BKS17 v Minister for Immigration
[2020] FCCA 967
•29 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKS17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 967 |
| Catchwords: MIGRATION – Application for review of decision of the Immigration Assessment Authority (the Authority) – whether the Authority’s decision was based on irrelevant findings – whether the Authority failed to take into account relevant considerations – no jurisdictional error revealed – grounds not made out – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 476 |
| Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 DFE16 v Minister for Immigration and Border Protection [2017] FCCA 308; (2017) 317 FLR 215 FCS17 v Minister for Home Affairs [2020] FCAFC 68 SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 237 ALR 634; (2007) 97 ALD 1 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 |
| Applicant: | BKS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1019 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 April 2020 and 21 April 2020 |
| Date of Last Submission: | 21 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 29 April 2020 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Ms A. Wong |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 4 April 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1019 of 2017
| BKS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 4 April 2017, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Immigration Assessment Authority (“the IAA”) which on 3 March 2017 affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”).
Background
The applicant is a citizen of Lebanon, and a Sunni Muslim (CB 10). He arrived in Australia on 6 May 2013, and was considered an “unauthorised maritime arrival” (CB 58 and CB 90). The applicant’s visa application was received by the Minister’s Department on 27 July 2016 (CB 34–CB 74). In his visa application, the applicant stated that he left Lebanon (item 89 at CB 69):
“…due to the horrible state that it was constantly in. All areas of Lebanon are subject to the civil war which includes every single person living in that country, including innocent people. These wars are between every religion and the different sects within each religion and the different political parties. This literally meant that the whole of Lebanon went to war with themselves and is always in danger. I left the country because my life was at risk every single day. There is no one can protect you in that country, and no safety. I have been so close to death multiple times as the war happens right outside my door.”
Further, the applicant stated that he could experience the following harm if he returned (item 94 at CB 71):
“There is a 50/50 chance of being harmed if I return to that country. I do not know when the next time a war occurs that I will be targeted. Anyone could be responsible for that as the whole country will be firing against each other. Being harmed could include being wounded physically or mentally and emotionally which happens every day as you witness others being killed.”
The applicant was also asked if he had moved or tried to move to another part of Lebanon to seek safety. The applicant stated (item 93 at CB 70):
“No, I did not move to another part of that country since all areas of the country are affected equally. There is no safety throughout Lebanon and regardless of where you go your life will still be in danger”.
The applicant also stated that he did not think he would be able to relocate within Lebanon because (item 96 at CB 71):
“…it would be unnecessary and would not make a difference as all areas of that country as equally affected. Wherever I Live in that country my life will still be at risk.”
The Delegate
On 18 November 2016, the delegate refused to grant the applicant a protection visa (CB 113–CB 122). The delegate found that the applicant had a real chance of experiencing harm as a Sunni in Bab al-Tabbaneh (CB 120). However, s.5J(1)(c) of the Act requires that for such harm to be considered persecution, the harm must be present throughout the whole of Lebanon. The delegate found that the applicant could relocate to Beirut, therefore, his fear of persecution was not considered to be “well-founded”.
The delegate also found that the potential harm the applicant could incur as a Sunni from Bab al-Tabbaneh constituted arbitrary deprivation of life (CB 121). However, the delegate found that relocation to a safe area was reasonable and therefore it could not be said that there was a real risk that the applicant would suffer significant harm on return (CB 121).
Consequently, the delegate found that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 120 and CB 122).
The IAA
The applicant’s application was referred to the IAA on 24 November 2016 (CB 127–CB 132). The IAA affirmed the delegate’s decision to refuse the applicant the visa on 3 March 2017 (CB 133–CB 143).
The IAA summarised the applicant’s claims for protection as follows ([4] at CB 135:
“· He is a Sunni Muslim born in a village in Akkar, Lebanon but lived most of his life in the Bab Al-Tebbaneh neighbourhood in Tripoli.
· He left Lebanon due to the constant war between the different religious sects and political parties.
· His paternal uncle was killed when the applicant was a baby and his father’s cousin was shot on his way to buy bread. His father was shot and wounded on his way to work. He was not deliberately shot but was a victim of the conflict.
· He fears being physically wounded, mentally and emotionally harmed and / or killed.
· His life in Lebanon was at risk every day. He has been close to death multiple times as the war happens right outside his door. He does not know the next time he will be targeted and anyone could be responsible as the whole country is in conflict.
· There has never been a government to protect the Lebanese people.
· He cannot relocate as all areas of the country are affected equally.”
The IAA found the applicant to be a credible witness ([7] at CB 136).
The IAA stated that the applicant is “a Sunni Muslim from Bab Al-Tabbaneh, which, along with Jabal Mohsen (Mount Mohsen) is one of the two flashpoint neighbourhoods of recurring sectarian/political violence in Tripoli” ([12] at CB 137).
Based on the evidence the applicant provided at his interview with the delegate, the IAA was not satisfied that he was at risk of harm on account of his “familial relationships” ([13] at CB 137). After taking into account country information, the IAA was not satisfied that there was a real chance the applicant would be “forcibly recruited by local Sunni militia” or harmed “for not joining their cause” ([14] at CB 137). The IAA found that the applicant was not of “personal adverse interest to the Alawites or pro-Syrian regime fighters of Jabal Mohsen or any such Shi’a militia” ([15] at CB 137).
However, the IAA found that the applicant faces a “small but real chance of persecution from Alawite militias from the adjacent neighbourhood targeting Sunnis in his own neighbourhood” on account of his being a “Sunni Muslim from Bab Al-Tabbaneh” ([19] at CB 138).
As did the delegate, the IAA also noted that s.5J(1)(c) of the Act requires that for a real chance of persecution to be found, such persecution must be in existence in all areas of Lebanon ([20] at CB 138). The IAA also found that the applicant would be able to relocate to Beirut ([21] at CB 138–CB 139).
The IAA also addressed the applicant’s concerns regarding his ability to live a “free” life in Lebanon and that he would face religious discrimination. The IAA found on the evidence that the religious discrimination the applicant had faced could not be considered persecution, and that the applicant’s lifestyle had not been curtailed. Further, the IAA stated that the applicant would not incur serious harm for these reasons ([22] at CB 139).
The IAA was not satisfied that the applicant would face harm on return on account of Hezbollah, noting that the applicant was able to depart Lebanon on his own passport ([23] at CB 139).
The IAA also considered the applicant’s claims that Beirut is unsafe, and also had regard to “the broader risk of harm arising from sectarian and insurgent violence in Lebanon” ([24] at CB 139). After taking into account country information, the IAA was not satisfied “that the applicant faces a real chance of harm arising from the refugee influx or any armed response from Syria, nor from ISIS, Al-Nusra or other insurgents in the reasonably foreseeable future in Beirut” ([28] at CB 140).
The IAA also found that “the applicant would not face any additional risks as a returning asylum seeker resettling in Beirut or if it became known that he is Sunni and originates from his area in Tripoli” ([29] at CB 140). The IAA was also not satisfied that “Lebanon’s current governance structure contributes to any risk facing the applicant, nor that protection is in any way withheld” ([30] at CB 140).
The IAA also assessed the applicant’s claims concerning his depression. The IAA accepted that the applicant’s “situation is difficult”. The IAA considered country information, and concluded that it was not satisfied that he “would face persecution arising from these conditions upon return, nor that they would alter the risk facing the applicant for any other reasons upon return” ([31] at CB 140).
After taking into account the applicant’s circumstances individually and cumulatively, the IAA concluded that the applicant would not face persecution in Beirut upon return ([32] at CB 140–CB 141).
In assessing the applicant’s claims in the context of complementary protection, the IAA found that any societal discrimination the applicant may face on account of him being a Sunni Muslim would not constitute significant harm ([37] at CB 141–CB 142). The IAA also did not accept that he would experience treatment in relation to his depression that would constitute significant harm ([38] at CB 142).
Further, the IAA was satisfied, in the context of complementary protection that it was reasonable for the applicant to relocate to Beirut ([43] at CB 142).
The IAA affirmed the delegate’s decision not to grant the applicant a visa, as the applicant did not meet the criteria under s.36(2)(a) or s.36(2)(aa) ([33] at CB 141 and [44] at CB 143).
The Applicant’s Application
The application to the Court, filed on 4 April 2017, is in the following terms:
“1. The Immigration Assessment Authority committed jurisdictional error in that the decision was based on irrelevant findings.
2. The Immigration Assessment Authority failed to take into account relevant considerations.”
Before the Court
On 19 July 2017, a Registrar of this Court made orders by consent, granting leave for the applicant to file an amended application by 5 October 2017. No amended application was filed by that date or subsequently. These orders also allowed the applicant to file written submissions 14 days before the hearing and the Minister 7 days before the hearing. The Minister filed written submissions on 25 March 2020, the applicant has not filed written submissions.
I note that the applicant was not legally represented when he filed his originating application with the Court on 4 April 2017. On 11 July 2017, a Notice of address for Service was filed on behalf of the applicant indicating that he was now represented by a solicitor (Leonard Jacob of Leonard Jacob Enterprises Pty Ltd/as Sydney Immigration Law code). On 9 March 2020, the Court wrote to the parties advising that the matter had been set down for hearing on 2 April 2020. No reply to this correspondence was received from the applicant’s solicitor.
At the hearing on 2 April 2020, the applicant was assisted by an interpreter in the Arabic language. He explained that he had been unable to contact his solicitor for some time. He confirmed that he had last spoken to his solicitor about three months earlier.
No Notice of Intention to Withdraw or Notice of Withdrawal has been filed by the applicant’s solicitor.
Numerous attempts made by the Court to contact the applicant’s solicitor, by telephone, and email had been unsuccessful in gaining a response.
I took the view that, in the circumstances, the applicant’s solicitor was not in a position to assist or represent the applicant. On that basis I adjourned the final hearing of this matter to 21 April 2020 to enable the applicant to consider his position, or to seek alternative legal representation.
On resumption of the final hearing, the applicant appeared with the assistance of an interpreter in the Arabic language. He confirmed that he had not spoken to, nor been approached by, his lawyer in the three weeks since the last occasion his matter was before the Court.
It appears that the applicant has, without explanation, been abandoned by his lawyer who remains uncontactable by the applicant and by the Court.
Nonetheless the applicant did not indicate, let alone seek, any further adjournment of his matter to further pursue the whereabouts of his lawyer or to seek other advice.
The applicant told the Court that his purpose in making his application to the Court, and his purpose at the Court hearing, was to pursue a visa to remain in Australia. He explained that his life had changed significantly in the seven years since he had come to Australia from Lebanon. He now had a partner and a child and was settled in the community here. He was about to open his own hairdressing business. He maintained this as his stated purpose in pursuing his application to the Court even when the Court made clear it had no power to grant him a visa.
The grounds of the application to the Court, are said on the face of the application, to have been prepared by the applicant himself. However, the applicant explained that he had not drafted the grounds and did not know what they meant.
The applicant stated that he was not a lawyer, however he did not believe the IAA’s decision contained any legal error. He emphasised that his objective in coming to the Court was to obtain a visa to remain in Australia.
Consideration
It is clear, as the Minister submitted, that this Court was not the appropriate forum for the applicant to pursue this objective. It is trite to say that the jurisdiction of the Court is statutorily confined to reviewing the lawfulness of the IAA’s decision (s.476 of the Act). As I sought to emphasise to the applicant this Court has no power to grant him a visa. The relevant issue is whether the IAA fell into jurisdictional error in the making of its decision.
The applicant’s stated significant change in his life circumstances since he arrived in Australia do not reveal legal error in the IAA’s decision. These changed life circumstances, even if accepted by the Court, say nothing about the merits of his claims to protection from serious or significant harm in Lebanon. Nor are the events that have occurred since the IAA’s decision material to revealing jurisdictional error in that decision.
Notwithstanding the applicant’s disavowal of the grounds of the application to the Court, and the, at least implicit, abandonment of these grounds, I did consider whether, they could nonetheless reveal jurisdictional error. Further, given that the applicant’s lawyer did not make himself available, I considered whether they indicated, some legally arguable case which could support giving the applicant a further opportunity (even though not asked for) to pursue other legal advice.
However, nothing in the circumstances of this case as derived from the evidence before the Court, suggests any such argument.
The grounds, in essence, assert that the IAA took into account irrelevant considerations and made “irrelevant” findings, and failed to take into account relevant considerations
It is the case that such failure as asserted, if made out, could reveal jurisdictional error in the IAA’s decision, in circumstances where a decision maker fails to take into account considerations which it is statutorily bound to consider (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40).
However, there is nothing in the evidence before the Court to indicate this to be the case. As set out above, the IAA considered all of the applicant’s claims to protection and made findings that were all reasonably open to it on what was before it, and for which it gave cogent and logical reasons.
I cannot see that in that analysis the IAA failed to consider any matter that it was statutorily bound to consider, or considered any matter it was statutorily bound not to consider.
As also set out above, the applicant claimed that he, a Sunni Muslim, would face harm in his local area in Lebanon which was “…one of the two flashpoint neighbourhoods of recurring sectarian/political violence in Tripoli.” ([12] at CB 137).
The IAA considered the applicant’s claims arising from this, and in this consideration also took into account country information as to the circumstances in Lebanon. The IAA concluded ([19] at CB 138):
“…I am not satisfied that the risk is remote. That is, I find that the applicant, a Sunni Muslim from Bab Al–Tabbaneh faces a small but real chance of persecution from Alawite militias from the adjacent neighbourhood targeting Sunni in his own neighbourhood.”
The IAA understood that ([20] at CB 138):
“…s.5J(1)(c) of the Act requires that the real chance of persecution must relate to all areas of a receiving country and country information indicates that not all regions of Lebanon carry the same level of risk.10”
[Footnote Omitted.]
The IAA’s analysis and explanation for this latter finding is set out subsequently at [21]-[32] at CB 138–CB 141 of its decision record.
As the Minister submits no error is revealed in the IAA’s findings made under s.5J(1)(c) of the Act. The Minister relied on what was found in DFE16v Minister for Immigration and Border Protection [2017] FCCA 308 at [26] that s.5J(1)(c) of the Act does not require the concept of relocation to be referable to considerations of reasonableness.
On the day of the hearing of this matter the Full Federal Court handed down judgment in FCS17v Minister for Home Affairs [2020] FCAFC 68 (“FCS17”) which concerned the proper construction of s.5J(1)(c) of the Act. The question of whether the requirement of reasonableness was a qualifying concept in relation to that section was considered. The Court found that the reference in s.5J(1)(c) of the Act to “…all areas of a receiving country is not qualified by a criterion of reasonableness” (FCS17 and at [81], and see also [73]–[75] and [78] per White and Colvin JJ).
I agree with the Minister that the IAA properly focused on the relevant statutory test in the context of the consideration of serious harm to which the applicant may be exposed in the entirety of Lebanon.
For the sake of completeness I note that one sentence in the IAA’s analysis of a well-founded fear of persecution required some focus. At [32] the IAA stated (CB 140–CB 141):
“32. I am not satisfied that the applicant would face a real chance of persecution in Beirut on the basis of his Sunni religion, even taking into account that it could become known that he is from Bab Al-Tabbaneh. I am not satisfied that he would not be perceived as a threat to Hezbollah or that he faces a real chance of persecution from Hezbollah nor from any other militia outside of Bab Al-Tabbaneh and Jabal Mohsen in Tripoli. Given these factors and the information from DFAT indicating that Sunnis can resettle safely within Beirut and that returnee asylum seekers are not susceptible to discrimination and violence and my findings on the applicant’s claims about religious discrimination and his lifestyle and taking into account his mental health, I am not satisfied that the applicant’s circumstances, individually or cumulatively, lead to a well-founded fear of persecution in Beirut in the reasonably foreseeable future upon return.”
[Emphasis Added.]
The use of the double negative (“not”) as it appears in the second sentence (as set out above) results in the statement that the IAA was satisfied that the applicant would be perceived as a threat to Hezbollah.
IAA decisions however are meant to be read fairly and contextually. It is clear given the analysis that precedes this paragraph, and importantly [23] (CB 139), and the entirety of [32] (CB 140–CB 141), that what the IAA meant, in spite of its infelicitous use of the double negative, was that it was satisfied that the applicant would not be perceived as a threat to Hezbollah. When read fairly therefore no legal error arises from [32] of its decision record.
In relation to complementary protection the IAA understood that it needed to consider the reasonableness of relocation ([39] at CB 142):
“39. In considering whether it would be reasonable for the applicant to relocate to Beirut where he would not face a real risk of significant harm I have taken into account the country information that was before the delegate and the applicant’s personal circumstances.”
In this assessment the IAA took into account a number of different elements including the applicant’s religion, his ethnic and religious community links, the location of his family, education, training and mental health. The IAA’s approach was consistent with relevant authority (SZATV v Minister for Immigration and Citizenship [2007] HCA 40). It considered each of the applicant’s arguments, or objections to, as to why he could not reasonably relocate away from his local area (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 at [124]). The IAA’s findings were all reasonably open to it on the material before it. No legal error is revealed.
Conclusion
The grounds of the application, and the applicant’s submissions, do not reveal jurisdictional error in the IAA’s decision. Nor can I otherwise see any such error. Essentially, while the IAA found that there was a risk of harm to the applicant if he were to return to his local area, he could relocate, and in relation to complementary protection could reasonably do so, to another part of Lebanon. In the circumstances it is appropriate to dismiss the application to the Court. I will make that order.
Postscript
As set out above, the applicant’s stated objective in pursuing judicial review was to obtain a visa to remain in Australia.
While the matter was before the Court the applicant did have the benefit of legal representation since July 2017 to the end of 2019. While his lawyer has not made himself available in recent months, the applicant, on his own submission to the Court, spoke to his lawyer at the end of 2019. In these circumstances, the applicant would have had the opportunity to have had explained to him the purpose of pursuing judicial review of the IAA’s decision.
In any event, if the applicant’s circumstances have changed significantly in the ways he described before the Court, he should consider approaching the Minister’s Department to properly consider any realistic options that may be available to him.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 April 2020
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