

   [Emphasis added.]

6. The second is found in the Tribunal’s decision record at [46] (at CB 228):

   “The Tribunal does not find the applicant’s explanations for the gradual shifts in his evidence throughout the process satisfactory. Even if the Tribunal were to accept that the applicant’s former migration agent had deliberately or otherwise omitted relevant information from the applicant’s statement, this does not explain why the applicant had not referred to his political activities at the departmental interview. The applicant did not provide a persuasive explanation as to why Mr Williams had mentioned that they had mounted banners together during the 2010 elections, when he had failed to mention this in his written and oral evidence to the department or the Tribunal. The Tribunal does not accept that this failure was due to the applicant misunderstanding the Tribunal’s instructions in relation to speaking in shorter sentences. The hearing lasted for nearly three hours and the applicant provided detailed evidence in relation to all aspects of his claims. In his statutory declaration of 6 May 2015, the applicant asked the Tribunal to take into account his limited education and ‘understanding skills’. The applicant gave evidence at the hearing that he has completed 10 years of schooling and had studied Electronics and Information Technology at a technical college, although he did not obtain any qualifications in relation to the latter. The applicant appeared articulate and responsive at the hearing and the Tribunal did not form the impression that his comprehension of the Tribunal’s questions or his ability to respond were hampered in any way.”

   [Emphasis added.]

7. The applicant’s assertion is that jurisdictional error is revealed because it was not open, and was therefore irrational, of the Tribunal to find that there was no explanation given by the applicant as to why he had failed to mention to the delegate, certain political activities that he subsequently raised before the Tribunal. In submissions, the error was also described as “legal unreasonableness” (see [8] of the applicant’s written submissions).

8. The applicant submitted that an explanation for this “failure” was given to the Tribunal. Namely, that he was told by his then migration agent not to mention his political activities at the interview with the delegate.

9. The applicant submitted that the Tribunal’s finding (that the applicant has not explained his “failure” to raise certain political activities with the delegate), was critical to its decision. This can be shown, in the applicant’s submission, because the Tribunal made specific reference to the applicant’s omission (or “failure”) in its decision record (see [44] at CB 227 to CB 228 and the reference there to s.424AA of the Act).

10. The applicant’s position was that the advice from the applicant’s former migration agent, was an important piece of evidence in the applicant’s case, which was “material” to the Tribunal’s decision. The failure to take it into account meant that the entire decision was irrational, unreasonable or for that matter, illogical.

1. Further, that given the explanation for the omission as given by the applicant was “inherently plausible”, the Tribunal’s failure to make a specific finding in relation to whether or not the migration agent gave such advice, means that the decision was legally unreasonable or illogical as explained in relevant authorities.

2. To be clear, the applicant explained that it was not the applicant’s submission that the Tribunal “wholly overlooked” the applicant’s explanation for his omission. Rather, what was said to make the Tribunal’s decision unreasonable and illogical, was that  the reason the applicant gave for not mentioning his political activities before the delegate did not form a part of the Tribunal’s reasoning towards the important finding that there was no explanation (from the applicant) for his initial omission of this claim.

3. In other words, the applicant’s ground seeks to take issue with how the Tribunal dealt with the applicant’s initial failure to raise a claim that was subsequently raised before the Tribunal, and the explanation given by the applicant for that failure.

4. While the applicant’s case directs attention specifically to the matter of the applicant’s explanation for his omission, the disposition of the applicant’s ground cannot ignore the entirety of the Tribunal’s reasoning. The applicant’s, it must be said, selective focus ignores the context within which the Tribunal addressed this matter.

5. This requires an examination of how the applicant’s claims to fear harm were progressively raised throughout the process before the delegate and the Tribunal, and how the Tribunal attempted to deal with them.

6. As set out above, the application for the protection visa was accompanied by a Statutory Declaration of the applicant’s dated 4 February 2014 (CB 31 to CB 35). Under the heading of “Why I fear returning to Lebanon” the applicant stated that his fear arose from being the “personal bodyguard of Dr Ahmad Fatfat” who was a “longstanding member of the Lebanese Parliament” and a “high profile member of the March 14 political block” ([20] at CB 33 and [25] at CB 34). Nothing else of relevance to the current consideration was raised in the Statutory Declaration of 4 February 2014.

7. It is important to note that after having interviewed the applicant, the delegate found (CB 79.8):

   “After having interviewed the applicant and carefully examined his evidence in totality, I do not accept that the applicant has faced any harm let alone serious harm in Lebanon in the past because of his political opinion and/or employment, or that there is a real chance that he would be subjected to serious or significant harm for the same reasons in the reasonably foreseeable future…”

8. These reasons included the following.

9. One, in his Statutory Declaration of 4 February 2014 the applicant claimed to have received “numerous threats” because he was Dr Fatfat’s bodyguard ([25] at CB 34).

10. The delegate found the applicant’s “testimony” (at the interview) in this regard, to be “vague” (CB 83.2). In this light, the delegate found that the applicant had not been the subject of any form of “verbal threats” (CB 82.3). Further, that the applicant made no claim that he had been the subject of “any form of physical threats or attempts to be harmed for the reasons of his claimed employment or political affiliation” (CB 82.4). In context, this latter point was a reference to the consequence of his employment with Dr Fatfat.

11. Two, the delegate found inconsistency between the applicant’s claims as to his work as a bodyguard, and as a carpenter, and his claim to fear harm (CB 82.5).

12. Three, the following is of importance given what ultimately emerged before the Tribunal (CB 82.9):

    “I questioned the applicant about his political opinion. He stated that he is not a member of any political party or group in Lebanon however is a supporter of Dr Fatfat and [the] March 14 political block. The applicant did not give any more evidence in this context.”

13. Four, based on the applicant’s own evidence which the delegate described as “somehow [in context, somewhat] vague”, the delegate found that the applicant’s testimony would (CB 83.2):

    “…corroborate that while in Lebanon he did not experience any form of harm amounting to persecution for the reason of his political opinion, political affiliation, or claimed employment. In support of this finding I note the applicant’s oral testimony that if he were to return to Lebanon he would return to Syr, as Syr is the safest place for him, where he is surrounded by his family and the well-known, religiously homogeny, and protective community.”

14. Five, the following is also self-explanatory (CB 83.4):

    “Based on the applicant’s evidence I find that he embellished the degree of the threats he allegedly experienced in Lebanon and his circumstances for the purpose of his application. In support of this finding I considered the applicant’s tardiness in applying for protection in Australia…”

15. Six, the delegate further found (CB 83.7):

    “Notwithstanding, the above adverse country information about the prevalence of politically motivated violence in Lebanon, I find that the applicant’s evidence does not corroborate his claims of having been threatened in Lebanon or having a subjective genuine fear for his safety. Consequently, I find not credible his claim that his name is on the list of people targeted by Hezbollah and/or [the] Syrian regime. For the above reasons I do not accept that the applicant is at risk of harm for the claimed reasons if he were to return to Lebanon.”

16. Seven, the delegate found (CB 83.9):

    “In this particular case, for the above discussed reasons I do not accept that the applicant has faced serious harm in the past because of his political opinion and/or past employment. After having interviewed the applicant I find no evidence before me to support a finding that the applicant would be at greater risk of serious harm should he return to Lebanon, than he was prior to his departure from Lebanon. Furthermore, it is the applicant’s own testimony that if he were to return to Lebanon he would return to Syr, his safe home village, which is indicative that he does not hold genuine subjective fear for the reason of his past employment, political opinion or claimed association with Dr  Fatfat or any other Convention reason.”

17. As set out above, the applicant applied for review to the Tribunal on 24 June 2014. He continued to be represented by Mr Issa (CB 96). The applicant ended Mr Issa’s representation on 11 November 2014 (CB 103 to CB 106).

18. The applicant then appointed another migration agent to represent him (from Parish Patience Immigration Lawyers). The migration agent subsequently made lengthy written submissions on the applicant’s behalf dated 20 April 2015 (CB 160 to CB 185).

19. Before the Court, the Minister submitted that while these written submissions were about the general situation in Lebanon and relevant country information, there was nothing in those submissions to say that the applicant had not previously provided a complete set of claims to fear harm because he had been told by Mr Issa not to do so. On the evidence before the Court, I agree with this submission.

20. The Tribunal hearing was held on 23 April 2015 (CB 201). Importantly, given what is extracted from the Tribunal’s decision record below (including as to what was said at the hearing) it was only during the hearing that the applicant raised the matter of having been told by Mr Issa not to raise certain claims before the delegate. This was in response to the Tribunal’s request for an explanation regarding the omission.

21. The applicant also raised the matter in another Statutory Declaration made by the applicant on 6 May 2015 (CB 208 to CB 211). That is, after the hearing. The applicant relevantly stated (CB 208.4):

    “I mentioned all the incidents to my previous agent Mr Sam Issa, but he advised me that since I worked as a bodyguard for Dr Ahmad Fafat and I got the confirmation from him, I had a strong case to win. Therefore, he advised me not to include or raise any other events or incidents in my statement or in my interview. He took money from me and said he would get the translation of my Security Identity card and would submit to the Department. I believed and entrusted him because he is a lawyer and practices in Australia in immigration law. When I went to th interview he did not come with me, and I was nervous during the interview. During the interview I realised that he had not submit the translated document to the case officer, which further aggravated my stress. Because he had already advised me not to mention the other incidents, I did not mention them. I followed the instruction of my previous agent.”

    [Emphasis added.]

22. To understand the Tribunal’s reasoning, including that part now impugned by the applicant’s ground, it is relevant to note that the applicant provided three letters from Dr Fatfat.

23. The first, dated 27 January 2014 was submitted with the protection visa application. In essence, it did nothing more than state that the applicant had been his bodyguard (CB 41).

24. The delegate stated in relation to this letter (CB 79.4):

    “The letter allegedly signed by Dr Fatfat is issued on a blank paper, rather than an official letterhead and has no other official stationary features or stamp. The authenticity of this evidence has not been tested. Furthermore, Dr Fatfat does not give any corroborative statement that the applicant experienced any problems, or threats while being employed as his personal bodyguard. Therefore I do not give this evidence much weight.”

25. The second letter was dated 16 June 2014. It accompanied the application for review to the Tribunal (CB 98 to CB 99). This letter, which followed the delegate’s decision, made such general references as “danger” and “threats” that Dr Fatfat and the applicant “face together”.

26. The third letter was dated 5 May 2015 (CB 213 CB 214). It accompanied the applicant’s Statutory Declaration dated 6 May 2015, submitted to the Tribunal on 7 May 2015. That is, after the hearing before the Tribunal. This letter made reference (for the first time) to the applicant’s political involvement in supporting Dr Fatfat and the “Future Movement”.

27. As set out above, the applicant’s ground seeks to impugn the Tribunal’s reasoning and findings at [46] (at CB 228) of its decision record (see [28] above).

28. It is trite to say that the Tribunal decision must be read fairly. This includes holistically. When one part of the Tribunal’s decision record is the subject of criticism by way of an applicant’s ground (which alleges irrationality, and submissions what allege unreasonableness), the disposition of the complaint must include a contextual understanding of what the Tribunal has reasoned.

29. In my view, that is particularly the case when one part of the Tribunal’s decision record is used to argue that the entire decision is irrational, unreasonable or illogical. This means that in the current case, regard should be had to the following.

30. First, [41] (at CB 227) of the Tribunal’s decision record as follows:

    “The Tribunal accepts that the applicant was employed as Dr Fatfat’s bodyguard from August 2007 to December 2013. The Tribunal accepts that the applicant was a supporter of Dr Fatfat, who was a Future Movement MP, representing the applicant’s electorate in the Lebanese parliament. While the Tribunal also accepts that the applicant had carried out some activities in support of Dr Fatfat and, by extension, the Future Movement, he has embellished and exaggerated his evidence in this regard throughout the process.”

31. It is important to note that in the chain of reasoning the Tribunal begins with the finding that the applicant had “embellished” and “exaggerated” his evidence throughout the process. It then goes on to explain it.

32. Second, [42] (at CB 227) of the Tribunal’s decision record is as follows:

    “The applicant did not make any mention of his political activities, during elections or at other times, in his written statement to the department or in his oral evidence to the delegate. However, in his statutory declaration of 16 April 2015, the applicant stated that he started supporting the Future Movement in 2005. As a supporter of the Future Movement and the March 14 Coalition, he used to help political activists during campaigns to promote the objectives of the Movement. During election times, he used to go from house to house in his locality and encourage people to vote for the March 14 Coalition. At the hearing the applicant was asked about his political activities as a supporter of the Future Movement. He stated that his activities were only in connection to Dr [Fatfat]. If, for example, Dr Fatfat was attending a festival, the applicant would ‘clear’ the area for him. When asked if he had any other political activities, he said ‘no’. Later in the course of the hearing, the applicant stated that during local elections in 2010 he went to the village and verbally encouraged people to vote for Dr Fatfat. He added that during the election campaign, he also charged the mobile phones of election monitors, delivered their special uniforms and bought them breakfast and lunch. Towards to the end of the hearing, when the Tribunal put to the applicant that it did not appear that he had a political profile that would have made him a target of harm, he stated that those who wanted to harm him knew about his involvement in the elections. When the Tribunal reminded him of his earlier evidence in relation to his limited political activities, he stated that the election monitors were the biggest driving force behind the 2010 elections. The applicant made no mention of involvement in any other activities.”

33. Of relevance here, are the Tribunal’s findings relating to the “evolution” of the applicant’s claims from his initial Statutory Declaration (dated 4 February 2014), and subsequent events, as referred to above.

34. Third,  [44] (at CB 227 to CB 228) of the Tribunal’s decision record as follows:

    “At the hearing, under s.424AA, the Tribunal put to the applicant his failure to disclose his political activities to the delegate at the interview, as well as the inconsistencies between his evidence and that of Mr Williams in relation to the nature of his claimed political activities. The applicant respondent by stating that Mr Williams was not employed by Dr [Fatfat]. He had not disclosed to Mr Williams all the information about himself and he might not have mentioned the range of his political activities to the Tribunal because he had either forgotten or had misunderstood the Tribunal when it had asked him to speak ‘briefly’. This was a reference to the Tribunal’s introductory notes at the start of the hearing, requesting the applicant to speak in short sentences in order to allow the interpreter to convey his evidence accurately. In his statutory declaration of 6 May 2015, the applicant provided further explanations, stating that he gave evidence to the Tribunal that he was involved in ‘election work, including helping agents and managing them’. He went on to refer to other activities he had not previously mentioned to the department or the Tribunal, including distributing pamphlets and overseeing election campaigns. He stated:

    I confirm that I was involved in political activities including distributing pamphlets and asking people to vote for the Future Movement and March 14 Alliance…I [helped Dr Fatfat] in the parliamentary elections in 2009 and helped members of the Future Movement and March 14 Alliance during the parliamentary elections and supported Kazem El Kheir to win in 2010. I also helped the party workers in the municipal elections of 2010 where I was trusted by Dr Fatfat and his family to oversee the election campaigns.”

35. What is relevant here, is that the Tribunal squarely put to the applicant at the hearing, his failure to disclose his subsequently claimed political activities to the delegate at the interview.

36. This was in the context of not having made mention of these activities in his Statutory Declaration of 4 February 2014 (provided with his protection visa application), or his oral evidence to the delegate ([42] at CB 227)

37. Paragraph 44 (at CB 227 to CB 228) of the Tribunal’s decision record must be read in context with [42] (at CB 227) of the Tribunal’s decision record. The Tribunal’s concern as to this failure arose with reference to what had occurred at the hearing and what the applicant had put in his Statutory Declaration of 16 April 2015.

38. Further, it must also be read in context with [47] (at CB 228) of the Tribunal’s decision record:

    “In his statutory declaration of 6 May 2015, the applicant referred the Tribunal to Dr Fatfat’s post hearing letter of 5 May 2015, in which Dr Fatfat described the applicant’s purported political activities. This information was absent from Dr Fatfat’s previous correspondence and the Tribunal is highly dubious of the reliability of Dr Fatfat’s claims in the letter, given that is was provided after the Tribunal has identified the various inconsistencies in the applicant’s evidence in this regard at the hearing. The Tribunal gives little weight to the contents of Dr Fatfat’s letter concerning the applicant’s political activities and is of the view that these claims have been contrived to remedy the problematic nature of the applicant’s evidence throughout the process.”

39. A critical, if not the critical, finding made by the Tribunal which underpinned its conclusion on the review, and which was adverse to the applicant, was set out at [48] (at CB 228 to CB 229) of its decision record as follows:

    “For the above reasons, the Tribunal is of the view that the applicant has significantly exaggerated his political profile and the nature of his political activities since he first lodged his application for a protection visa. The Tribunal accepts that the applicant was a supporter of Dr Fatfat and the March 14 Coalition, that he might have ran some errands for Dr Fatfat during the elections, including assisting polling monitors in

    
    

    non-political matters, including providing them with food or charging the phones, and that he might have talked to his relatives and friends about voting for the Future Movement. However, the Tribunal does not accept that he had mounted banners; that he distributed pamphlets and handbills; that he was actively involved in the 2009 parliamentary elections, the 2010 municipal elections or the Minye-Dannieh bi-elections; that he had overseen election campaigns; and that he had attended political campaign meetings. The Tribunal finds that the applicant was a low level supporter of the Future Movement who was employed by Dr Fatfat as the latter’s bodyguard.”

    [Emphasis added.]

40. The applicant’s ground, as set out above, focuses on the proposition that the Tribunal’s decision was irrational, and as referred to in submissions as unreasonable, and possibly illogical (in the requisite sense), because the Tribunal was said to have found that the applicant had not provided an explanation as to why he did not mention his political activities at the delegate’s interview, when the applicant had in fact provided such an explanation (that his migration agent told him not to mention those matters).

41. The applicant’s ground is not made out.

42. First, contrary to the applicant’s submission, the Tribunal did not make a finding that there was “no explanation” given by the applicant as to why he omitted to raise at the delegate’s interview (and for that matter in his initial Statutory Declaration of 4 February 2014), the matters involving his political activities.

43. Rather, the Tribunal’s finding was that “the applicant’s explanations for the gradual shifts in his evidence throughout the process” were not “satisfactory” ([46] at CB 228).

44. To be blunt, this does not require any contextual reading. As a matter of fact, the premise underlying the applicant’s ground is not available to him. There is plainly a difference between the Tribunal saying that the applicant’s explanation was not satisfactory, and the contention that it said there was no explanation.

1. Second, it is clear when the first sentence of [46] (at CB 228) of the Tribunal’s decision record is read contextually (particularly with [45] at CB 228), that the Tribunal understood that the explanation given by the applicant was that he ([45] at CB 228):

   “…also blamed his former migration agent for not disclosing his role in the 2010 elections in the statement lodged in support of his application for a protection visa.”

2. Third, having dealt with the applicant’s failure to mention his political activities in his initial Statutory Declaration, in the second sentence of [46] (at CB 228) of the Tribunal’s decision record, the Tribunal explained its view of the applicant’s lack of “satisfactory” explanation for the shifts in his evidence, with reference to the interview before the delegate, and the hearing before the Tribunal.

3. It is important to note, as set out above, that the applicant did raise additional matters at the interview with the delegate. These did not include the “political matters”. On a fair reading, the Tribunal found as unsatisfactory, the applicant’s explanation that he did not raise the “political” claims at the interview, because his then migration agent told him not to raise anything further than what was in the Statutory Declaration, yet he did raise other additional matters in spite of the migration agent’s advice (for example, his being on a “list” of targets, see [49] and [67] above).

4. The remainder of [46] (at CB 228) of the Tribunal’s decision record, again, when read in context, provides a rational, reasonable and logical explanation for the Tribunal’s adverse view of the applicant raising a number of other new, and additional, claims at various other stages of the process of the consideration of the protection visa application, and the process of the review.

5. This included consideration of Dr Fatfat’s various letters in support, which reflected the applicant’s evolving scope of his claims ([47] at CB 228).

6. As set out above, the critical finding made by the Tribunal was that the applicant had significantly exaggerated his political involvement and profile “since he first lodged his application for a protection visa” ([48] at CB 228). This finding was reasonably open to the Tribunal on what was before it. The Tribunal provided a rational, reasonable, logical and intelligible justification, and explanation, for this finding in the preceding paragraphs of its decision record.

Conclusion

1. The applicant’s sole ground is not made out. It is appropriate to dismiss the application to the Court as amended. I will make the appropriate order.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 18 May 2018