AXL16 v Minister for Immigration
[2017] FCCA 1687
•20 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXL16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1687 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – the Tribunal provided rational and logical reasons in support of its adverse findings – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Applicant: | AXL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 936 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 20 July 2017 |
| Date of Last Submission: | 20 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Firmstone & Associates |
| Counsel for the Respondents: | Ms A B Douglas-Baker |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
Leave to the applicant to rely upon Ground 1 by adding the words at the end of the sentence “and is legally unreasonable”.
The Court dispenses with the need for the filing of an amended application.
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 936 of 2016
| AXL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 April 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The Tribunal found the applicant is a stateless Palestinian and found that Lebanon is the applicant’s country of former habitual residence against which the relevant considerations under the Refugees Convention and in respect of complementary protection were applied.
The applicant arrived in Australia on 27 February 2014 on a visitor visa issued in Port Moresby on 16 May 2013 and based on travel documents issued by the Republic of Lebanon on 16 July 2010 in the applicant’s name.
The applicant applied for protection on 1 April 2014. On 10 October 2014, the delegate refused the application and found the applicant failed to meet the criteria for the grant of a protection visa.
The Tribunal’s decision
The applicant applied for review on 16 October 2014. On 30 March 2016, the applicant together with his representative appeared before the Tribunal to give evidence and present arguments. Pre-hearing and post-hearing submissions were provided to the Tribunal and they were referred to in the Tribunal’s reasons.
In summary, the applicant claimed to fear harm if he returned to Lebanon on the basis of his Palestinian ethnic extraction, and on the basis that would be perceived by Lebanese authorities as having an imputed political opinion as a Palestinian militant.
The applicant also claimed to fear harm on the basis that if he returned to Lebanon, he would face restrictions on his civil and socioeconomic rights. The applicant claimed to fear harm because of the applicant’s membership of a particular social group of young Palestinian males targeted by Islamic groups in the refugee camp where he and his family resided in Lebanon.
The Tribunal identified the background to the application and set out the relevant law. The Tribunal found the applicant had essentially left Lebanon in 2008 and had not spent very much time there since he left.
The Tribunal explored with the applicant why he had not sought protection in Madagascar or Papua New Guinea and identified the applicant’s explanations in that regard. The Tribunal also raised with the applicant his failure to seek protection in Denmark. The Tribunal noted that the applicant had obtained 12 years of education in Lebanon and had then undertaken two years training to obtain his trade qualifications.
The Tribunal made express reference to the DFAT thematic report, dated March 2015 in relation to Palestinians in Lebanon. The Tribunal set out detailed information in relation to the refugee camps. The Tribunal made reference to the report, which noted that the level of freedom Palestinians have within the camps often depends on the camps themselves, and that some camps including X are more internally militarised or radicalised with the Islamist militias. The applicant referred to the Palestinian identification card he had been issued, and the Tribunal noted that the applicant alleged such card caused him difficulties in Lebanon.
The Tribunal identified concerns in relation to the applicant’s claims and evidence and as to whether the applicant had a well-founded fear of harm. The Tribunal referred to the applicant having travelled to other countries and not seeking protection, and that his failure to seek protection on those occasions was inconsistent with his claim to fear harm if he returned to Lebanon. The Tribunal also noted that he had travelled back to Lebanon when he had worked outside of Lebanon. The Tribunal identified its concern in relation to the applicant not seeking protection in other countries when he was in those countries, and referred to the applicant’s explanation.
After considering the totality of the applicant’s evidence and his claims, the Tribunal found the applicant is a credible witness in relation to his claims surrounding what happened to him in the refugee camp in Lebanon when he was there and including in the periods when he returned to Lebanon since 2008. The Tribunal found that the applicant’s claims about his treatment and his evidence about life in the camp was consistent with the country information provided to the Tribunal and referred to in the Tribunal’s reasons. The Tribunal accepted that life for the Palestinians living in the refugee camps in Lebanon is very difficult. The Tribunal accepted, based on the country information, the applicant’s evidence that conditions in the particular refugee camp are difficult and the country information and the applicant’s evidence indicates that Islamic extremist groups are particularly active in that camp.
The Tribunal noted that the country information indicated that Lebanese authorities including the Lebanese army maintain checkpoints at entry and exit points in relation to that camp. The Tribunal noted that the country information indicated and the Tribunal accepted that employment opportunities and conditions are difficult for Palestinians and that those difficulties have increased with the influx of Syrian refugees because of the conflict in Syria.
The Tribunal also referred to the information in the DFAT thematic report dated March 2015 that the particular refugee camp is one of the camps that are internally militarised and radicalised with Islamist militants. The Tribunal also referred to media reports concerning that particular camp. The Tribunal referred to the applicant’s evidence about the difficulty he had at obtaining employment and that he applied for many jobs when he lived there but that when respective employers became aware that he lives in the Palestinian refugee camp, he was unsuccessful in obtaining employment. The applicant gave evidence that his brothers had also moved overseas to obtain employment.
The Tribunal noted that the applicant did not claim that he had suffered any actual physical harm when he had lived in a particular refugee camp. The applicant claimed the Lebanese army made life difficult for the Palestinians in terms of questioning them when they entered and exited the refugee camp. The applicant did not claim he was physically harmed by the Lebanese army during these encounters. The Tribunal accepted, based on the country information identified by the Tribunal in the applicant’s evidence, that his experience in the particular refugee camp was that life is difficult for Palestinians in Lebanon.
The Tribunal also accepted the applicant’s evidence that there are Islamist militant groups operating in the particular refugee camp and that the particular refugee camp is more internally militarised and radicalised with Islamist militias than some other camps in Lebanon. The Tribunal made reference to media stories and the Tribunal accepted that the Lebanese army maintains checkpoints in relation to people entering and leaving that camp.
The Tribunal, however, found the applicant and his family have been able to live in the camp without suffering physical harm and that the applicant and his siblings have been able to receive an education. The Tribunal also found that the applicant and his brothers apparently all received trade qualifications whilst they were in Lebanon.
Consideration of Refugee Convention criteria
Having considered the applicant’s claims individually and cumulatively, the Tribunal did not accept based on the evidence and the other country information and after considering the submissions made on behalf of the applicant, that the applicant has a well-founded fear of persecution if he returned to Lebanon either now or in the reasonably foreseeable future on the basis of his claims that he is at risk of harm because of his Palestinian ethnic extraction or that he is at risk of harm because of being perceived as having an imputed political opinion of supporting radical Islamist groups in Lebanon.
The Tribunal noted the applicant had said that he did not belong to any Islamist groups in the camp and nor had any members of his family. The Tribunal made reference to the media reports identifying that armed conflicts occurred between members of the armed groups in the camp. The Tribunal noted that the applicant had never belonged to any of these groups and the Tribunal did not accept that the evidence and available country information supported the applicant’s claims in relation to those fears.
The Tribunal did not accept on the basis of the evidence, that the applicant would be perceived or imputed to be a Palestinian militant by Lebanese authorities should he return to Lebanon now or in the reasonably foreseeable future. The Tribunal made reference to the fact that the applicant has been residing in the camp since 2008 and noted that he did not belong to any Islamist groups in the camp. The Tribunal also took into account that the applicant claimed he had never suffered any physical harm from either the Lebanese Army or the Islamist groups when he had been residing longer term in the camp.
The Tribunal did not accept that the applicant had a well-founded fear of persecution based on his claimed restrictions on his civil and socio-economic rights if returned to Lebanon either now, or in the reasonably foreseeable future. The Tribunal did not accept, on the basis of the evidence, the applicant’s claim that he is at risk of harm because as a young Palestinian male he would be targeted by Islamist groups in the camp should he return to Lebanon either now or in the reasonably foreseeable future.
The Tribunal made reference to the limited amount of time the applicant had spent in the refugee camp since 2008 and to his ability to obtain employment, education and training and his ability to enter and leave Lebanon on a number of occasions, and the fact that the applicant did not claim to have suffered any physical harm in Lebanon in his dealings either with the Lebanese Army or Islamist groups within the refugee camp. The Tribunal made reference to the applicant not having joined the groups and that none of his brothers apparently joined the Islamist groups and that none of his brothers or members of his family had suffered any harm from Islamist groups in the camp.
It was in those circumstances the Tribunal did not accept that the applicant faces a real chance of serious harm on the basis of his Palestinian ethnic extraction should he return to Lebanon now or in the reasonably foreseeable future. The Tribunal did not accept based on its assessment of the evidence, that if the applicant returned to Lebanon and the refugee camp that he would be forced to join an Islamist group or that he would be involved in any political movement.
The Tribunal did not accept that the applicant faces a real chance of serious harm from any clashes that might occur in the future between Islamist groups, given that he is not a member of those groups and that the particular camp holds a very large number of people.
The Tribunal referred to the applicant’s evidence that his parents and sister continue to reside in the camp and have not been harmed during comparatively recent armed clashes, although the clashes occurred near the family home in the camp. The Tribunal did not accept on the evidence that the applicant would be the subject of an adverse inference by authorities if he is involved in Islamist activities in the future because his identification card disclosed that he lives in the refugee camp. The Tribunal did not accept that the Lebanese authorities would consider the applicant to be a member of an Islamist group on the basis that he lived in a refugee camp.
It was in those circumstances, the Tribunal did not accept that the applicant faces a real chance of significant harm on these claims were he to return to Lebanon either now or in the reasonably foreseeable future. The Tribunal did not accept that the applicant faces real chance of serious harm for a Convention related reason if he returned to Lebanon now or in the reasonably foreseeable future.
The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and found the applicant did not satisfy the criteria under s.36(2)(a) of the Migration Act. The Tribunal found that the applicant did not satisfy the criteria under s.36(2)(aa) of the Migration Act and affirmed the decision under review.
Before this Court
The grounds in the application are as follows:-
Ground 1
1. The Tribunal made a jurisdictional error by failing to consider the fact that the Applicant is devoid of effective state protection within the designated Palestinian refugee camp.
Particulars
a. At paragraph 45 of its reasons for decision, the Tribunal refers to independent evidence which notes that in relation to state protection that several areas in Lebanon are not under the effective state protection and these include Palestinian refugee camps.
b. Also at paragraph 63 of its reasons for the decision, the Tribunal refers to independent evidence (DFAT thematic report dated March 2015) which states that Ain El Hilweh camp as being one of those camps that are internally militarised and radicalised with lslamists militias.
c. At para 62 of its reasons for the decision, the Tribunal states that it also accepts that the camps are in essence effectively managed by internal committees within the camps and that the Lebanese authorities by Convention do not generally enter the camps or provide protection within the camps.
d. At para 46 of its reasons for the decision, Tribunal refers to independent evidence which notes that some Palestinians in some refugee camps are bound by movements and residency controls.
e. The Tribunal failed to consider the Applicant's central claims that inside the refugee camp of Ain El Hilweh, where he resides and being a designated area outside the jurisdiction and control of the legitimate Lebanese authorities would be devoid of the legitimate protection and thus would remain vulnerable to severe or significant harm and is legally unreasonable.
Consideration
Mr Jones, counsel on behalf of applicant, submitted that the Tribunal’s rejection of the applicant’s claims in respect of the refugee camp and his fear as to being a member of a particular social group as a young Palestinian male targeted by Islamic groups in the refugee camp was legally unreasonable.
Mr Jones of counsel took the Court to parts of the Tribunal’s reasons in respect of the DFAT report concerning the Islamist groups and militias in the particular camp. Mr Jones of counsel accepted and was correct to do so that there was evidence to support the adverse findings by the Tribunal. Mr Jones of counsel submitted that no reasonable Tribunal could come to the decision made by the Tribunal in respect of the applicant’s claims in respect of his fear from the Islamist groups or militia in the camp.
The Tribunal provided rational and logical reasons in support of its adverse findings. Those reasons included explaining the absence of harm that had occurred to the applicant when he had been there, his ability to obtain education and training, as well as the absence of harm to his family. The Tribunal explained that the information, in particular, the media reports identified clashes between the groups and the army, and that the applicant was not a member of any such group.
In those circumstances, it was open to the Tribunal to come to the adverse findings in respect of the applicant’s claims and fears. No jurisdictional error as alleged in ground 1 is made out.
The application is dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 21 August 2017
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