ALA15 v Minister for Immigration and Anor (No.2)

[2015] FCCA 2048

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALA15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 2048

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether unsupported claim of delay due to lack of funds acceptable – explanation for delay insufficient – whether applicant’s profile matched profile of others targeted – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477, 499

SZUQZ v Minister for Immigration and Border Protection [2015] FCCA 1552

Applicant: ALA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 994 of 2015

Judgment of: Judge Street

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Sydney

Delivered on: 29 July 2015

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Respondents:

Mr A Markus

Australian Governmental Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application for recusal is dismissed.

3. The application for extension of time is refused under s.477.

4. To the extent that leave is required to amend the application in respect of the opposed ground 4, leave is granted.

5. The Applicant pay the First Respondent’s costs fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 994 of 2015

ALA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court's jurisdiction under s.476 of the Migration Act1958 (Cth) in respect of a decision that the Tribunal made on 23 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The application filed in this Court was 14 days late and requires an extension of time under s.477. In relation to s.477, there must be a satisfactory explanation for the delay and the Court must be satisfied that there is a sufficiently arguable case that warrants an extension of time in the interests of the administration of justice.

3. Counsel for the applicant also filed a further amended application in respect of which ground 4 was opposed.  The Court indicated as a matter of convenience it would hear the application for an extension of time and the application for amendment and, insofar as the applicant was successful on the application for an extension of time, the substantive argument.  I grant leave to amend in relation to ground 4 and note that the first respondent did not allege any actual prejudice occasioned by the amendment.

4. The Court has had the benefit of a full substantive argument by Mr Williams of counsel, on the grounds identified in the further amended application which are as follows:

   Ground 1: Denial of Natural Justice and Procedural Fairness

   1. The Second Respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.

   Particulars

   a) At [32], the second respondent accepted that the applicant's relationship with his father has deteriorated to the point that he now refuses to talk to the applicant and has disowned his son. His father has stopped sending him money since 2011. Since then the applicant has been supporting himself and paying for his education expenses by working part-time.

   b) At [64], the second respondent accepted he was not a fundamentalist Muslim.

   a) At [67], the second respondent referred to country information, which 'shows that they target Shias and Shia interests, for example the bombing of the Iranian Embassy in Beirut in mid- November 2013 and car bombs in the southern suburbs of Beirut and the [X] Valley throughout 2013.

   b) At [68], the second respondent accepted that there have been incidents where Sunnis and anti-Syrian regime activists have been shot or otherwise targeted, including in [Y] Province.

   c) At [69], the second respondent accepted that there are Shia and Alawite groups that have used violence against certain Sunnis.

   d) However, at [70], the second respondent erred by observing that it 'has no country information before it that supposes a finding that the applicant would be forced to fight in Syria, or that there is a real chance that he would suffer serious harm or that there is real risk that he would suffer significant harm because of generalized violence in Lebanon.’

   e) To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord natural justice to the Applicant by the Second Respondent.

   Ground 2: Jurisdictional Error – Misapplication of law or failure to ask the correct question

   2. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant's claims, or an integer of his claims.

   Particulars

   c) At [32], the second respondent accepted that the applicant's relationship with his father has deteriorated to the point that he now refuses to talk to the applicant and has disowned his son. His father has stopped sending him money since 2011. Since then the applicant has been supporting himself and paying for his education expenses by working part-time.

   d) At [41], the second respondent observed that no written submissions or country information was provided by the representative to the Department or to the Tribunal.

   e) At [64], the second respondent accepted he was not a fundamentalist Muslim.

   f) At [67], the second respondent referred to country information, which 'shows that they target Shias and Shia interests, for example the bombing of the Iranian Embassy in Beirut in mid- November 2013 and car bombs in the southern suburbs of Beirut and the [X] Valley throughout 2013.

   g) At [68], the second respondent accepted that there have been incidents where Sunnis and anti-Syrian regime activists have been shot or otherwise targeted, including in [Y] Province.

   h) At [69], the second respondent accepted that there are Shia and Alawite groups that have used violence against certain Sunnis.

   i) However, at [70], the second respondent erred by observing that it 'has no country information before it that supports a finding that the applicant would be forced to fight in Syria, or that there is a real chance that he would suffer serious harm or that there is real risk that he would suffer significant harm because of generalized violence in Lebanon.'

   j) It follows that 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 upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.

   Ground 3: Unreasonableness

   3. The second respondent exercise power in a manner that was so unreasonable that no reasonable repository of power could have so exercised. Alternatively, the second respondent reasoned illogically or irrationally and the findings lack evident or intelligible justification.

   Particulars

   a) At [32], the second respondent accepted that the applicant's relationship with his father has deteriorated to the point that he now refuses to talk to the applicant and has disowned his son. His father has stopped sending him money since 2011. Since then the applicant has been supporting himself and paying for his education expenses by working part-time.

   b) At [64], the second respondent accepted he was not a fundamentalist Muslim.

   c) At [67], the second respondent accepted that there are Sunni extremist groups in Lebanon, including in the [Y], from where the applicant comes from.

   d) At [68], the second respondent accepted that there have been incidents where Sunnis and anti-Syrian regime activists have been shot or otherwise targeted, including in [Y] Province.

   e) At [69], the second respondent accepted that there are Shia and Alawite groups that have used violence against certain Sunnis.

   f) However, at [70], the second respondent erred by observing that it 'has no country information before it that supports a finding that the applicant would be forced to fight in Syria, or that there is a real chance that he would suffer serious harm or that there is real risk that he would suffer significant harm because of generalized violence in Lebanon.'

   Ground 4: Failure to Consider Relevant Considerations

   4. The second respondent failed to take into account relevant considerations, when exercising power.

   Particulars

   a) The Second Respondent failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958 (Cth).

   b) The Second Respondent failed to take into account the matters identified in PAM3 Refugee and Humanitarian Complementary Guidelines.

   c) The Second Respondent failed to take into account, relevantly the country information from [67]-[70] of the Decision Record.

5. The applicant's explanation for the delay was one due to a lack of funding, and there is an affidavit from the migration agent supporting a request for funds before the application would be lodged.  The applicant's affidavit did not address his financial position in any detailed way and made bald assertions as to an inability to financially fund the application and did not depose to facts as to the source of the funds that were obtained.

6. I accept the first respondent's submission that the explanation of the delay in this case is not adequate, and on that ground alone I would refuse the application for an extension of time. However, it is appropriate to take into account s.477, whether there is a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.

7. In this case I accept the submissions of the first respondent that the grounds identified in the application are, in reality, an impermissible challenge to the adverse findings of fact made by the Tribunal and are not sufficiently arguable to warrant an extension of time in the interests of the administration of justice.  The applicant arrived in Australia on 24 October 2010 and is the holder of a student visa which expired on 30 August 2013, and it was on 13 August 2013 that the applicant lodged an application for protection.

8. Before the Tribunal the applicant attended a re-scheduled hearing for 30 January 2015 at which he appeared to give evidence with the assistance of an interpreter, and the applicant was represented in those proceedings. The Tribunal identified the relevant law, including making reference to the Ministerial direction number 56 under s.499 of the Act in respect of the PAM3 Refugee and Humanitarian-Complementary Protection Guidelines.

9. The Tribunal identified that the issues in this case involve the applicant's credibility and whether independent information supported his claims.  In this regard, the Tribunal rejected the applicant's credibility and made findings that the applicant had in essence fabricated the claims involving his father.  To the extent of taking into account the independent information, it is clear that the Tribunal took into account country information, part of which is the country information as identified in paras.67 to 70 of the Tribunal’s reasons. 

10. The country information in this case was tendered before the Court and relevantly in exhibit B, which was the report dated 18 December 2013 it is apparent that the issue of profile was relevant to part of the violence identified in para.3.10 of Exhibit B.

11. The country information in Exhibit B noted that particular targets and institutions associated with Shia interests are targeted and that the DFAT assessor's low profile, non-militarised Lebanese Shias are not being targeted on the basis of their religious affiliation alone.  The same report also identified in para.4.12:

    There is no evidence to suggest ordinary Sunnis or other Lebanese are at risk from sectarian violence in [Y] province.

12. The second report, being Exhibit C dated 25 February 2014, again identified the issue of a raised profile in respect of violence, relevantly in para.3.75 of Exhibit C. 

13. Relevantly in this case the Tribunal found as follows:

    53.    The Tribunal finds on the applicant’s evidence that he has suffered no serious or significant harm from his father or anyone else because of his religion while in Lebanon or while in Australia.  His father supported him financially until around the end of his first semester study for his bachelor’s degree at the Victoria University.  At the Tribunal hearing the applicant could not remember which year that was.  However, when he applied for the protection visa on 13 August 2013, he claimed he was in his third semester of his first year of a bachelor degree in IT. He gave the year as 2011. 

    54.    The Tribunal does not accept as credible, the applicant’s claims about his dispute with his father and his consequent fear of harm if he returns to Lebanon for the following reasons.

    55.    The Tribunal finds that if the applicant’s father had threatened him with serious or significant harm, directly or indirectly, that would have been a very memorable time in the applicant’s life.  However, his evidence about what happened between him and his father and when, is vague, inconsistent and unpersuasive.

    …

    57.    At the Tribunal hearing, the applicant said that his mother convinced his father to continue sending money to him until 2012, when he had further problems with his father.  That is also inconsistent with his claims in his visa application.  He said that his father just sent him enough money to cover his living expenses.  The Tribunal finds that his father continuing to fund his living expenses in Australia but not his study, is inconsistent with the impression he sought to convey of his father as a very strict, tough individual who was inclined to use violence and could possibly kill or torture his son.  It is also inconsistent with his evidence at the hearing that his objective when he came to Australia was to study.  It is inconsistent with his claim in his application that his parents allowed him to travel to Australia on the basis that he would continue to reside with his uncle and that he return to Lebanon on completing his education. 

    58.    That he did not continue to reside with his uncle after three months in Australia, is inconsistent with his claim that that was a condition of his coming to Australia.  It is also inconsistent with his claims about his father that his funding was not cut off immediately he left his uncle’s home.

    59.    That his father opposed his studying English in Lebanon because he did not like the idea of the applicant being able to travel outside Lebanon, at he told the Tribunal, is inconsistent with his father’s paying for him to come to Australia and study for a number of years.

    60.    At the hearing, the applicant said that he applied for the protection visa in August 2013 because he did not have enough money to pay for his university course.  He also said that he stopped studying at university because his father stopped paying and it was too expensive to study.  Those claims are inconsistent with his claim in his application that he has been supporting himself, including paying his education expenses, by working part-time. 

    61.    His claims about when he stopped studying are inconsistent, as shown above. At the departmental interview he said that he had stopped studying in mid-2013, that, is just before he applied for the protection visa. This was referred to in the delegate’s decision that the applicant provided to the Tribunal. That is consistent with his statement to the Tribunal that he applied for the visa because he could not afford to pay for his course.

    62.    As mentioned in the delegate’s decision, which the applicant provided to the Tribunal, at the departmental interview, the applicant claimed that his father, family and community would kill him and that they probably will not kill him. Those claims are inconsistent.  His evidence to the Tribunal was also inconsistent and vague.  He said that if he returned to Lebanon, his father would do something to him, he does not know what, maybe kill him or send him to Syria or Iraq.

    63.    The Tribunal finds that the applicant’s claims about his father and his relationship with him were fabricated for the purpose of supporting a claim for protection in Australia.  The Tribunal does not accept that the applicant’s father is a strict fundamentalist Moslem or that he poses a real chance of serious harm or a real risk of significant harm to the applicant if the applicant returns to Lebanon.

    64.    The Tribunal accepts that the applicant is not a fundamentalist Moslem, but does not accept his claims that he drinks alcohol, goes clubbing, does not fast, and rejects Islam.  It does not accept that his father attends the mosque five times a day to pray and would impose his strict religious views on his son or that the applicant would have to resort to self-imposed restrictions on his behaviour and conform to his religion.

    65.    The Tribunal does not accept that the applicant will be ostracised by society and targeted by religious fundamentalists because of his rejection of Islam. It does not accept that he will be religiously, socially and physically excluded from life in society. It does not accept that the applicant’s father, family or community will tell him what to do, and if he does not do it, will torture him, beat him, or send someone to kill him, or make him a recluse or an outcast.  It does not accept that his father will send him to Syria or Iraq to fight.

    66.    As his claims about his father’s attitudes and their relationship were fabricated, the Tribunal does not accept the applicant’s claim that his parents expect him to marry a girl of their choosing. 

    67.    The Tribunal does accept that there are Sunni extremist groups in Lebanon, including in the [Y], from where the applicant comes. However, it does not accept that he would be targeted by them.  Country information shows that they target Shias and Shia interests, for example the bombing of the Iranian Embassy in Beirut in mid-November 2013 and car bombs in the southern suburbs of Beirut and the [X] Valley throughout 2013.  

    68.    The Tribunal accepts that there have been incidents where Sunnis and anti-Syrian regime activists have been shot or otherwise targeted, including in [Y] Province.   The Tribunal does not accept that the applicant would have a profile such as those who have had who suffered such harm. 

    69.    The Tribunal accepts that there are Shia and Alawite groups that have used violence against certain Sunnis.   However, it does not accept that the applicant has a profile of a person who has been so targeted.

    70.    The Tribunal has no country information before it that supports a finding that the applicant would be forced to fight in Syria, or that there is a real chance that he would suffer serious harm or that there is real risk that he would suffer significant harm because of generalised violence in Lebanon.  The DFAT reports do not support such claims.

    71.    For those reasons, taking into account the applicant’s claims singly or cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Lebanon.

    72.    The applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Lebanon.

    73.    For the reasons given above, the Tribunal is 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).

    74.    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

    75.    For the reasons given above, taking into account the applicant’s claims singly or cumulatively, the Tribunal does not accept that there are  substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

1. In relation to ground 1, counsel for the applicant contended that there was no evidence to support the adverse finding in para.70 and also submitted that the applicant's fear of being required to fight in Syria was a claim that was not properly addressed by the Tribunal.  Those propositions are without substance.

2. To the extent that ground 1 asserts a finding in para.32, counsel for the applicant abandoned that assertion of an acceptance of a particular finding in the first sentence, and that same concession applies to the particulars in the other grounds where the assertion of acceptance as to para.32 appears.  Notwithstanding that, counsel for the applicant maintained that ground 1 was not the subject of any evidentiary basis for the findings made.

3. It is clear that the Tribunal had before it country information identifying the significance of profile and association.  It was a matter for the Tribunal to make findings in that regard.  It is clear that the Tribunal made adverse findings in relation to the applicant's profile and there is a clear logical connection between that and the finding made by the Tribunal in para.70. 

4. To the extent it is asserted that there was a claim or integer not addressed by the Tribunal that had been articulated, that proposition is without substance.  It is clear that the adverse finding in para.70 was addressing the claim advanced in respect of the alleged fear and that the other claims concerning the applicant's father had been rejected as fabricated claims.  There is no substance in relation to ground 1.  It does identify a sufficiently arguable case.

5. Ground 2 was conceded by counsel for the applicant to be substantially the same case as raised by ground 1, albeit in essence what was advanced was that there was some failure by the Tribunal to properly exercise its jurisdiction, to be inferred either from para.41 or by reason of analysis of the paragraphs referred to in the grounds. 

6. To the extent that para.41 refers to no written submissions or country information being provided by the applicant to the Department or to the Tribunal, it was recounting a position of fact and was not in any way reversing the onus or making an assumption as to a burden of proof upon the applicant. 

7. To the extent it was said that there is a failure to have regard to the country information provided, or at least obtained by the Tribunal, it is clear that the Tribunal took that information into account in what appears in paras.67 to 70, and ground 2 fails to disclose a sufficiently arguable case of a jurisdictional error. 

8. In relation to ground 3, it cannot be said that the finding in para.70 lacks an evident and intelligible justification.  The country information and the reasoning of the Tribunal clearly support the finding being open on the material before the Tribunal.  Ground 3 does not disclose a sufficiently arguable ground of jurisdictional error.

9. In relation to ground 4, it was asserted that the decision in SZUQZ v Minister for Immigration and Border Protection [2015] FCCA 1552 supported the conclusion in this case that the Tribunal had failed to have regard to the PAM3 or failed to take into account its guidance in relation to the country information. It is clear that the case of SZUQZ is distinguishable, as in fact conceded by counsel for the applicant because in that case it was said:

   In this case they were not considered at all.

10. Nonetheless, counsel for the applicant said that there was no express provision beyond para.23 referring to the taking into account of the policy and that the words "I have done so", or words to similar effect, were required in order to prevent the inference and that the guidelines were not taken into account. 

11. Tribunal decisions are to be read as a whole and without a keen eye for error.  In light of para.23 and the reference to country information, there is no proper basis to infer that the Tribunal did not have regard to the PAM3 or did not take into account the guidelines in that regard.  There is no sufficiently arguable case in relation to ground 4.

12. In the above circumstances there is no a sufficiently arguable case to warrant an extension of time in the interests of the administration of justice.  The application for an extension of time is refused. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 5 August 2015