AIQ15 v Minister for Immigration

[2015] FCCA 1466

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1466

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – procedural fairness – no jurisdictional error.

Legislation:  

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476, 477

Applicant: AIQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 898 of 2015

Judgment of: Judge Street

Hearing date: 29 May 2015

Date of Last Submission: 29 May 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr G. Johnson

Solicitors for the Respondent: Minter Ellison Lawyers

ORDERS

1. The application for an extension of time is dismissed. 

2. The applicant to pay the first respondent’s costs fixed in the amount of $6,825. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 898 of 2015

AIQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(AS CORRECTED)

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 22 July 2014, affirming a decision not to grant the applicant a Protection (class XA) visa.  The Tribunal noted that the applicant was a citizen of Lebanon and his claims were assessed against that country.

2. The applicant applied for a visa on 10 October 2012 which was refused on 22 January 2013.  The applicant appeared before the Tribunal on 6 August 2013 to give evidence and present arguments and was assisted by an interpreter as well as being represented by a registered Migration Agent.  The Tribunal correctly identified the applicant’s claims and evidence. The Tribunal put to the applicant the dispositive issues in relation to the applicant’s claims in evidence. 

3. Relevantly, the Tribunal found:

   20. Having considered all the evidence, I am not satisfied that there is a real chance that the applicant would face serious harm amounting to persecution if he were to return to Lebanon. I am also not satisfied that there are substantial grounds for believing that there is a real risk of significant harm if he returns to Lebanon. I have concluded, for the reasons below, that the decision under review should be affirmed.

   21. I do not accept that the incident in 2006, when the applicant was knocked off his motorcycle, was anything more than a traffic accident. There is no basis to be satisfied that the occupants of the car were Syrian intelligence agents merely on the basis that the car had a Syrian numberplate, given that Lebanon and Syria share a border and it would be normal to expect Syrian-plated cars in Lebanon and vice versa. I do not accept that there were follow-up threatening phone calls, I consider this to be a fabrication by the applicant to attempt to exaggerate his risk of harm. He changed his evidence in this regard at the interview with the delegate, and I am satisfied it is a fabrication to improve his chances of obtaining a protection visa. The incident occurred eight years ago and there have been no further consequences. I am satisfied that there is no risk of serious harm (refugee criterion) or significant harm (complementary protection criterion) by reason of this incident.

   22. I have come to the same conclusion in relation to the applicant’s claim that his uncle was abducted by Syrian agents. The applicant has made this claim consistently, so it may be true. I make no definitive findings because the evidence available is so scant. There is no explanation for why his uncle would be targeted but no-one else in his family. The incident occurred in 2008 and his uncle was released in 2011, and there have been no further consequences despite the civil conflict in Syria which has arisen since that incident. In the event that the applicant’s uncle was abducted, detained for three years and tortured, I am not satisfied that the event has any relevance to the applicant’s present circumstances or to him or his family. I am satisfied that there is no risk of serious harm (refugee criterion) or significant harm (complementary protection criterion) by reason of this incident.

   …

   24. I accept that there are sectarian tensions in [T] which flare into violent confrontations on occasions, and that the applicant’s residence is located near to the demarcation line between the majority Sunnis and the minority Alawites. I accept also that the political situation in Syria is adding to those tensions since the Assad regime is supported by the Alawites (and Shiite Hezbollah) and opposed by Sunnis and the Future Movement. I accept that violence in that area of [T] can pose a general risk of indiscriminate harm if caught out in it when it occurs. However, I do not accept that the applicant was of sufficient public or political profile, or engaged in activities of a nature that would have brought him to prominence, such as to be targeted by pro-Syrian or anti-Future Movement activists. The applicant’s activities were all low level, most Sunnis (who constitute a majority in northern Lebanon) hold the same political views as he does, and the only people with whom he discussed his politics were family and friends. Like many Sunnis in [T] it is likely that he attended demonstrations protesting against the Assad regime, and political and election rallies in support of the Future Movement. However, I do not accept that armed people came to his former place of work or to his residence because of his opinions and activities. His political involvement is simply too mainstream, low level and episodic to warrant adverse attention by political opponents. I am satisfied that the applicant has embroidered his political activities in an attempt to elevate his profile, and I am satisfied that the claim of armed men looking for him at work and at home are fabrications for the same purpose, in order to strengthen his claims to protection. I am satisfied that the risk of harm to the applicant from political opponents in the course of violent confrontations in [T] is remote. I am satisfied that there is no risk of serious harm (refugee criterion) or significant harm (complementary protection criterion) on this basis.

   25. The incident involving the applicant’s friend who was killed by a sniper while traversing the demarcation area during a fight between Alawites and Sunnis is a very unfortunate consequence of sectarian violence, but it is not targeted harm and it is something to which all citizens residing in that area of [T] can be subjected to. I am satisfied that the applicant is able to remain away from violent confrontations and disturbances when they occur in [T] in order not to get caught in those incidents. The applicant has not previously been involved in such conflicts and does not claim an intention to do so in the future. I am satisfied that the risk of serious harm (refugee criterion) or significant harm (complementary protection criterion) to the applicant by reason of general disturbances and sectarian violence in [T] is remote.

   26. The applicant’s claim that he will be called back to army reservist service because of the deterioration recently in the security situation in Lebanon is not supported by any independent information and is, I am satisfied, speculative only. I am satisfied that the chance of being recalled to military service is remote. I am satisfied that the risk of serious harm (refugee criterion) or significant harm (complementary protection criterion) to the applicant by reason of being recalled to military service is remote.

   27. There are a number of other factors which lead me to conclude that the applicant’s claimed fear is exaggerated for the purpose of strengthening his protection claims, which support my findings above for disbelieving those aspects of his claims which I have identified as fabricated. The applicant’s explanations for these matters, taken individually, might appear convincing, but in totality these matters cast serious doubt on the genuineness of his claimed fear.

4. The Tribunal noted the applicant’s delay in departing Lebanon in respect of the grant of his visa as well as the delay in his lodging of the protection visa application following his arrival in Australia. The Tribunal found that the applicant’s motivation was to extend his stay in Australia rather than for a genuine fear of return to Lebanon.  It was in those circumstances that the Tribunal concluded:

   31. The applicant voluntarily returned to Lebanon in September 2009, which was after the incident of the car accident in 2006 which he says resulted in adverse attention by Syrian intelligence operatives. A voluntary return to the place where a person claims to fear serious harm (refugee criterion) or significant harm (complementary protection criterion) does not, without more, appear consistent with that claimed fear.

   32. For the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future if he returns to Lebanon. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   33. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk he will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. The grounds of the application fail to identify any jurisdictional error and are, in substance, a repetition of the applicant’s claims and evidence.  There is a reference in respect of the adverse findings of credit, in respect of which it is alleged: 

   It cannot be a fair procedure, or natural justice, to dismiss a plaintiffs claims without stating the reasons why in a Commonwealth tribunal.

6. It is clear that the Tribunal made adverse findings that were open on material and reasons were provided in relation to that adverse finding.  The making of an assessment of the applicant’s credit was a matter for the Tribunal.  There is no substance in the proposition of any denial of procedural fairness by reason of the adverse findings in respect of the applicant’s credit. 

7. To the extent that the application identifies a request for the Court to review the matter on compassionate grounds, it is important to understand this is not a Court of Appeal.  This is a Court which exercises jurisdiction that is confined to jurisdictional error by the Tribunal.  The application seeks an impermissible merits review and does not identify any jurisdictional error. 

8. The application for review to this Court that was filed on 1 April 2015. The decision of the Tribunal was one in respect of which an extension of time is required by the applicant under s.477. That is, the application was not made within 35 days of the Migration decision. An extension of time is only granted in circumstances where there is an adequate explanation for the delay and where the application identifies a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice. There is no explanation in the present case for the failure to lodge the application within time. On that ground alone, the application for extension of time should be dismissed.

9. Further, this is a matter in which the application fails to identify any arguable jurisdictional error.  For that further reason, the application for an extension of time should be dismissed. 

10. The applicant asked for an adjournment to obtain material from Lebanon and the adjournment was opposed. The applicant also asked for an adjournment to obtain more time to respond to the first respondent's submissions. This matter was fixed for hearing with a timetable for filing of submissions and at the time of fixing the matter for hearing the applicant was informed that the Court would not be likely to grant any adjournment. The Court refused to grant any adjournment and indicated that these reasons would address that refusal. There is no utility in an adjournment if the proceedings are doomed to failure. For the reasons given in this decision this is a case in which the proceedings are clearly doomed to failure and there would be no utility in granting an adjournment which would only increase the costs of the parties and utilise limited court time.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 June 2015

CORRECTION

1. The matter number changed from SYG 989 of 2015 to SYG 898 of 2015.