Bjo17 v Minister for Immigration

[2021] FCCA 144

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJO17 v MINISTER FOR IMMIGRATION & ANOR [2021] FCCA 144

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Protection visa – whether the Authority failed to consider relevant evidence – whether the Authority failed to comply with its statutory duty under s 473EA of the Migration Act 1958 (Cth) – whether there was a breach of natural justice/failure to provide procedural fairness in the conduct of the Authority – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473EA, 476

Applicant: BJO17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3113 of 2017

Judgment of: Judge Street

Hearing date: 29 January 2021

Date of Last Submission: 29 January 2021

Delivered at: Sydney

Delivered on: 12 February 2021

REPRESENTATION

The applicant appeared in person via Microsoft Teams.

Counsel for the Respondents: Mr T Reilly, via Microsoft Teams

Solicitors for the Respondents: MinterEllison

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3113 of 2017

BJO17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

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) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 6 September 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa. 

2. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. 

3. The applicant arrived in Australia as an unauthorised maritime arrival on 24 April 2013. 

4. The applicant, coming from a particular area in Lebanon, claimed to fear harm from a radical Sunni group affiliated with Al Qaeda. The applicant claimed that that Sunni group had targeted him and destroyed his café that sold alcohol, because they wanted to dominate the area with Sunni Muslims and they were opposed to alcohol consumption. 

5. The applicant claimed that he cannot return to Lebanon, because even if he does not open up another alcohol shop, he will be targeted and is on a black list of a radical Sunni group. 

6. The applicant also claims to fear harm from sectarian conflict in his home area.

7. On 24 October 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa. A differently constituted Authority affirmed the Delegate’s decision on 23 March 2017, and on 20 July 2017, orders were made remitting the matter for reconsideration according to law under Part 7AA of the Act by the second respondent. 

8. The Authority, in its reasons, identified the background to the Protection visa application and had regard to the material provided by the Secretary under s 473CB of the Act.

9. The applicant had been informed on 26 July 2017 that the Authority was reconsidering the application for the Protection visa. The applicant's migration agent emailed the Authority on 9 August 2017, foreshadowing the intention to provide further relevant submissions, but did not do so. 

10. It was after a lapse of more than 21 days that the Authority proceeded to determine the matter on 6 September 2017. 

11. The Authority summarised the applicant's claims and identified the relevant law, including in an attachment of applicable law incorporated by pagination. 

12. The Authority referred to the applicant's claims concerning an incident in 2013 when he was operating a café, which also sold alcohol, and the claims that armed men came to the café in 2013 and told him that the café must be closed down. The applicant alleged that his staff were attacked and injured and that merchandise and furniture was destroyed and the café was burnt down. 

13. The Authority referred to country information in relation to incidents or attacks on premises and threats to shopkeepers, and referred to this being particularly evident in the southern area. The applicant, however, came from the northern area. 

14. The Authority accepted the applicant's claims in relation to the incident, that he was warned by unknown men to stop selling alcohol and that, after he refused, his shop was attacked and destroyed and that the men told the applicant’s employees that they would kill him if they saw him.

15. The Authority found that there was no information to identify the perpetrators, but was prepared to accept that they were religious extremists, but was not satisfied that they were linked to ISIS or any other sectarian or terrorist group. 

16. The Authority accepted the applicant has a genuine fear of the group. The Authority took into account that the applicant had lived with his family in the same street all of his life and that the applicant did not claim that the group asked his employees where he was or where he lived or that anyone visited his street or spoke to his family or neighbours. The Authority noted that the applicant had confirmed to the Delegate that he had not received any written threats and did not know of any orders in the nature of a fatwa or other order against him. 

17. The Authority took into account the time at which that incident occurred and noted that the country information does not support alcohol vendors being targeted or killed after they had stopped trading. The Authority was not satisfied that the group took any steps to locate and harm the applicant and was not satisfied that he has been targeted for any ongoing harm. It was in those circumstances that the Authority was not satisfied that the applicant faced a real chance of harm on the basis of having operated an alcohol shop or arising from its destruction.

18. The Authority accepted that, for the purpose of a profit, the applicant was likely to return to the selling of alcohol if he returned to Lebanon and referred to his fear from extremist groups. 

19. The Authority took into account that the applicant has not been able to identify any extremist group that was involved in the past event and referred to country information in relation to a successful security plan that has been implemented by the Lebanese Armed Forces, backed by major political factions. 

20. The Authority also referred to an absence of country information that the applicant's home area is now, or is likely to come under extremist control or domination, or that it may be subject to particular extremist violence or that extremists can operate there with impunity. The Authority took into account that there was nothing in the country information to indicate Sunni extremists continue their attempts to impose Sharia law on Sunni neighbourhoods in the applicant's home area. The Authority was satisfied that the circumstances in the applicant's home area have changed such that an outside extremist group would not have the same profile, authority or impunity that it had in 2013. 

21. The Authority referred to being satisfied that the situation in the applicant's home region is stable and that the government is exercising robust and successful control over extremist groups, and took into account the applicant's evidence at the interview that his local community and fellow traders did not support, encourage or incite the extremist group. 

22. The Authority found that while there was some resistance to the sale of alcohol in some of the communities in the applicant's home area, the Authority took into account that the attack on the applicant's shop came at a time of significant unrest when the extremists groups were gaining a foothold in that area. The Authority was not satisfied that those groups have the same profile now and found the situation is now more stable and controlled. Having regard to all the evidence and the country information, the Authority was satisfied that there was only a remote and therefore not a real chance of the applicant facing any harm from extremist groups should he resume selling alcohol.

23. The Authority also took into account country information in relation to extremist violence. 

24. The Authority found that the applicant would not face a real chance of harm due to his ethnicity, religion or from sectarian or general violence, should he return to Lebanon. 

25. The Authority found that the applicant does not face a real chance of harm because of his alcohol business or because of the general situation in Lebanon or for any combination of these reasons, should he return to Lebanon. 

26. The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act.

27. The Authority found that the applicant did not meet the criteria in s 36(2)(a) of the Act. 

28. The Authority found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being returned to Lebanon, there is a real risk that the applicant will suffer significant harm. 

29. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) and affirmed the decision under review.

Before the Court

1. These proceedings were originally fixed for hearing on 15 December 2020. However, as a result of a change in the applicant's representation, the Court adjourned the matter for hearing today and also made orders for further service of the court book and the respondent’s submissions upon the applicant, who was in detention. 

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the explanation given by the Court.

3. The applicant orally submitted that the recent situation in Lebanon reflected a deteriorating situation. The recent events to which the applicant referred were not events that were before the Authority at the time of the Authority’s decision and, accordingly, are not capable of giving rise to any jurisdictional error. 

4. The applicant also referred to the loss of his mother and brother and other pressing family circumstances, all of which invited either impermissible merits review or the determination of the matter on compassionate or discretionary grounds. This Court has no power to determine the matter on compassionate or discretionary grounds.

5. The applicant also referred to his history in detention and his fears in relation to communications that might have been sent, neither of which were matters raised before the Authority and, accordingly, are not capable of giving rise to any jurisdictional error. 

6. Nothing said by the applicant orally identified any jurisdictional error. 

The grounds

1. The grounds in the application are as follows: 

   Ground 1: Jurisdictional Error - The Immigration Assessment Authority's decision dated 6 September 2017 (the decision) is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicant does not meet the requirements of the definition of refugee in s.SH(l) of the Act. Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error.

   In the alternative, to conclude that the applicant does not meet the requirements of the definition of refugee in s.SH(l) was, in all the circumstances, otherwise unreasonable (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

   Particulars

   1.1. At paragraph 6 of the decision the IAA summarised the applicant's claim is as follows:

   ·    He was born in Tripoli in the northern region of Lebanon. His parents are deceased but his siblings all remain in the same suburb in Tripoli. He is not married and has no children.

   ·    He is a Sunni Muslim but is not aligned with any specific sect. He believes that one must love and respect all people regardless of their beliefs, opinions and values.

   ·    He served 18 months of compulsory military training and service in 2002-2003. After he left the military, he was arrested for stealing electricity in 2003 but released soon after. He was also accused of bag snatching but was later acquitted.

   ·    In 2010, he commenced operating a cafe in his suburb. This cafe also sold alcohol by the bottle and had a sitting area where customers could drink the alcohol they purchased.

   ·    His customers were mainly Alawite and Christians from other areas of Lebanon but he had local customers as well.

   ·    In 2013, strangers came to the cafe. They were outsiders and were radical Sunni who were trying to impose sharia law on everyone. They told him that he must not sell alcohol or encourage non-Sunni to come to the area. He did not listen to them.

   ·    A couple of days later, some men attacked his cafe. He was not there at the shop but the men injured his staff, broke his merchandise and furniture and then burnt the shop down. They told his staff that they would kill the applicant if they saw him.

   ·    He fled to Beirut and stayed there for a few weeks until he could leave Lebanon. He left by air with a valid passport and travelled to Indonesia, then took a boat to Australia.

   ·    Since he has been in Australia, he has heard things that make him think the men were associated with the Islamic State of Iraq and Syria (ISIS).

   ·    He cannot go back to Lebanon because even if he does not open another alcohol shop, he has been targeted. He is on a "black list" and has been marked for death. The men will find him and kill him anywhere.

   1.2. At paragraph 10 of the decision the IAA found that the applicant has provided consistent and plausible claims throughout the course of the TPV process and accepted his general credibility.

   1.3. At paragraph 13 of the decision, the IAA stated as follows:

   Information in the material indicates that Tripoli was once home to a thriving nightlife which included many pubs, bars and nightclubs. The city was marked by economic progress, prosperity and construction. They heyday of this period was in the 1960s and 1970s, but there was also a resurgence of this nightlife around 2005.¹ However, since 2011 there has been an increase in conflict between sectarian groups, an influx of refugees from the Syrian civil war and the rise of extremist groups.² One of the consequences of the changing political, religious and security landscape in Lebanon has been the rise of opposition to the sale and consumption of alcohol. Media reporting and other information in the materials notes that outside of Beirut, the period 2012 - 2014 saw increasing incidences of attacks on premises, threats against shopkeepers, intimidation of diners and drinkers and in some instances, bombings and burnings of premises. This was particularly evident in the southern areas of Lebanon but was also noted in Tripoli, where many businesses either ceased selling alcohol or closed down altogether.₃ I also note that the Syrian civil war has seen a rise in the activism of extremist Sunni groups and jihadists, including persons associated with, or wanting to associate with ISIS.

   1."Tripoli residents recall a once-bustling nightlife, now on hold", Daily Star, The (Lebanon), 3 May 2014, CX320601 .

   2.Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report- Lebanon", 18 December 2015, CISEC96CF14155. And

   3."Beyond Beirut, lslamists advance", Inter Press Service (IPS), 8 June 2012, CX288936; "Militants Set Their Attacks on Alcohol in Lebanon", New York Times, The, 25 January 2012, CX313994; "Tripoli residents leave as security crumbles", Daily Star, The (Lebanon), 5 February 2014, CX317787; ''Tripoli youth recruit fighters to send to Syria", Al Monitor, 14 March 2014, CX319538; "Tripoli alcohol advertising ban draws fire", Daily Star, The (Lebanon), 11 August 2014, CX324439; Peace Building in Lebanon Project, ''Tripoli", 31 March 2015, CISEC96CF14688.

   1.4. At paragraph 14 of the decision, the IAA considered that the applicant's claims are credible, plausible and consistent.

   1.5. At paragraph 18 of the decision, the IAA was satisfied that if the applicant returned to Lebanon on he would continue to sell alcohol.

   1.6. At paragraphs 19 - 25, the IAA considered information regarding the general situation in Lebanon. However, the IAA failed to explain how such information was relevant to the applicant's personal well-founded fear of persecution as a result of selling alcohol.

   1.7. In particular, the IAA failed to consider relevant country information which it previously considered relevant in its previous decision dated 23 March 2017 at paragraph 12 as follows:

   Country information indicates that the sale and consumption of alcohol is generally permitted in Lebanon.¹ However, in the more conservative Sunni dominated North Lebanon and the Shia dominated South, ruling militias have sought to impose the Sharia law ban on alcohol and have imposed restrictions in territories they control. Shi'a Hezbollah have banned the sale of alcohol in the Southern Lebanon areas under its control and several establishments have also been the target of explosions or shootings.² It is suggested that the intention is not only to deter the liberal 'un-lslamic' behaviour, but also to harm the tourism sector. In the North, in 2014, Tripoli's Mayor placed a ban on the advertising of alcohol and claimed to be stepping up a campaign against drunk-driving but alcohol itself has not been banned and it is still served in establishments.₃ However, Sunni militias have in the past threatened restaurants and alcohol vendors and some establishments ceased their operations due to the recurring sectarian conflict.⁴ Information supports that residents and establishments are concerned about the rise in extremist ideology in the region and see this as manifesting through the restrictions on the once tolerant and adventurous Tripoli lifestyle.⁵

   1.The New York Times, "Militants Set Their Attacks on Alcohol in Lebanon", 2S January 2012, CX313994; The Daily Star, Tripoli residents recall a once-bustling nightlife, now on hold", 3 May 2014, CX320601; Peace Building in Lebanon Project, ''Tripoli" 31 March 2015, CISEC96CF14688, pp10, 18

   2.2. "Lebanon: The Shiite Dimension ", Wilson Center, 27 August 2015, CXBD6AODE17496; Now, "The liberated south, 15 years later'', 25 May 2015, CXBD6AODE17491

   3.The Daily Star, "Tripoli alcohol advertising ban draws fire", 11 August 2014, CX324439

   4.Mona Alami, Inter Press Service, "Beyond Beirut, lslamists advance", 8 June 2012, CX288936; Peace Building in Lebanon Project, "Tripoli" 31 March 2015, CISEC96CF14688, pp10, 18

   5.Mona Alami, Inter Press Service, "Beyond Beirut, lslamists advance", 8 June 2012, CX288936; The Daily Star, Tripoli residents recall a once-bustling nightlife, now on hold", 3 May 2014, CX320601

   1.8. The country information referred to in the preceding paragraph is relevant to the current decision of the IAA, notwithstanding that the previous decision dated 23 March 2017 was quashed by the Federal Circuit Court on 19 July 2017, by consent (see Other Court Proceedings sections below).

   1.9. At paragraph 36 of the decision, the IAA concluded that:

   "Considering the applicant's circumstances overall I find that the applicant does not face a real chance of harm because of his alcohol business or because of the general situation in Lebanon or for any of, or any combination of these reasons should he return to Lebanon."

   however, the IAA did not list the matters it considered relevant that had influence in its findings.

   1.10. The IAA failed to engage in the mental process of analysing the evidence or providing an assessment of why the evidence satisfies or does not satisfy the definition of refugee in section 5H (1).

   Ground 2: Jurisdictional Error - The Immigration Assessment Authority's decision is affected by jurisdictional error in that the IAA failed to consider the evidence before the IAA and provide reasons as to why the IAA was not satisfied that the applicant holds a well founded fear of persecution as defined in s.SJ of the Act. Consequently, the IAA failed to complete its obligation to review the decision of the delegate, failed constructively to exercise its obligation to review and so fell into jurisdictional error.
   In the alternative, to conclude that the applicant does not hold a well founded fear of persecution as defined in s.5J was, in all the circumstances, otherwise unreasonable (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332).

   Particulars

   2. 1. The applicant repeats the particulars to Ground 1 above.

   Ground 3: Jurisdictional Error - The IAA failed to comply with its statutory duty under s473EA of the Migration Act 1958 in that the IAA failed to set out any, or any proper reasons for its decision.

   Particulars

   3.1. The applicant repeats the particulars to Ground 1 above.

   Ground 4: Jurisdictional Error - The IAA acted in breach of natural justice or failed to give procedural fairness to the applicant.

   Particulars

   4.1. On 9 August 2017 the applicant, through his legal representative, advised the IAA that he would be making some further relevant submissions to the IAA in the very near future (via two emails on the same date).

   4.2. The IAA made its decision on 6 September 2017 without affording the applicant the opportunity to make further submissions in support of his claim.

Grounds 1 and 2

1. In relation to grounds 1 and 2, it is apparent that the Authority expressly referred to country information, including country information that had been previously considered by a differently constituted Authority. The Authority’s reasons reflect a genuine intellectual engagement with the applicant's claims and the evidence and the making of adverse findings that were logical, rational and open for the reasons given by the Authority. 

2. It was a matter for the Authority as to what country information it referred to and, given that the applicant was not from southern Lebanon, there is an obvious logical reason why the Authority was not required to expressly refer to the situation in southern Lebanon. Nor was the Authority required to refer to every piece of evidence before it. 

3. Grounds 1 and 2, in substance, reflect an invitation to engage in impermissible merits review. The reasons of the Authority, in support of the adverse findings with respect to the applicant's claim to fear harm by reason of his past selling of alcohol and the future selling of alcohol, were logical and rational and open to the Authority. Given those reasons, as summarised above, the decision cannot be said to lack an evident and intelligible justification. The adverse finding by the Authority is not one to which no reasonable decision-maker could come.

4. Accordingly, no jurisdictional error is made out by grounds 1 and 2. 

Ground 3

1. In relation to ground 3, it is apparent that the Authority provided reasons in support of this adverse finding and complied with the requirements of s 473EA of the Act. 

2. The alleged non-compliance with s 473EA of the Act is not made out. 

Ground 4

1. In relation to ground 4, whilst it is apparent that the applicant's migration agent is a person who has subsequently been the subject of removal as a migration agent, there is nothing before the Court to establish a fraud by the migration agent disabling the Authority from the conduct of its review.

2. Further, the foreshadowing of written submissions on the applicant's behalf, and given the passage of time of more than 21 days that had passed, does not give rise to any legal unreasonableness in the Authority proceeding to make a determination in respect of the review.

3. It is apparent from the statutory provisions that the review under Part 7AA of the Act is one to be conducted with a level of expedition in relation to a fast-track applicant. 

4. The Court does not accept that the communication from the migration agent, foreshadowing the making of submissions which have not then been advanced, gives rise to the extreme circumstance of a kind so as to give rise to legal unreasonableness in the Authority proceeding to determine the matter after the expiry of that period of time. 

5. The Court does not accept that it was necessary for the Authority to take steps to further contact the applicant's representative in respect of the intention to provide written submissions.

6. No jurisdictional error as mentioned in ground 4 is made out. 

7. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 12 February 2021