ALP16 v Minister for Immigration

[2016] FCCA 1390

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALP16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1390

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) Visa – whether the Tribunal considered the applicant’s claims cumulatively – whether the Tribunal failed to apply the relevant law – whether the Tribunal asked itself the wrong question – whether the Tribunal’s credit findings were illogical – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 476, 477.

Cases cited:

Spencer v Commonwealth of Australia [2010] HCA 28

Applicant: ALP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 459 of 2016

Judgment of: Judge Street

Hearing date: 8 June 2016

Date of Last Submission: 8 June 2016

Delivered at: Sydney

Delivered on: 8 June 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Westside Legal

Solicitors for the First Respondent: Mr A Markus
Australian Government Solicitors

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 1958 (Cth) is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 459 of 2016

ALP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 11 November 2014 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The application to this Court requires an extension of time under s.477 given the decision of the Tribunal on 11 November 2014 and the filing of the application in this Court on 2 March 2016.

2. The issues in relation to s.477 are first whether there is a satisfactory explanation for the delay and, secondly, whether an extension of time is warranted in the interests of the administration of justice, taking into account the merits of the application. The applicant entered Australia on 2 March 2013 holding a valid subclass TR676 visitor visa which had been granted on 27 February 2013 and it was on 10 May 2013 that the applicant made an application for protection.

3. In substance, the applicant claimed to fear harm if returned to Lebanon from the Salafis and other fundamentalists as a Christian policeman and by reason of being imputed with supporting the Assad regime in Syria and having being imprisoned for his failure to return to work as a policeman in Roumieh Prison, which is infamous for being populated with fundamentalists and extremists who would target and kill the applicant.  

4. The delegate rejected the applicant’s application on 11 March 2014.  The applicant applied for review on 30 March 2014 and was invited by 11 September 2014 to appear before the Tribunal on 29 October 2014.  The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent.  The Tribunal made adverse credit findings in relation to the applicant.  The Tribunal found the applicant not to be a credible and truthful witness. 

5. In making that finding, the Tribunal took into account a number of the inconsistencies in the applicant’s evidence as well as the summarised reasons in which the Tribunal explained inconsistencies in relation to what was put by the applicant compared to what had been said at the interview in respect of which the Tribunal complied with s.424AA of the Migration Act 1958. 

6. The Tribunal identified the applicant’s explanation as unsatisfactory and the Tribunal found in that regard the applicant’s evidence regarding the consequence of his failure to return to work to be a fabrication that is designed to achieve an immigration outcome.  The Tribunal did not accept the applicant had been issued with a notice that he would be arrested and detained.  The Tribunal did not accept that the applicant would face arrest, detention or any other form of harm as a result of leaving work in Lebanon. 

7. The Tribunal did not accept that the applicant’s former employer, the ISF had any adverse interest in the applicant or that he would be subject to any serious or significant harm upon his return. The Tribunal referred to the applicant’s inconsistent evidence in relation to significant incidents. The Tribunal identified other inconsistencies in the applicant’s evidence which the Tribunal said casts serious doubt on the veracity of his claims and the truth of his evidence. 

8. The Tribunal also said that it considered the applicant has significantly exaggerated his role and responsibilities as a police officer in order to strengthen his claims.  The Tribunal referred to other inconsistent and unconvincing evidence in relation to alleged threatening phone calls and the Tribunal found that the applicant’s evidence in this regard was not accepted and was of the view that the applicant had manufactured these claims. 

9. The Tribunal rejected the claim that the applicant had ever been subject to threats and noted that the applicant did not claim to have suffered any other harm.  The Tribunal found it was not satisfied the applicant would encounter verbal abuse as a uniformed police officer in Lebanon because the applicant was no longer employed as a policeman.  The Tribunal considered even if, which it did not accept, the applicant might face some verbal abuse because of his past employment, the Tribunal was not satisfied that treatment amounted to serious harm for a Convention reason and the Tribunal also found that it was satisfied that that treatment could not be characterised as significant harm. 

10. The Tribunal referred to the applicant encountering abuse in relation to his faith as a Christian and found that it was not satisfied that that treatment amounted to serious harm for a Convention reason nor was the Tribunal satisfied that the treatment could be characterised as significant harm.  The Tribunal referred to the country information in relation to Christians in Lebanon and found that it was not satisfied the applicant faces a real chance of persecution for the reason of his religion and the Tribunal found it was not satisfied the applicant faced a real risk of harm arising from his religion. 

11. The Tribunal referred to the security situation in Lebanon and found that it did not accept there is a real chance the applicant would be subject to serious harm or significant harm as a result of any bombing or violence including violence aimed at ministers, politicians, state guests and local or foreign dignitaries.  The Tribunal referred to Lebanon currently experiencing instability in sectarian violence and then identified, having considered all the applicant’s circumstances, the Tribunal was not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason in that country. 

12. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.  The Tribunal found that there were not substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk he will suffer significant harm.  The grounds of the application are as follows:

    1. Please find the attached affidavit by Pathmanathan Rama dated 2 March 2016 and May 2016.

    2. The delay is not that excessive in all circumstances and readily explainable.

    3. The Applicant would be denied of right to subsist were the Applicant denied the right to pursue his application and return to his country of nationality. The application is on merit.

    4. There is no prejudice to any party including the respondents.

    5. In all circumstances that it is in the interests of justice that the time for filing be extended.

13. In relation to ground one, Mr Kumar sought to argue that the Tribunal had not considered the applicant’s claims cumulatively. 

14. I reject that submission.  On a fair reading of the Tribunal’s decision as a whole, it is apparent the Tribunal considered the applicant’s claim cumulatively.  Indeed the reference to the Tribunal having considered all the applicant’s circumstances is consistent with the Tribunal having done so.  To the extent that it was suggested that the Tribunal asked the wrong question in considering the Convention nexus, it is apparent that the Tribunal made findings of fact that were open to the Tribunal on material before the Tribunal and then proceeded to apply the correct legal tests in relation to first the Convention and then complementary protection. 

15. There is no substance in the proposition that the Tribunal asked the incorrect test or asked the wrong question.  The Tribunal identified the relevant law in paras.14-17 of its decision and there is no substance in the proposition that the Tribunal misdirected itself.  It is apparent that the Tribunal took into account the applicant’s claim to fear harm by reason of him being a policeman.  It is apparent that the applicant was no longer a policeman and the Tribunal expressly made adverse findings in relation to that claim. 

16. The Tribunal also specifically addressed the applicant’s claim of fear of harm in relation to his religion of being a Christian.  There is no failure by the Tribunal to address the applicant’s claims.  Ground 1 fails to make out any arguable jurisdictional error. 

17. In relation to ground 2, for the reasons identified above, it is clear that the Tribunal applied the correct test.  The applicant articulated no express claim as to a fear of sectarian violence, however, it is clear that the Tribunal did consider the current situation in Lebanon and made findings in that regard that were open to it. 

18. The Tribunal expressly considered the instability and sectarian violence in Lebanon and made adverse findings in relation to the applicant not having a well-founded fear of persecution as well as an adverse finding in relation to complementary protection.  Ground 2 is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal.  Ground 2 does not identify any arguable jurisdictional error. 

19. In relation to ground 3, Mr Kumar of counsel sought to argue that the credit findings were not logical.  The Tribunal identified inconsistencies in the applicant’s evidence and the adverse credit findings cannot be said to lack an evident and intelligible justification.  There is no arguable jurisdictional error disclosed by ground 3.

20. The Court takes into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28 at paras.[24]-[25] and [59]-[60]. The Court finds that the grounds identified in the application lacks sufficient merit to warrant an extension of time in the interests of the administration of justice. For these reasons, the application for an extension of time is dismissed

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016