Awm16 v Minister for Immigration

[2017] FCCA 1590

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWM16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1590

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error by impeding or thwarting the applicant giving evidence before it and in not giving information for the purposes of s.424A or s.424AA of the Migration Act – Tribunal’s warning that the applicant did not have to give evidence of discussions with his solicitor did not impede or thwart the applicant giving evidence and Tribunal did not breach s.424A or s.424AA – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 424A, 425

Cases cited:

MYZER v Minister for Immigration [2010] FCA 522
SZHWY v Minister for Immigration (2007) 159 FCR 1
SZMDS v Minister for Immigration (2009) 107 ALD 361
SZNQR v Minister for Immigration [2010] FCA 152
SZTGV v Minister for Immigration (2015) 229 FCR 90
SZTNL v Minister for Immigration [2015] 463

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

Applicant: AWM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 910 of 2016

Judgment of: Judge Dowdy

Hearing date: 16 September 2016

Delivered at: Sydney

Delivered on: 13 July 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco of Counsel

Solicitors for the Applicant: Shelly Legal

Counsel for the Respondents: Ms L Buchanan

Solicitors for the Respondents: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 15 April 2016 and the Amended Application filed on 9 September 2016 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 910 of 2016

AWM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Lebanon aged 48 years, having been born on 15 May 1969.

2. By Amended Application filed in this Court on 9 September 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 8 March 2016 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 12 September 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa). 

3. The Applicant applied for a Protection visa on 11 February 2014, having arrived in Australia on 27 January 2014 as the holder of a Visitor (Class FA) (Subclass 600) visa which was in effect until 27 March 2014.

4. He had previously travelled to Australia as a visitor in 2007.

Claims for Protection

1. The Applicant’s claims for protection were based on his political beliefs and religion and the fear of suffering significant harm, namely torture, cruel inhuman treatment or degrading treatment or punishment if he returned to Lebanon.

2. The Applicant claimed to be a retired officer of the Lebanese Armed Forces (LAF), having been born in Labwe in Lebanon and being married and having two dependent daughters with his wife and children living in Baabda, a suburb in Beirut, near the LAF Ministry of Defence.

3. He claimed that as a Shiite he would face persecution and significant harm and be a target of Sunni radicals against whom the Lebanese authorities could not protect him and he would be a particularly vulnerable target of these radicals and liable to suicide attacks on the basis that he was a Shiite and former high ranking officer of the LAF.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958 (Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Applicant’s Claimed Military Rank in LAF

1. At the hearing in this Court many of the submissions and much of the argument related to the issue of the military ranks the Applicant claimed to have been in the LAF before he retired after 24 years of military service in 2013.

2. It is convenient to record my findings in that regard at this point.

3. In sections 39 and 41 of his Protection visa application form (Protection visa application) the Applicant claimed to have been a Lieutenant in the LAF from September 1989 to May 2013.

4. In his Statutory Declaration declared on 7 February 2014 (and forming part of his Protection visa application) (Statutory Declaration) he claimed in paragraphs 10 and 18 to have held the rank of Lieutenant in the LAF. In paragraph 17 he stated that he had held the position of Lieutenant “Between the period September 1989 until May 2013”. In paragraphs 24 and 26 he claimed respectively to have been a “a long standing former officer in the LAF” and “a former high ranking officer in the LAF”.

5. The Protection visa application was lodged by the Applicant’s then solicitor and registered migration agent.

6. I note at this point that I also find that the Applicant, at the interview with the Delegate on 4 August 2014, claimed in his own language of Arabic that he had attained and been promoted to the rank of Lieutenant in the LAF: see [34] below.

Decision of Delegate

1. As noted above, the Applicant attended an interview with the Delegate on 4 August 2014.

2. In his Decision Record the Delegate noted that the Applicant claimed in his written claims to have been “a Lebanese military officer” and “a Lieutenant in the Lebanese Armed Forces from September 1989 until May 2013” and that as a Shiite and a former member of the LAF from Labwe he feared being targeted by Sunni radicals who are kidnapping and executing Shiites and that Lebanese authorities were not able to protect him.

3. In the result the Delegate was not satisfied that the Applicant faced a risk of targeted harm from Sunni extremist groups for reasons of his Shia religion or his previous employment with the LAF or that Shia Muslims in Lebanon are likely to be targeted generally for violence because of their religion.

4. The Delegate therefore rejected the Applicant’s claims under the Refugee Convention Criterion provided for in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act). Further, the Delegate was not satisfied that the Applicant faced a real risk of being subject to significant harm if he returned to Lebanon and rejected the Applicant’s claims under the complementary protection criterion provided for by s.36(2)(aa) of the Act.

Decision of Tribunal

1. The Applicant applied to the Tribunal on 7 October 2014 for review of the Delegate’s decision.

2. On 8 January 2016 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of his new migration agent, who made oral submissions to the Tribunal, and an interpreter in the Arabic (Lebanese) and English languages.

3. The Tribunal in its Decision Record at [5]-[11] set out the Applicant’s various claims and evidence in considerable detail and recorded that in assessing the Applicant’s claims to fear harm in Lebanon it had considered the Applicant’s oral and written evidence provided to the Department.

4. The Tribunal accepted that the Applicant was a national of Lebanon.

5. At [16] of its Decision Record the Tribunal recorded that it did not find the Applicant to be a credible, truthful or reliable witness in relation to matters central to, and related to, many of his claims and it then proceeded to set out those concerns. It had concerns about what it described as his changing, inconsistent and not credible evidence as to past events.

6. The Tribunal was concerned in particular about five issues:

   a)The Applicant’s claims to have held the rank of Lieutenant in the LAF: [17] - [24];

   b)The Applicant’s inconsistent and changing evidence in relation to the military insignias matching his claimed rank in the LAF: [25] - [28];

   c)The Applicant’s evasive evidence when asked why he would face harm if he returned to Lebanon: [29] - [32];

   d)The Applicant’s inconsistent and changing evidence about many aspects of his life and background in Lebanon: [33] - [39]; and

   e)The Applicant’s evidence in relation to his Lebanese personal identity card allegedly dated 5 February 2014: [40] - [41].

7. After considering certain other matters at [43] - [50] of its Decision record, the Tribunal at [51] stated:

   51.Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility on these matters lead it to find that he is not a truthful, reliable or credible witness and that the account of events on which his protection claims are based is false.

8. The Tribunal then proceeded to find that the Applicant was born in Lebanon and that his wife and family still lived in the family home in Lebanon and that if he returned to Lebanon he would live with his wife and children in the family home.

9. However, the Tribunal did not accept that the Applicant was in the LAF or that he was of interest to anyone for having been in the LAF, nor that he was involved in combat with terrorist groups and rejected all his claims dependent upon his claimed association with the LAF. At [70] it found on the basis of country information that, even if it had accepted that the Applicant had been a former military officer, he would not have faced a real chance or a real risk of being targeted for this reason alone or in combination with other reasons.

10. At [71] of its Decision Record the Tribunal found that there was no basis for the Applicant’s claims to fear serious harm or significant harm.

11. Accordingly, the Tribunal was not satisfied that Australia owed protection obligations to the Applicant under the Refugees Convention criterion provided for in s.36(2)(a) of the Act or the complementary protection criterion provided for in s.36(2)(aa) and it affirmed the Delegate’s decision not to grant the Applicant a Protection visa.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicant in his Amended Application were as follows:

   1. That the Tribunal breached section 425 of the Migration Act 1958 (Cth).

   Particulars

   1. The Applicant was denied the opportunity at paragraph [10] of the decision of leading evidence and presenting arguments relating to a dispute with his former Migration Agent as a possible explanation for the inconsistencies in his evidence.

   2. That the Tribunal breached section 424AA of the Migration Act 1958 (Cth).

   Particulars

   2. The Tribunal failed to apply the procedures mandated under section 424AA(1)(b) of the Migration Act with respect an information provided by the Applicant’s then Migration Agent to the Department of Immigration stating that he was a lieutenant in the army which was information the Tribunal gave to the Applicant exercising its discretion under section 424AA(1)(a) thus enlivening the mandatory obligations

Consideration

Ground 1

1. In [10] of its Decision Record the Tribunal stated in part as follows:

   10.On a number of occasions, the applicant started to tell the Tribunal what his previous solicitor, who he complained about, had told him. The Tribunal explained to the applicant that he did not have to tell the Tribunal anything he had discussed with his previous solicitor, referring to the concept of privilege, and waiver. The Tribunal suggested that he should first discuss any such evidence with his current agent…

2. In his Written Submissions Mr Bodisco of Counsel, who appeared for the Applicant, indicated that Ground 1 turned on the proposition that the Applicant was thwarted or diverted from giving evidence and presenting argument on matters relating to his credibility at the Tribunal hearing. Mr Bodisco asserted that, to the contrary of what the Tribunal had said at [10] of its Decision Record, at no point in the hearing did the Tribunal suggest that the Applicant should first discuss with his current migration agent, who was at the Tribunal hearing, anything the Applicant had discussed with his former solicitor and migration agent.

3. In my view Ground 1 fails. The transcript of the hearing before the Tribunal (transcript) establishes that early in the hearing the Applicant told the Tribunal that when he left the LAF he had attained the rank of First Staff Warrant Officer, which was a non-commissioned role. The Tribunal member then pointed out that the Applicant had previously said that he was a Lieutenant. The following exchange occurred at pages 30 - 31:

   Tribunalmember:      You're telling me you left the army when you were a first staff warrant officer and I'm saying I understand that is a non-commissioned officer role. Is that correct?

   AWM16:Yes correct.

   Tribunalmember:    So that's why I'm concerned because previously you said you were a lieutenant.

   AWM16:It wasn't me. It was told to me by the solicitor who said in English, I told him in Arabic and that's what he said in English.

   Tribunalmember:      Any conversations you have with a solicitor ... Are you saying solicitor or agent?

   AWM16:Solicitor called (unintelligible).

   Tribunalmember:     Any conversations you have with a solicitor are privileged.

   Tribunalmember:     You don't have to reveal to me anything you discuss with your solicitor.

   AWM16:I'm just trying to clarify this point about why it's written as lieutenant in the application when I wasn't.

   Tribunalmember:    So you were never a lieutenant?

   AWM16:No never.

   AWM16:I gave him a copy of my military card.

   Tribunalmember:    In your statement it says you were a high ranking officer but actually according to what you told me, you weren't an officer.

   AWM16:I didn't write that.

   AWM16:The first solicitor is the one who did fill in the form.

   (emphasis added)

4. The effect of the above exchange was that the Applicant was seeking to complain and cast the blame for any inappropriate reference to him having been a Lieutenant upon his former solicitor and migration agent, as recognised by the Tribunal in [10] of its Decision Record as extracted above at [31]. However, any force in this complaint was nullified later in the Tribunal hearing when the relevant section of the tape which recorded the Applicant’s interview with the Delegate on 4 August 2014 was played. The context for the request of the playing of the tape was that the agent was asserting to the Tribunal on the Applicant’s instructions that the Applicant, at the interview with the Delegate, had only used the correct Arabic title of his last military rank in the LAF, which on his evidence earlier at the Tribunal hearing was First Staff Warrant Officer. However, contrary to this assertion the playing of the tape revealed that the Applicant himself had told the Delegate in Arabic that he was promoted to Lieutenant in the LAF because he studied electronics at University for two years. This matter is dealt with at [20] - [23] of the Decision Record and pages 65 - 67 of the transcript.

5. The Tribunal member, in telling the Applicant and his new migration agent that conversations with his former solicitor were privileged, and that the Applicant did not have to reveal to the Tribunal member anything he had previously discussed with his former solicitor, was complying with the requirement of the Full Court of the Federal Court comprised of Lander, Graham and Rares JJ in SZHWY v Minister for Immigration (2007) 159 FCR 1 (SZHWY), that the Tribunal is under an obligation to advise applicants at a hearing before it that they are entitled to refuse to answer questions or give evidence which would disclose the contents of a confidential communication with the applicant’s lawyer for the purpose of obtaining or giving legal advice or assistance.

6. From pages 31 - 36 of the transcript further evidence was given by the Applicant to the Tribunal member about his role in the LAF. Then at pages 36 - 37 the following exchange occurred:

   AWM16:Nobody asked me to give translations because the first solicitor told me he will do translation.

   Tribunalmember:         You don't have to tell me anything your first solicitor discussed with you.

   Tribunalmember:     And I suggest you don't tell me anything and if there's anything you want to tell me, I suggest you discuss it with your agent first.

   (emphasis added)

7. Accordingly, the Tribunal was correct, contrary to the submission made on behalf of the Applicant, in recording that at the hearing it suggested that the Applicant first discuss with his migration agent any evidence he wished to give about discussions with his previous solicitor and migration agent: see [31] - [32] above.

8. The transcript then records at page 44 that at 1pm there was an 18 minute break, and the following exchange is recorded at pages 44 - 45:

   Tribunalmember:     Everyone has left the room except for the member. The time is 1:00pm and we will have a 10 minute break.

   Tribunalmember:     The hearing has now resumed and the time is 1:18pm. All required parties are in the room, the recording has started.

   Tribunalmember:     Is there anything you would like to say or will I keep asking questions?

   AWM16:No it's alright.

   Tribunalmember:     Keep asking questions? Okay.

   Agent:Shall I wait until the end?

   Tribunalmember:      Yes.

   Tribunalmember:     Lieutenant is a low ranking officer.

   Tribunalmember:     But in your statement you described yourself as a high ranking officer. But I understand that's not correct, you're not saying that now?

   AWM16:But I didn't write that.

   Tribunalmember:    I just want to confirm, you're not saying to me that you're a high ranking officer is that right?

   AWM16:Yes, I don't say that.

9. Towards the end of the hearing the Applicant’s migration agent made submissions and at the end of the hearing the Tribunal member gave the Applicant another opportunity to say anything further that he would like to say before the hearing concluded, which the Applicant did.

10. In my view the Tribunal gave the Applicant a clear and full opportunity to give evidence and present arguments relating to the issues arising in relation to the Delegate’s decision under review and there was no breach of s.425 of the Act.

1. The Tribunal did not seek to thwart or impede the Applicant from giving any evidence of previous discussions which he may have had with his former solicitor and migration agent. Rather, the Tribunal gave the Applicant the warning required by SZHWY in completely conventional terms and then left it to the Applicant and his then migration agent present at the hearing to decide whether or not the Applicant should give evidence to the Tribunal of his previous discussions with his former solicitor. This the Applicant did in making complaint of his former solicitor and migration agent to the extent he considered necessary and appropriate.

2. In my view Ground 1 is not made out and fails to establish any jurisdictional error.

Ground 2

1. At the hearing it was made clear by Mr Bodisco that this Ground was based on the Tribunal’s failing to give to the Applicant clear particulars of the information comprised in the Protection visa application and Statutory Declaration, insofar as they represented that he had been a Lieutenant in the LAF.

2. In my view Ground 2 also fails for a number of reasons.

3. First, the information in the Protection visa application and the Statutory Declaration relating to the Applicant’s claimed rank of Lieutenant was not information for the purposes of either s.424A or s.424AA of the Act, which latter provision in any event is nothing more than a provision which, if satisfied, exempts the Tribunal from compliance with s.424A: SZTGV v Minister for Immigration (2015) 229 FCR 90 (SZTGV) at [57] per Perram, Jagot and Griffiths JJ.

4. This is because it was not information which contained a rejection, denial or undermining of the Applicant’s claims to protection and it was not of “dispositive relevance” to the Applicant’s claims. Rather than being adverse to the Applicant’s claims, it was likely to be, if accepted, advantageous to his claims, because as a Lieutenant in the LAF it might be thought that he would be at higher risk than if, for example, he had been a mere corporal. The “information” constituting the claim to be a Lieutenant was simply viewed by the Tribunal against other evidence in relation to the existence of doubts and inconsistencies in the Applicant’s evidence and as such was not required to be disclosed under s.424A of the Act.

5. Second, the information in the Protection visa application and Statutory Declaration was exempt from having to be given to the Applicant by s.424A(3)(ba) of the Act because it was information given by the Applicant during the process that led to the Delegate’s decision that was under review by the Tribunal and it was not oral information: SZNQR v Minister for Immigration [2010] FCA 152 per Rares J at [34] and MZYER v Minister for Immigration (2010) 115ALD 382 at [50]-[53] per Dodds-Streeton J.

6. I note that at the hearing Mr Bodisco in his submissions in reply argued in support of this Ground that whether or not the Tribunal had an obligation under s.424AA of the Act to give clear particulars, once the Tribunal did purport to act under s.424AA it was mandatory for it to do so fully and correctly.

7. However, that does not represent the law. The apparent belief or assumption by the Tribunal that s.424A or s.424AA of the Act requires information to be provided to an applicant is immaterial if, in fact, such information is exempted from the operation of those sections: SZTGV at 109 [53]; SZMDS v Minister for Immigration (2009) 107 ALD 361 at [14] per Moore J; SZTNL v Minister for Immigration (2015) 231 FCR 204 at 219 [49] per Griffiths J.

8. Third, I am of the view that in any event the Tribunal, whilst it had no legal obligation to do so, did in fact give clear particulars at the hearing of the information comprised in the Protection visa application and Statutory Declaration.

9. The relevant essential claim made in the Protection visa application and Statutory Declaration was that the Applicant had been for 24 years a Lieutenant in the LAF. In paragraph 17 of his Statutory Declaration he said:

   17.Between the periods September 1989 until May 2013, I held the position as a lieutenant in the LAF.

10. This evidence was consistent with section 41 of the Protection visa application which stated that he had been employed in the position of Lieutenant from September 1989 to May 2013 by the LAF.

11. At the Tribunal hearing he moved away from this assertion, saying that he had ended his career in the LAF as a First Staff Warrant Officer. It was then that the Tribunal at transcript pages 30 to 31 (extracted above at [33]) expressed its concern that previously the Applicant had claimed to be a Lieutenant.

12. At page 44 of the transcript the Tribunal member referred to the Statutory Declaration and its description of the Applicant as a “high ranking officer” and the Applicant confirmed that he did not now make that claim.

13. At page 55 of the transcript the Tribunal expressed its concerns about the Applicant’s claims to have been involved in the LAF. Then at pages 56 to 58 of the transcript the Tribunal purported to put information to the Applicant pursuant to s.424AA of the Act in the following terms:

    Tribunal member: There is information that I want to put to you pursuant to s 424AA of the Act.

    Tribunal member:      I'm going to tell you what the particulars of the information are.

    Tribunal member:      I'm going to tell you the reasons why the information is relevant.

    Tribunal member:      I'm going to tell you the consequences of the tribunal relying upon the information.

    Tribunal member:      And essentially what that is is that it is information that would be the reason or part of the reason for affirming the decision under review if I accepted the information.

    Tribunal member:      I'll ask you if you would like to comment or respond to the information or if you would like further time, and if so, why.

    Tribunalmember:    So please let me know if you don't understand what I'm saying, otherwise if you do understand if you could wait until I say it all and then I will ask you if you want to comment or respond.

    Tribunalmember:    So at the interview with the delegate which occurred on 4 July 2014.

    Tribunalmember:      You said you were a lieutenant for 5 years.

    Tribunalmember:      And before that you were a sergeant and then you were promoted to lieutenant after you were a sergeant.

    Tribunalmember:     Now this information is relevant because it is inconsistent with evidence you have given to the tribunal.

    Tribunalmember:      That you held your last role for 3 years not 5 years and you were not a lieutenant.

    Tribunalmember: And it's also important because it's inconsistent with the evidence you gave to the tribunal that you were a sergeant and then a first sergeant and then an adjutant then a first adjutant and then a first warrant officer.

    Tribunalmember:      And this is inconsistent with what you told the delegate which was that you just went from sergeant to lieutenant.

    Tribunalmember:    So if the tribunal relies upon this information, it will find that you are not a witness of truth.

    Tribunalmember:      That you were not involved in the army.

    Tribunalmember:      That you have made up your claims.

    Tribunalmember:      And that you don't face a real chance of serious harm or real risk of significant harm.

    Tribunalmember:      And it will affirm the decision under review and find that you are not entitled to a protection visa.

    Tribunal member:     Would you like to comment on or respond to the information, or would you like further time and if so, why?

    AWM16: I'll just respond now.

    AWM16: First of all with regard to being a lieutenant for five years, I wasn't aware of the translation of that term. I was just...

14. In my view the Tribunal gave to the Applicant clear particulars of the fact that the Applicant had claimed in his Protection visa application and Statutory Declaration to the effect that he had been a Lieutenant in the LAF for some 24 years. The fact that the Tribunal did so by reference in particular to the Applicant’s interview with the Delegate did not derogate or detract from the sufficiency and meaningfulness of the giving of this information in a context where the Delegate had stated and considered evidence relating to the very same claim, as recorded in the Decision Record of the Delegate extracted at [16] above.

15. In my view Ground 2 does not establish jurisdictional error and also fails.

Conclusion

1. For each of the above reasons, in my view the Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court on 9 September 2016 must be dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     13 July 2017