AOM15 v Minister for Immigration

[2015] FCCA 2064

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOM15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2064

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal considered irrelevant material – whether consideration of a previous Tribunal’s findings on credit was relevant – whether consideration of the applicant’s savings was relevant to consideration of the applicant’s fear of unemployment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), s.36(2)(a), 416, 424AA, 476

NANX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 734
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

SZNOL v Minister for Immigration and Citizenship (2012) FCA 917

Applicant: AOM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1118 of 2015

Judgment of: Judge Street

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Sydney

Delivered on: 31 July 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents:

Ms R Krishnan

Australian Government 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 is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $4470

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1118 of 2015

AOM15

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 (Cth) in respect of a decision of the Tribunal made on 26 March 2015 and affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. The applicant arrived in Australia on a student visa in October 1996. He made an earlier application for a protection visa that was unsuccessful and consistent with the principles in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, made an application for protection based upon the complementary grounds on 12 November 2013.

2. The grounds raised by the application are as follows:

   1. The Member of the Refugee Review Tribunal relied on irrelevant material and disregarded my evidence as to the previous and current claim.

   2. The Tribunal Member relied on my savings and failed to deal with the correct issue which is what would happen. to me if I return to Lebanon.

   3. The Member of the Refugee Review Tribunal overlooked the fear of persecution I will face if I am removed from Australia to Lebanon especially the employment factor and failed to take into consideration the absence from my country and that the previous employment history does not lead to a future employment as the circumstances and development of incidents in Lebanon have changed. The Tribunal relied on wrong issue and wrong evidence.

3. In support of the applicant’s case, the applicant relied upon the transcript before the Tribunal, and in particular referred to a report dated 25 February 2014.  He contended that this was old information and that the Tribunal member had not taken into account what is currently happening in Lebanon.  The applicant became an unlawful person in Australia on 15 March 1999 as a result of the decision of the first Tribunal.  The applicant disputed the adverse findings of credit by the Tribunal and asserted that they were not reasonable and also suggested that the Tribunal’s focus on the fact that he had some money was irrelevant and that his problem with credibility was due to his earlier solicitor.

4. The applicant appeared before the Tribunal on 5 March 2015 to give evidence and present arguments and was assisted by an interpreter.  The Tribunal identified the applicant’s claims in relation to a fear of harm from Shia Muslim organisations Hezbollah and Amal because of his refusal in 1996 to cooperate in criminal activity at his workplace.  The applicant also claims to fear harm on the basis that he is a Sunni Muslim and claims to fear harm of violence directed towards him on that basis.  The applicant claimed to fear harm because of imputed political opinion of being anti-Hezbollah and anti-Amal and on the basis that he is a Sunni Muslim.

5. The first respondent pointed out that part of the applicant’s fear referred to in his statement at 65 was that he had lost his employment in Lebanon and that it was in that context that the Tribunal made findings about the applicant’s financial position at para.61, which was also then the subject of evidence.  At para.19, the first respondent submitted that the Tribunal’s adverse finding on credit was clearly open on the material before it and that the Tribunal identified the inconsistent statements that had been raised with the applicant in relation to the applicant’s credit, specifically at para.38 in the Tribunal’s reasons.   It was further submitted that the adverse findings of credit could not be said to be illogical and did not lack an evident and intelligible justification.

6. The first respondent said that the issue relating to the applicant having some money was clearly relevant to the issue raised by the applicant in his claim concerning having lost his employment in relation to his fear of returning to Lebanon and could not be said to be an irrelevant consideration.  In relation to the concern raised by the applicant that the credibility findings were due to the conduct of his solicitor, the first respondent noted that this was a matter that had been raised by the Tribunal and was subject of an express finding rejecting that criticism at para.51.  The first respondent submitted that there is no jurisdictional error raised by the matters advanced by the applicant in respect of the finding of credit or taking into account an irrelevant consideration or in relation to the role of his solicitor. 

7. I accept the first respondent’s submissions in that regard and I find that there is no jurisdictional error in relation to the adverse findings of credit and that the Tribunal did not take into account an irrelevant consideration by taking into account the savings of the applicant given his reference to his concern having lost his employment in Lebanon.  The Tribunal properly took into account in relation to those adverse credit findings the contention by the applicant that inconsistencies were due to the solicitor.  It was open to the Tribunal to reject that contention.

8. In relation to ground 1 of the application, the first respondent has submitted that the unparticularised irrelevant considerations failed to make out any jurisdictional error and that it was clear that the Tribunal had had regard to the applicant’s evidence.  I accept those submissions.  There is no jurisdictional error disclosed by ground 1. 

9. In relation to ground 2, the reasons earlier advanced (the savings of the applicant) were clearly a matter relevant to the applicant’s fear of having lost his employment in Lebanon.  It is clear that the Tribunal properly considered the applicant’s claims to fear of persecution.  As identified above, there is no substance and no jurisdictional error in ground 2.

10. In relation to ground 3 and the proposition that the Tribunal overlooked the applicant’s fear of persecution, there is no substance in this proposition.  It is clear the Tribunal took into account the applicant’s employment and the claims advanced by the applicant.  Ground 3 fails to make out any jurisdictional error.

11. The Court raised with the first respondent the reference in para.38 of the Tribunal’s decision inconsistencies in the applicant’s evidence raised with the applicant during the hearing by the Tribunal about his evidence that had been referred to in the Tribunal decision of May, 1998, identified in para.38, which is as follows: 

    38. The Tribunal referred to a number of examples of its concerns about the applicant’s credibility and the inconsistency in relation to his claims. The Tribunal referred to the applicant’s evidence and claims in his first statement in support of his first protection visa application that he had been invited to join Hezbollah but that claim had not been repeated in his statement in support of his second protection visa application. The Tribunal referred to the applicant’s first statement that he had left the building site without telling anyone about the approach that had been made to him and his subsequent evidence and second statement about that event. The Tribunal also referred to variations in his evidence that had been raised with the applicant during the hearing about his evidence that had been referred to in the Tribunal decision of May 1998. Those aspects have been referred to elsewhere in these reasons. The variations and inconsistencies also included the applicant’s claims at different times that the two men who had approached him had worn uniforms and that is how he knew that they belonged to Hezbollah and Amal. The applicant’s evidence about that aspect had varied at different times in relation to his two protection visa claims. The applicant also told the Tribunal that he had only been threatened on one occasion by the men and was unable to explain the reference in the Tribunal’s reasons from May 1998 that he had received two subsequent threats and had been told to report for meetings. The Tribunal also referred to the applicant’s claim in his first statement in support of his first protection visa application that he had been followed after he had left the building site and before he came to Australia. As indicated at various times during the Tribunal hearing the applicant had blamed his first solicitor/ agent for many of the variations in his claims in his statements. The Tribunal noted in responding to the applicant on this aspect that a number of the inconsistencies were as a result of evidence that he had provided during the course of the first Tribunal hearing and are referred to in the Tribunal’s reasons of May 1998 and those inconsistencies arose out of his evidence before the Tribunal on that occasion.

12. The first respondent submitted that the inconsistencies there referred to in para.38 by the Tribunal were inconsistencies in the statements and that the Tribunal was referring to the applicant’s evidence.  In para.42, the Tribunal said: 

    42. Pursuant to s.424AA of the Act the Tribunal raised information which would be the reason or part of the reason for affirming the decision under review with the applicant. That information was in his first statement in support of his first protection visa application and in the Tribunal’s record of decision from May 1998 and in relation to information contained in the delegate’s record of decision in relation to his second protection visa application. The Tribunal told the applicant that the information was relevant to the Tribunal’s assessment of his claims as well as relevant in terms of the Tribunal assessing the applicant’s credibility in relation to his evidence and his claims. The information was that he had referred in his first statement to having been offered to join Hezbollah and that had been referred to in the Tribunal decision of May 1998 but was not repeated in the applicant’s second statement in support of his current protection visa application. The Tribunal also referred to the claims and information from the applicant in his first statement and referred to in the Tribunal’s reasons of May 1998 about whether he told the engineer at the building site about the claimed approach by the two men and what the applicant did as a result. The Tribunal also referred to other variations and inconsistencies and information contained in the applicant’s first statement and to issues and information referred to in the Tribunal’s 1998 record of decision and variations with his evidence to the Tribunal on this occasion. Those aspects and information have been referred to elsewhere in these reasons. The Tribunal also referred to the delegate’s record of decision and the reference to the applicant’s evidence before the Tribunal and referred to in the 1998 record of decision of the Tribunal.

13. The third sentence in para.42 says “the Tribunal told the applicant that the information was relevant to the Tribunal’s assessment of his claims as well as relevant in terms of the Tribunal assessing the applicant’s credibility in relation to his evidence and claims.”

14. In the transcript, at page 77, the member said as follows:  

    Member: No that's alright. l have one more thing that I wish to raise with you. Now that is in relation to a particular issue under the Migration Act and that is under Section 424AA of the Migration Act. So I would like you to listen very carefully to what I say to you. This is in relation to information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review and it is relevant to your claims and the review because the information that I want to raise with you relates to your claims and also to my and the Tribunal's assessment of your credibility about your claims. And that information is this, please listen carefully. The variations and inconsistencies between your two statements provided in support of your applications and also in relation to the inconsistencies in terms of your evidence before the Tribunal and the information contained in the previous Tribunal decision, being the one of May, 12 May 1998. So I wanted to draw your attention to those issues.

    lnt/Applicant: The solicitor, nobody told me about these things at all.

    Member: I have also referred to that information contained in the Delegate's decision in relation to certain financial matters that I asked you about but in relation to the variations between the two statements that you have provided in support of your two applications for review there are inconsistencies between the statements and also between the evidence that you have given today to the Tribunal.

    lnt/Applicant: Regarding the money you mean?

    Member: No, no in terms of the two statements about your claims as to what you said occurred in relation to the circumstances surrounding the approach by the two men and everything associated with that, they are the issues that I have taken you to during the course of the hearing. The only issue about the Delegate's report was in relation to financial situation which I sought clarification about. And the Delegate's report refers as well to issues also about your claims in relation to those circumstances surrounding your dealings with the bank and the two men. Now as I have said there are inconsistencies between the two statements and the earlier Tribunal decision. Now would you like to comment or respond to that information?

    lnt/Applicant: My response is thank you very much and I will tell you that the mistake that came from me it is because I no longer remember what happened and also on top of that the solicitor Sam Issa he is the one who confused and stuffed up everything and I wish that you would regard my application from a compassionate point of view.

15. The first respondent accepted that what was said by the member in relation to s.424AA did not meet the requirement of giving clear particulars insofar as a reference was made to “the Tribunal’s assessment of your credibility about your claims.” The first respondent submitted that the assessment of credibility was not a matter that fell within s.424AA, and I accept that submission.

16. Nonetheless, the Court raised with the first respondent the question of whether the Tribunal had failed to properly conduct its review by taking into account the adverse credit findings by the first Tribunal, and thereby preventing or constraining itself from its obligation of review in respect of the application before it.  In this regard, the Tribunal said at page 55 in the hearing before the Tribunal:

    Member: Now you see the last Tribunal decision as well the Tribunal did not accept that you were telling the truth.

    lnt/Applicant: They didn't accept it?

    Member: No, no one has ever drawn this to your attention either. Has anyone explained this decision to you?

    lnt/Applicant: No, honest to God no.

    Member: Well as I say the Tribunal on that occasion did not accept that you were telling the truth.

    lnt/Applicant: Thank you very much for all you do. I abide by the order of the government what could I do. My heart is pure and I told you what I have.

17. The first respondent submitted that the Tribunal was entitled to have regard to the earlier decision, including the findings made as a result of issues of credibility, pursuant to s.416 of the Migration Act.  It is clear from the decision of Emmett J in SZNOL v Minister for Immigration and Citizenship (2012) FCA 917 that s.416 permits the Tribunal to have regard and to take as correct an earlier finding and unless persuaded that the relevant finding was affected by an error of law or fact or some other flawed reasoning process to depart from the same. I also take into account what was said by Gyles J in NANX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 734 that an overreliance on previous findings of fact by the deciding Tribunal may amount to taking into account irrelevant considerations, and I take into account in that regard what was said by Judge Manousaridis in SZKOX & Anor v Minister for Immigration & Anor [2015] FCCA 789 at [18] to [19].

18. Accordingly, it is necessary to assess the manner in which the Tribunal has used s.416 and had regard to the decision of the earlier Tribunal. In addition to the reference already identified in paras.38 and 42 above, the Tribunal referred to the earlier Tribunal’s reasons in para.49 as follows:

    49. The Tribunal has considered the applicant’s evidence and his claims. The Tribunal has referred elsewhere in these reasons to a number of inconsistencies in relation to the applicant’s evidence before the Tribunal about his claims. The applicant’s evidence has been considered in the context of previous evidence provided to the Tribunal and referred to in the May 1998 reasons of the Tribunal as well as to the applicant’s statement in support of his first protection visa application setting out his claims on that occasion. The Tribunal has also considered the applicant’s second statement in support of his second protection visa application setting out his claims in relation to his second protection visa application. The Tribunal has also referred to the applicant’s inability on occasions to provide clear details in relation to his claims. Those issues have been referred to elsewhere in these reasons. The Tribunal has considered the applicant’s claims that his first solicitor created confusion regarding his claims arising out of his first protection visa application. The Tribunal has also considered the applicant’s claims that he gets confused about his claims because of the passage of time and is anxious and worried about his parents and he has sleeping problems. The applicant told the Tribunal that he was not receiving medication in relation to any medical conditions. The Tribunal notes the evidence of the applicant that is referred to in the Tribunal’s May 1998 reasons in relation to the applicant’s first protection visa application. That evidence has been referred to elsewhere in these reasons.

19. The first respondent submitted that on a fair reading of the Tribunal’s reasons as a whole he was clear that the Tribunal was referring to the evidence of the applicant given and referred to in the earlier Tribunal’s reasons and that the Tribunal was not engaging in an overreliance upon the previous findings, but engaged in its own fresh evaluation of the applicant’s credibility and properly discharging its obligation to review the application before it, and that the Tribunal did not conduct the review in a manner that prevented or constrained it from considering all of the applicant’s evidence and submissions consistent with its obligation to review.

1. The first respondent submitted that the Tribunal had identified in some detail the claims in evidence of the applicant, and, in particular, the incidents that he asserted occurred prior to his departed from Lebanon, and that, relevantly, the Tribunal made an independent assessment of the applicant’s credit as identified in paras.51 and 52 as follows:

   51. The Tribunal does not consider the inconsistencies in the applicant’s evidence in relation to his claims in relation to the 1996 incident and his on occasions vague evidence in relation to details about those claims as minor issues. The Tribunal also does not find some aspects of the applicant’s claims to be credible. The Tribunal is not satisfied that the applicant’s inconsistent and on occasions vague evidence about the 1996 incident is caused by anxiety or by the passage of time. The inconsistencies referred to elsewhere in these reasons are significant in that there are variations in relation to the applicant’s claims and evidence on occasions as to both the threats that were made to him by the two men or others acting on the men’s behalf. There are variations and inconsistencies as to the applicant’s claims and evidence as to how he knew these two men were from Hezbollah and Amal. There are inconsistencies in the applicant’s evidence and claims on ocasions as to what he did after he claimed he was approached by these two men and asked to assist them in installing cameras in the bank. There are overall inconsistencies in relation to the applicant’s evidence and claims as to any threats he received after he left the employment at the bank and for the three months that he remained in Lebanon before he came to Australia. Those issues are referred to elsewhere in these reasons. Those inconsistencies, in the Tribunal’s view, are not explained by the applicant’s claims that his former solicitor created confusion in relation to his first protection visa application. The Tribunal after having considered all the issues is not satisfied that the applicant is a credible witness.

   52. The Tribunal is also not satisfied of the credibility of the applicant’s claims that he was approached by two men who were members of Hezbollah and Amal and asked to assist them in installing cameras in the bank. The applicant, on the basis of his evidence to the Tribunal was never a member or supporter of Hezbollah or Amal. On the basis of the evidence before the Tribunal he was not a friend of the two men. The applicant told the Tribunal that he was not politically active in Lebanon. The applicant claimed that this approach by these two men was the way these organisations operated. In all the circumstances and having regard to the issues referred to by the Tribunal it is unable to accept the applicant’s claims surrounding this incident. In all the circumstances the applicant’s claims and evidence about this incident do not seem credible. On the basis of the evidence before the Tribunal he is a Sunni Muslim and the country information contained in the DFAT country report for Lebanon indicates those two organisations are associated with Shia Muslims. The Tribunal’s assessment of the applicant’s claims and evidence about the approach by the two men together with the Tribunal’s assessment of the applicant's credibility causes the Tribunal to not be satisfied as to the applicant’s claims that he was approached by two men in 1996 and asked to assist to install cameras in the bank. The Tribunal does not accept the applicant’s claims that he was approached by these men and that they were from Hezbollah and Amal. The Tribunal does not accept the applicant’s claims that he was threatened on that occasion because he would not assist.

2. I accept the first respondent’s submission that on a fair reading of the Tribunal’s decision as a whole, the Tribunal has independently assessed the applicant’s credibility consistent with its obligation to review the application before it. I find that the Tribunal did not utilise s.416 in the decision of the earlier Tribunal in a manner that prevented it or constrained it from considering all the evidence and submissions that were before it. I find that the Tribunal and properly conducted the review. I find that the Tribunal did not over rely upon s.416 and that there was no breach of s.424AA.

3. It was in these circumstances that the Tribunal found:

   59. The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon that he faces a real risk of significant harm. The Tribunal for the reasons already considered and discussed is not satisfied that the applicant faces a real risk of significant harm based on his claims. The Tribunal is not satisfied, on its assessment of the evidence and the information referred to in these reasons, that the applicant faces a real risk of significant harm from Hezbollah or Amal or on the basis of the practice of his Sunni religion. The applicant claims to also fear harm on the basis of the Syrian conflict. This is based on his claim that Hezbollah supports the Assad Regime in Syria and that Hezbollah is opposed to Sunni Muslims in Lebanon providing assistance to Syrian refugees and to Syrian people who are fleeing the conflict. The Tribunal has considered the applicant’s claims and available information and the evidence before the Tribunal and is not satisfied in those circumstances that the applicant faces a real risk of significant harm on the basis of this claim.

   60. The Tribunal has considered the applicant's claims in terms of s.36 (2A) of the Act as well as the relevant definitions contained in s.5(1) of the Act. The Tribunal is not satisfied that the applicant should he be returned from Australia to Lebanon faces a real risk of significant harm. The Tribunal has considered the applicant's claims in terms of s.36(2)(aa) of the Act. The Tribunal is 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 that there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, intentionally inflicted on the person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature such as that would meet the definition of cruel and inhuman treatment or punishment in s. 5(1) of the Act. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.

   61. The Tribunal has considered the applicant's claims that he would be unable to find employment if he returned to Lebanon. The Tribunal has had regard to the evidence before it regarding the applicant's previous employment history and the fact that he was able to find employment while in Lebanon previously and that he worked for a significant period of time in Beirut. The evidence before the Tribunal is that the applicant has significant experience in rendering and plastering work as well as in painting work. The applicant has also provided evidence of his significant savings and that evidence indicates that his current savings well exceeds the average per capita gross national income in Lebanon which is referred to in the DFAT country report of February 2014 as being in 2012 as $10,000 (US). The Tribunal accepts that the influx of Syrian refugees into Lebanon has created employment difficulties but having regard to the applicant's employment background together with his savings and his acquired skills and his willingness to work in Beirut on previous occasions the Tribunal is not satisfied that the applicant faces a real risk of significant harm on the basis of his employment prospects should he return from Australia to Lebanon

   62. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty if he returns from Australia to Lebanon.

4. It was in these circumstances the Tribunal concluded that the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant did not satisfy the criteria under s.36(2)(aa) or s.36(2)(a). For these reasons, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 5 August 2015