BGQ16 v Minister for Immigration
[2018] FCCA 2160
•10 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGQ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2160 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant – Applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – no basis to claims of jurisdictional error – application for judicial review dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.43 Migration Act 1958 (Cth), s.438 |
| Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 AWA15 v Minister for Immigration [2018] FCA 604 BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 |
| Applicant: | BGQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1316 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 27 July 2017 |
| Date of Last Submission: | 15 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr T. Galvin |
| Solicitors for the First Respondent: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 25 May 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1316 of 2016
| BGQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Lebanon aged 57 years, having been born on 16 May 1961.
By Application filed in this Court on 25 May 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 29 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 March 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
On 27 July 2011 the Applicant applied for a Sponsored (Visitor) (Class UL) visa sponsored by his father. A Delegate of the Minister refused this application and on 14 September 2011 the father, as sponsor, sought review of the Delegate’s decision from the Tribunal (then the Migration Review Tribunal) (MRT). Both the Applicant and his father gave oral evidence at the hearing before the MRT (MRT hearing). The evidence in this proceeding does not disclose whether the MRT affirmed the Delegate’s adverse decision or granted this visa to the Applicant.
The Applicant initially arrived in Australia lawfully on 23 February 2012 on a Sponsored Family (Subclass 679) visa (Sponsored Family visa) which was granted offshore on 21 February 2012 and valid to 21 May 2012, on which day he departed Australia and returned to Lebanon. The Applicant then returned to Australia on 15 June 2013 on a Visitor (Subclass 600) visa, which was granted on 6 June 2013 and expired on 15 September 2013. On 2 September 2013 the Applicant lodged his Protection visa application.
Claims for Protection
In answer to questions 43 to 48 of his Protection visa application form and in a letter dated 27 August 2013 which formed part of his Protection visa application the Applicant made the following factual claims:
a)He is a Sunni Muslim Lebanese citizen of Arab ethnicity who originates from Bab El Tabbaneh neighbourhood (a.k.a Bab Tabbaneh, Bab Al-Tabbaneh, Tabbane) in Tripoli, Lebanon.
b)His wife and five children are currently residing in Lebanon.
c)On 4 December 2012 the Applicant’s eldest son was killed by snipers in front of the Applicant’s business in Bab El Tabbaneh.
d)The Applicant worked as a mechanic in Tripoli from 1984 until June 2013. While he was in Australia he lost his business (Nassouh Workshop for Vehicle Mechanics) which was located in Moharram St in Bab Al Ramel as a result of two bomb blasts which occurred on 23 August 2013. He had owned the business for 30 years. If he is returned to Lebanon, he will not be able to work because his business was destroyed.
e)These two bomb blasts took place in Al Takwa Mosque (a.k.a Al-Taqwa) situated only metres from the Applicant’s house in Lebanon. Many people were either killed or injured as a result of the blast.
f)He had every intention of returning to Lebanon on his planned return date (6 September 2013) after his visit to Australia but he is afraid to return because his life is in danger.
g)He fears he will be killed by the same people who killed his son in December 2012 and the same people who destroyed his business in August 2013 and his whole family will be affected.
h)The Lebanese authorities are unable to protect him or his family as they are unable to protect themselves.
i)The security situation in Bab El Tabbaneh is ongoing sectarian violence.
j)He would not be able to relocate within Lebanon and being a Sunni he would suffer serious harm.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of Delegate
The Applicant attended an interview with the Delegate on 20 January 2014 with the assistance of an interpreter in the Arabic and English languages. During the interview the Applicant elaborated further on his claims which were summarised by the Delegate in her Decision Record.
In the result, the Delegate was not satisfied that the Applicant faced a real chance of Refugees Convention-related persecution on return to Lebanon. She found that he would not be at risk of serious harm due to generalised violence in Tripoli and that he could relocate within the city to avoid the impact of sectarian violence in any event. The Delegate further found that she was not satisfied that the Applicant faced a real chance of being subjected to significant harm should he be returned to Lebanon for the purposes of the complementary protection criterion and she therefore refused to grant a Protection visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal on 24 March 2014 for merits review of the Delegate’s decision.
The decision of the Tribunal (then the Refugee Review Tribunal) dated 22 October 2014 (RRT and RRT decision) which affirmed the decision of the Delegate was quashed by an order of this Court on 5 November 2015 and remitted back to the Tribunal for redetermination according to law.
On 14 April 2016 the Applicant appeared before the Tribunal differently constituted to give evidence and present arguments with the assistance of an interpreter in the Arabic and English languages.
From [3] – [6] of its Decision Record the Tribunal recorded the Applicant’s claims as made up to the date of the Delegate’s decision.
From [18] – [32] of its Decision Record the Tribunal recorded:
a)the further evidence given by the Applicant at the hearing before the Tribunal on 14 April 2016;
b)its consideration and analysis of the Applicant’s claims as made by the Applicant to the Minister’s Department in his Protection visa application, his letter dated 27 August 2013, at his interview with the Delegate, at the MRT hearing, at the RRT hearing and at the hearing before the Tribunal; and
c)the differences and inconsistencies in the various accounts given by the Applicant of his claims and in his evidence from time to time in the documents and on the occasions referred to immediately above.
In the event the Tribunal rejected all of the Applicant’s specific claims. At [28] of its Decision Record it concluded that his account of his experiences was “highly dubious and lacking in credibility”. At [34] the Tribunal recorded that it did not accept that the Applicant had departed Lebanon because of any threats personally directed at him by Alawis or anyone else in Lebanon.
However, at [35] the Tribunal accepted that the Applicant had resided in Bab Al-Tabbaneh, that his wife and children continued to reside in that area and that Sunnis living there, according to a recent DFAT report, faced a moderate risk of violence given the long history of sectarian violence in that area, which meant that if the Applicant returned to Bab Al-Tabbaneh in the reasonably foreseeable future there was more than a remote chance that he would face serious harm.
Nevertheless, at [36] of its Decision Record the Tribunal recorded that the Applicant was an experienced mechanic and businessman and expressed its satisfaction that it would be reasonable for the Applicant to relocate to another locality in Tripoli, or another part of Lebanon, to avoid the harm he feared in Bab Al-Tabbaneh. At [37] the Tribunal recorded that at the Tribunal hearing the Applicant had stated “that if he were to return to Lebanon he would be able to re-join his business in Bab el-Ramel, which is now being operated by his brother” but that if he did not wish to work with his brother there was no reason why he would be unable to utilise his expertise and skills to support himself and his family (I note at this point that the Tribunal had earlier recorded at [22] that the Applicant had confirmed that “Bab el-Ramel is located to the south of and some distance away from Bab al-Tabbaneh and the al-Taqwa Mosque” where the bombs had been claimed to have exploded). Accordingly, it found at [38] – [40] as follows:
[38] On the basis of the evidence before it and having regard to the Applicant’s circumstances overall, the Tribunal is satisfied that it would be reasonable and practicable for the applicant to safely internally relocate. The Tribunal is satisfied that there is no real chance that the applicant will face serious harm for a Convention reason by anyone if he were to internally relocate.
[39]The Tribunal is not satisfied that the applicant’s fear of persecution in Lebanon for a Convention reason is well-founded.
[40]Having regard to the findings of fact above, the Tribunal finds that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm in his home area in Tripoli. However, under s.36(2B)(a) of the Act there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.
At [41] the Tribunal expressed its satisfaction that if the Applicant was to internally relocate there would not be a real risk that the Applicant would suffer significant harm arising from sectarian violence in Tripoli.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant were as follows:
1. The Tribunal misunderstood the location of my business in spite of being given a satisfactory explanation. The rejection of my claim based on property damage and economic loss as a result of August 2013 explosions is wrong and contrary to the facts which were provided to the first Tribunal hearing in a handwritten map. It seems that the first Member of the Tribunal, Roger Shanahan as well as the current Member, Roushan, ignored the location in Tripoli.
2. The Tribunal has no basis to state and reject my claim that I had a shop near or next to Al Taqwa Mosque. The Tribunal failed to understand the location.
3. The first Tribunal denied that I had a son who was killed. The second Tribunal failed to understand the circumstances of the killing of my son. The Tribunal also failed to understand the impossibility to relocate.
4. The decision of the Tribunal is not logical and not reasonable as it based on assumption contrary to the facts before it.
Consideration
Ground 1
Insofar as this Ground refers to the RRT decision handed down by Mr Roger Shanahan as RRT member, I am not reviewing that decision, which has already been set aside by this Court.
Otherwise, in my view this Ground seeks to invoke merits review of the Tribunal’s findings in relation to the location and the claimed destruction of the Applicant’s workshop businesses, which merits review is not open to this Court. At [18] – [24] of its Decision Record the Tribunal records the various different and inconsistent accounts given by the Applicant over the course of time in relation to these issues. These perceived differences and inconsistencies led the Tribunal at [25] – [26] to find as follows:
[25]The Tribunal finds the applicant’s explanations unsatisfactory and is unable to reconcile the various inconsistencies in his evidence. The Tribunal has significant doubts regarding the applicant’s evidence in relation to the history, location and the status of his shops and businesses. Having considered the applicant’s evidence, including his and his father’s evidence to the MRT, the Tribunal is prepared to accept that he had a mechanical workshop and spare parts retail shop in Bab el-Ramel, which he operated in partnership with his brother. The Tribunal, however, does not accept the applicant’s claim that he owned or rented a shop near or next al-Taqwa Mosque and Bab al-Tabbaneh.
[26]As the Tribunal has rejected the applicant’s claim that he had a shop near or next to al-Taqwa Mosque and in the vicinity of Bab al-Tabbaneh, the Tribunal does not accept the applicant’s claim that his shop was destroyed as a result of the explosion at al-Taqwa Mosque in August 2013. The Tribunal does not accept that he has suffered property damage and economic loss as a result of the August 2013 explosions.
In my view the Tribunal’s findings in relation to these issues were legally open to it, were based on legally rational grounds and there is nothing “capricious” or “irrational” or “lacking an evident or intelligible justification” in relation to those findings.
Ground 2
In my view, the Tribunal had a legally rational basis for finding in [25] of its Decision Record that the Applicant did not own or rent a shop near or next to the al-Taqwa Mosque. The Tribunal found inconsistencies in the Applicant’s claims as made in relation to his shop or shops from time to time, as noted above. This was entirely conventional because it is common for the purposes of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence of a party (or witness) in the course of the assessment of the trustworthiness and veracity of that party (e.g. see s.43 of the Evidence Act 1995 (Cth)). If that party has earlier said one thing and then subsequently says another thing about the same subject matter, this may, if not minor or trivial, throw suspicion on the accuracy or credibility of that party’s evidence. Likewise, if that party makes a claim later which he had not made earlier but which might have been expected to have been made at that earlier point of time. In this context Nettle J said in SZUSH v Minister for Immigration and Border Protection [2016] HCATrans 112 at 10 as follows:
…. it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21-22 [42] – [44] per Gummow and Hayne JJ.)
No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent.) As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.
In this connection see also the judgment of Farrell J in AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 [45] – [47].
Finally, in AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205, the Tribunal in its decision had pointed to a number of inconsistencies in important aspects of the applicant’s claims as made at various times and between her accounts and those given by her husband at an earlier Tribunal hearing. The Tribunal also considered that the applicant’s answers were evasive and vague when those inconsistencies were put to it. In that context, Perry J said at [24]:
[24]The existence of such inconsistencies in important aspects of the appellant’s claims, and the failure to explain those inconsistencies in a way that the Tribunal considered was satisfactory, provide a logical and rational basis for the Tribunal’s adverse credibility findings. In this regard, it is well established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451–452 (Beaumont J); Guo at 596 (Kirby J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion is not established: see eg Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at [7] (Heerey J).
Ground 2 simply argues with the finding of the Tribunal and fails to establish jurisdictional error.
Ground 3
The first sentence of this Ground refers to the RRT decision which has already been set aside, and which is not the subject of judicial review in this Court.
At [33] of its Decision Record the Tribunal accepted that the Applicant’s son was killed on 4 December 2014 but that he was not specifically targeted for any reason by the Alawis but was tragically killed because he had found himself at the wrong place at the wrong time. That was a finding that was legally open to the Tribunal for the reasons given and this Ground does not establish that the decision of the Tribunal was affected by jurisdictional error.
Ground 4
This Ground is unparticularised and fails to meaningfully identify any form of jurisdictional error, but rather seems to simply express disagreement with the result of the Tribunal’s decision.
A Final Matter
The Minister as a model litigant disclosed that a Delegate of the Minister had issued a certificate dated 11 November 2015 purportedly pursuant to s.438 of the Migration Act 1958 (Cth), addressed to the District Registrar of the Tribunal (s.438 Certificate). The s.438 Certificate states that it applies to information in folios 60 – 61 and 108 – 110 in file number CLF2013/228296, because the “disclosure of this information would be contrary to the public interest…because [they] contain information relating to an internal working document of business affairs”.
The folios referred to in the s.438 Certificate are as follows:
a)Folio 60 is a document comprising two pages and confirms the Applicant’s identification details;
b)Folio 61 is again a two page document which confirmed the validity of the Protection visa application of the Applicant and the grant to him of an associated Bridging visa;
c)Folio 108 is an email from a legal officer of the Department to an officer of another part of the Department in connection with the Minister agreeing to the quashing of the RRT decision by this Court on 5 November 2015;
d)Folio 109 is a summary of the details relating to the Minster’s agreement to the quashing of the RRT decision on 5 November 2015; and
e)Folio 110 simply records that on 5 November 2015 this Court ordered that the Tribunal reconsider the Protection visa application of the Applicant.
The Minster accepted at the hearing that the s.438 Certificate was invalid but submitted that, whilst it appears that the Tribunal did not disclose the existence of the s.438 Certificate or the documents the subject of it to the Applicant, this did not give rise to a denial of procedural fairness constituting jurisdictional error.
I agree with the Minister’s submission that non-disclosure of the s.438 Certificate and the folios did not give rise to a denial of procedural fairness. In my view the s.438 Certificate is invalid, but no relevant non-disclosure has occasioned procedural unfairness to the Applicant. The Tribunal did not mention or rely upon the s.438 Certificate and in reaching its decision did not act upon or have regard to any of the folios which were subject to the s.438 Certificate. They were entirely irrelevant and immaterial to the Tribunal’s review of the Delegate’s decision and neither the existence of the s.438 Certificate nor the documents subject to it could have had any conceivable impact on the outcome of the review and there was no practical unfairness caused thereby: see BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2] – [4] per Robertson J.
Conclusion
None of the Grounds relied upon by the Applicant establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 14 August 2018
0
8
3