ARK16 v Minister for Immigration

[2016] FCCA 1422

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARK16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1422

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Sponsored Family Visitor (subclass 679) visa – show cause hearing – whether the Tribunal misunderstood the applicant’s fear of persecution – real chance test – whether the Tribunal did not properly consider the applicant’s medical evidence – no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 r.44.12

Migration Act 1958 (Cth), s.476

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 18.

Applicant: ARK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 703 of 2016

Judgment of: Judge Street

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Mr L Leerdam
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 703 of 2016

ARK16

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 from the Tribunal made on 26 October 2015, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The applicant was found to be a citizen of Lebanon, and his claims were assessed against that country. The applicant had travelled to Australia on two occasions. The first occasion that the applicant came to Australia was on 29 May 2011 on a single entry, three month, Sponsored Family Visitor (subclass TL679) visa granted offshore on 10 May 2011. The applicant complied with the conditions and departed on 27 August 2011. 

3. The applicant travelled to Australia for a second time on 19 January 2014, on a single entry, Sponsored Family Visitor (subclass 679) visa granted offshore on 18 November 2013.

4. It was then on 5 March 2014 that the applicant applied for a protection visa.  The applicant failed to attend the interview before the delegate, and, accordingly, the delegate was unable to test the applicant’s claims for protection and make credibility findings. In the circumstances, on 4 August 2014, the delegate dismissed the applicant’s application. 

5. The applicant applied for review on 6 August 2014.  The applicant was originally invited to attend a hearing on 2 July 2015, but, due to a medical certificate, the Tribunal then sent a letter to the applicant dated 2 July 2015 inviting the applicant to appear on 8 September 2015.  The applicant appeared on that date to give evidence and present arguments, and was assisted by an interpreter, as well as being represented by his migration agent.

6. The applicant, who is a Sunni Muslim, claims to fear harm if returned to Lebanon on the basis that he could be perceived to be have an imputed political opinion of being pro-Hezbollah and a pro-Shia Muslim. The applicant’s claims related to a fear arising from a perceived political opinion and his religion.  The applicant also claimed to fear harm from the Salafists.

7. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution if he returned to Lebanon, based on his claims and his evidence to the Tribunal. 

8. The Tribunal took into account the applicant’s claims concerning him having difficulties remembering details. The Tribunal found, having considered the totality of the evidence, that it did not accept that the applicant had a well-founded fear of persecution on the basis of his fears in relation to the Salafist extremists or that he would be perceived to be pro-Hezbollah and pro-Shia.

9. The Tribunal made express reference to the applicant’s alleged difficulties in relation to the questioning process and noted that the applicant was able to provide information in his evidence about some aspects of his claims without apparent difficulty. The Tribunal did not accept that the applicant’s memory difficulties explained the applicant’s lack of credibility. 

10. The Tribunal, having considered the evidence and the applicant’s claims, did not accept that the applicant faced a real chance of serious harm on the basis of being associated with Jihad el Samal should he return to Lebanon now or in the reasonably foreseeable future. The Tribunal did not accept that the applicant’s membership of a family group that, according to the applicant, has hundreds of members, faces a real chance of serious harm on that basis, when seen in the context that a leading member of the family apparently holds pro-Hezbollah and pro-Shia opinions.

11. The Tribunal said that, having considered the applicant’s claims and totality of the evidence and the information before it, it did not accept that there is a real chance that the applicant faces serious harm on the basis of his claims should he be returned to Lebanon now or in the reasonably foreseeable future.

12. The Tribunal did not accept that the applicant was a refugee. The Tribunal found, having considered the totality of the applicant’s evidence, that it did not accept that the applicant would be at real risk of significant harm, should he return to Lebanon, on the basis of any memory difficulties or on the basis that he requires time in relation to questions.

13. The Tribunal found the applicant was not politically active and that the applicant did not have a profile that would place him at risk in Lebanon. The Tribunal found that the risk that the applicant might face in Lebanon in terms of possible harm from extremists would be a risk faced by the population generally and not faced by the applicant personally. 

14. The Tribunal did not accept that the applicant faces a real risk of significant harm on the basis of his association with Jihad el Samal, or on the basis of his membership of a wider family.  The Tribunal noted that there was no evidence to suggest or indicate that the applicant would engage in any political or other activities, if he returned to Lebanon, that would place him at risk of a real chance of serious harm, or a real risk of significant harm.  The Tribunal found that it was not satisfied there are substantial grounds for believing it is a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon that there is a real risk he would suffer significant harm.

15. On 21 April 2016, a Registrar of the Court fixed this matter for a show cause hearing and provided the applicant with an opportunity to file affidavit evidence and submissions and an amended application.  The applicant filed an affidavit annexing the transcript, as well as filing a three page submission. 

16. The grounds of the application are as follows:

    1. The Tribunal misunderstood my fear of persecution even though it had evidence that I was admitted to hospital after I was severely injured in my body and my head by a car bomb explosion in Lebanon.

    2. I will provide detailed particulars when I receive copy of my documents from the Department.

17. At the commencement of the hearing, the Court explained to the applicant that this was a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 to determine whether the applicant had an arguable case. The Court explained that an arguable case required the Court to be satisfied that there was an arguable case of legal error in respect of the Tribunal’s decision. The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant. 

18. The Court explained that, in summary, this meant the Court was deciding whether there was an arguable case that the decision had been made unlawfully or whether there was an arguable case that the decision had been made unfairly. The Court explained that, if satisfied there was an arguable case, it would fix the matter for hearing on another date, and, if not satisfied that there was an arguable case, the Court would dismiss the application. The applicant confirmed that he understood the nature of the case as explained by the Court. 

19. In relation to ground 1, there is nothing in the Tribunal’s reasons or in the transcript to support the proposition that the Tribunal misunderstood the applicant’s fears of persecution.  The transcript reveals that the Tribunal raised credit concerns with the applicant in relation to the applicant’s claims. 

20. Given the answers by the applicant in the transcript, it is understandable why the Tribunal was of the view that the applicant had given inconsistent evidence, and, in particular, inconsistent evidence about his alleged fears.

21. There is nothing in the transcript to support the proposition that the Tribunal misunderstood the applicant’s fears of persecution, and the Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims and evidence, and made findings that were open on the material before the Tribunal.

22. I am satisfied that the applicant had a genuine hearing, and there is no material before the Court to satisfy the Court that the Tribunal did not comply with its statutory obligations or that the applicant was denied procedural fairness by the Tribunal. Ground 1 fails to make out any arguable jurisdictional error.

23. I note the Tribunal expressly referred to the alleged injuries in relation to the car bomb in its reasons, as well as referring to the submissions advanced on behalf of the applicant, including the submissions advanced after the hearing. Ground 2 does not identify any arguable jurisdictional error. 

24. The applicant’s submissions are, in substance, a repetition of the applicant’s claims, and an impermissible invitation to the Court to engage in a merits review. This Court does not have power to make fresh findings of fact in relation to the applicant’s claims and evidence. 

25. The adverse findings in relation to the applicant’s credibility were open on the material before the Tribunal. Further, it is clear that the Tribunal took into account the applicant’s difficulties in relation to his memory in assessing the applicant’s credit.

26. Further, it is apparent that the Tribunal took into account the applicant’s claims in relation to Jihad el Samal. Nothing in the applicant’s written submissions identified any basis upon which there could be said to be an arguable jurisdictional error.

27. From the bar table, the applicant maintained that people were threatening him. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 18 at [24]-[25] and [59]-[60].

28. I am satisfied that the applicant fails to disclose any arguable error and that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2016