BMG15 v Minister for Immigration
[2016] FCCA 710
•22 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMG15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 710 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Lebanon – applicant disbelieved in part and his remaining fears found not to be well-founded – numerous errors alleged – whether the Tribunal gave proper consideration to country information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.477 |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 197 ALR 389; 73 ALD 321; Khan v Minister for Immigration Affairs (1987) 14 ALD 291 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | BMG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2044 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Respondents: | Ms M Stone of DLA Piper |
ORDERS
The application as amended by leave on 1 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2044 of 2015
| BMG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 12 June 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is a male citizen of Lebanon born on 25 January 1987. He arrived in Australia on 25 August 2010.
The applicant applied for a protection (Class XA) visa on 12 June 2013.[1] His claims were set out in a statutory declaration accompanying the application.[2] The application was refused on 17 June 2014[3] by a delegate of the Minister.
[1] Court Book (CB) 2
[2] CB 31
[3] CB 56
The applicant claimed to fear harm in Lebanon on the basis of his religion as a Sunni Muslim, and his political opinion. He claimed that, since the beginning of the Syrian uprising, he had been supporting the Syrian people through writing on social media and online forums. He also claimed that he regularly donated time and money to charity and aid organisations supporting displaced refugees in Lebanon. The applicant claimed that, whilst he supported the Syrian uprising, he was also opposed to Sunni radicalisation, and that he feared he would be targeted by the Hezbollah and other militant groups as a result.
The applicant applied to the Tribunal for review of the delegate's decision on 11 July 2014.[4]
[4] CB 70
The applicant gave oral evidence before the Tribunal on 6 March 2015.
Prior to hearing, the Tribunal received a statutory declaration from the applicant dated 4 March 2015.[5] The statutory declaration expanded upon the applicant’s claims for protection in light of the situation in north Lebanon and the Bekaa regions, which the applicant stated had significantly deteriorated. The statutory declaration also stated that the Al Nusra Front and ISIS had declared the Lebanese military as their enemies and had applied a fatwa on all Lebanese military personnel, as well as their family members.
[5] CB 95
The decision of the Tribunal
The Tribunal found that the applicant did not face a real chance of serious harm or a real risk of significant harm on the basis of his actual or imputed political opinion:[6]
a)the Tribunal did not accept that the applicant had ever made political comments online that had been critical of the Syrian government or Hezbollah or any other group, or that he had ever been threatened by anyone for so doing.[7] The Tribunal also did not accept that the applicant was of adverse interest to anyone or that he would wish to make any political comments upon return to Lebanon;[8]
b)the Tribunal accepted that the applicant had attended “a couple of events of the Future Movement in Melbourne”, but did not accept that the applicant was a supporter of this political group as claimed;[9]
c)the Tribunal found that, even if the applicant had provided donations to the Future Movement and the Al Huda group in Australia, such minor involvement in non-political matters would not lead to the applicant having an adverse profile with any groups inside Lebanon.[10]
[6] CB 115, [31] - [32]
[7] CB 115, [28]
[8] CB 115, [28]
[9] CB 115, [29]
[10] CB 115, [30]
Based on the applicant’s individual circumstances and available country information, the Tribunal found that the applicant did not face a real chance of serious harm or a real risk of significant harm on the basis of his religion as a Sunni Muslim.[11]
[11] CB 116, [33] - [36]
With respect to the applicant’s claim to fear harm as a result of his father’s former military involvement and his brothers’ current military involvement, the Tribunal found that the applicant did not face a real chance of serious harm or a real risk of significant harm.[12]
[12] CB 117, [39] - [40]
The Tribunal accepted that the applicant’s father served in the Lebanese military and that the applicant’s brothers were also in the military.[13] However, the Tribunal found that the applicant’s “vague” evidence regarding the nature and frequency of threats that his family had faced detracted from the credibility of his claims.[14]
[13] CB 116, [37]
[14] CB 116, [37]
In respect of the applicant’s claim to fear harm from ISIS, Al Nusra or any Sunni radicals for reason of his religion or his actual or imputed political opinion, the Tribunal found that the applicant did not face a real chance of serious harm or a real risk of significant harm.[15]
[15] CB 117, [43] - [44]
The Tribunal rejected the applicant’s claim that five of his friends had been recently kidnapped and killed by Sunni extremists in separate incidents.[16] The Tribunal found that it was farfetched and not credible that five families would not report the kidnapping of their sons if such events had actually taken place.[17]
[16] CB 117, [42]
[17] CB 117, [42]
The Tribunal went on to consider the applicant’s claims cumulatively, and concluded that the applicant did not face a real chance of serious harm or a real risk of significant harm.[18]
[18] CB 118, [45] - [46]
The present proceedings
These proceedings began with a show cause application filed on 20 July 2015. The applicant now relies upon an amended application tendered in court on 1 April 2016. The grounds in that amended application are:
Ground 1: Procedural Fairness
1. The second respondent failed to make a finding on a substantial, clearly articulated argument relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.
Ground 2: Jurisdictional Error
2. Alternatively, the second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
Ground 3: Relevant Considerations
3. The second respondent failed to take into account relevant considerations when making the decision to uphold the decision by the AAT to affirm the decision by the delegate to the Minister refuse the applicant a protection visa.
Ground 4: No Evidence
4.There was an insufficient logical or evidentiary basis between the reasons for the decision and the material relied upon for the decision.
Particulars
(a) Personal Details
5. At [22] of the decision record, the applicant was born in 1987 in Hrar, from the Akkar region of the Lebanese Republic, (Lebanon) and is a moderate Sunni Muslim.
(b) Protection Claims
6. The applicant claims protection in the Commonwealth of Australia due to well founded fear due to his actual or imputed political opinion, his membership of a social group or religious beliefs, and a real risk harm including death, torture, inhuman or degrading treatment. In particular:
a) At [22] of the decision record, since the start of the Syrian civil war, the applicant has actively supported the Syrian people and opposed the Al Assad regime and Hezbollah by disseminating his political opinion through electronic political forums; by supporting aid organisations for displaced refugees in Lebanon and by making financial contributions to charities and aid groups. The applicant vehemently opposes the radicalization of his people and has been increasingly vocal in voicing his opposition.
b) At [23], the applicant's opinion has been met with threats and accusations of being a traitor to the Sunni faith. The threats have been coming mainly during his blogging activities. The applicant fears that if he returns to Lebanon and continues to openly criticise radical Sunnis, Hezbollah and other militant groups he will be harmed.
c) At [24], Sunni militants including ISIS and the Al Nusra Front continue to battle the Lebanese military in the Bekaa region and on the outskhis of Arsal. Sunni militants are attacking the Lebanese military in Tripoli and the Akkar region. Moderate Sunnis and those who oppose Sunni militants are increasingly being targeted for kidnapping, exto1iion and execution. They are also threatening to take control of isolated villages and regions in n01ih and eastern Lebanon including his own village of Hrar in Akkar region.
d)At [25], the applicant claims that the Akkar region is predominately Sunni and radical groups are gaining popularity. From his village, 30 young men have enlisted with ISIS and Al Nusra Front. These organisations have declared a fatwa on all Lebanese military personnel as well as their family members. Both the applicant's brothers are members of the military. His parents and sister relocated permanently to Tripoli, six months ago after they received threats from militants. His mother and sister have been threatened with rape. His father is a retired military officer who used to work for military intelligence. His father is well known throughout northern Lebanon. His father is targeted by those radicals and the applicant fears he will be targeted too.
(c)Sectarian Violence in the Akkar Province – Country Information
7. At [33], the second respondent erred by finding that:
DFAT have commented that there is little evidence to suggest that non-militarised Sunnis are at risk from sectarian violence in Akkar province. The Tribunal has not identified any reports of Sunnis being targeted in Akkar province by Hezbollah or anyone else since the publication of the DFAT report. DFAT also commented that Hezbollah has not targeted Sunnis civilians in general’ - citing the ‘Department of Foreign Affairs and Trade, DFAT Country Report Lebanon, 25 February 2014.
8. To the contrary, the Tribunal had the following country information before it.
(i) Department of Foreign Affairs and Trade, DFAT Country Report Lebanon, 25 February 2014.
9. At page 5 [2.21]:
Sectarian violence flared regularly in 2013, but has remained limited to Tripoli and Akkar Province in the North, Beka’a Governorate, parts of Beirut, and Saida in the South Governorate.
10. At page 6 [2.24]:
Major armed groups active in Lebanon at present include:
·The Arab Democratic Party and supporting militia, which represents the interests of Alawites in Lebanon. It has been active in sectarian violence in Tripoli and Akkar Province in the North Governorate.
·Salafi and Sunni extremist groups, which are generally active in the poorer Sunni regions of Lebanon, including Tripoli, the Akkar and Denniyah Districts in North Governorate, as well as Saida in South Governorate and in parts of the Beka’a Governorate;
11. At page 6 [2.26};
Security in the city of Tripoli and in Akkar Province is poor.
12. At page 16 [3.68]:
According to a range of DFAT contacts, Syrian advances in both areas have forced more Syrian opposition fighters and activists into Lebanese territory, particularly in Arsal in Beka’a Governorate and Akkar Province in North Governorate.
13. At page 17 [3.71]:
In summary, DFAT assesses that members of communities providing support to Syrian refugee communities are at a low risk of violence, however those sheltering Syrian opposition fighters in border areas are at a moderate to high risk. In practice, this is only likely to occur in Akkar Province in North Governorate and the northern and north-eastern parts of Beka’a Governorate, close to the border with Syria.
14. At page 17 [3.76]:
DFAT therefore assesses as credible reports that Syrian opposition fighters have been targeted with airstrikes, rocket and mortar attacks inside Lebanese territory by Syrian Government forces and Hizballah. However, this type of military targeting is limited geographically to areas close to the border with Syria, including Akkar Province in North Lebanon and the north and northeast of Beka’a Governorate.
(ii)DIAC, Standard Country Advice - RRT, Lebanon “LBN42665 - Salafist groups in Lebanon - Kidnappings - Akkar- Sunnis, 13 September 2013.
15. At page 2, [2]:
Three sources were located stating that militant Salafist groups are present in Akkar and North Lebanon… NOW Lebanon states that the detention of an anti-Assad activist in Tripoli in May 2012 and the shooting of an anti-Assad Sunni cleric by the army in Akkar in the same month ‘further mobilized the Salafists in North Lebanon’. Andrew Kirkby, writing in 2013 for the Journal of Defense Studies and Resource Management states that in Akkar, ‘Salafist networks give refuge and send fighters to the armed Syrian opposition’. A May 2012 news article from Xinhua cites comments from Syria’s ambassador to the UN that Salafist groups are ‘using the north of Lebanon, including Akkar, to stockpile weapons and provide safe haven to members of the Muslim Brotherhood and Al-Qaida, who are launching hit-and-run operations in Syria.
16. At page 4[2]:
Some reports state that Salafist groups have gained support from the wider Lebanese Sunni community in recent years as a result of a power ‘vacuum’ left by a lack of strong political leadership from moderate Sunnis. Alternatively, one source states that recent clashes between a prominent Salafist and the Lebanese Armed Forces in According to Slim, Salafist groups are gaining momentum in the mainstream Sunni community due to a ‘leadership vacuum in the moderate Sunni camp that is mainly represented by the Future Movement’, whose leader, Saad Hariri, lives outside Lebanon. Slim adds that Salafis’ appeal to the Sunni community is due to their ‘wanting to restore Sunnis’ dignity from the humiliation they suffered in May 2008 when Hezbollah launched a military incursion into the streets of Beirut’.
Kirkby agrees that a ‘lack of a credible, moderate Sunni leadership has created a vacuum [in Lebanon] which Salafists are filling’. Further to this, Salafists’ appeal to the Sunni community lies in Sunni gains in the Syrian conflict, which have ‘led to renewed sense of empowerment and militancy’.
A January 2013 article from the Global Post states that well-known Salafist critic of Hezbollah Sheikh Ahmad al-Assir’s rising popularity is ‘now threatening to turn a segment of Lebanon’s primarily moderate Sunni population more extreme’.
17. At 5 [1]:
…reports were found indicating an increased lawlessness in areas of North Lebanon, as well as incidents where armed groups or local residents had overpowered the Lebanese Armed Forces (LAF) or had erected roadblocks and used them to target individuals on a sectarian basis.
The International Crisis Group (ICG) reported in 2012 that heightened insecurity and state impotence throughout Lebanon is ‘leading many to take matters into their own hands’, including erecting ‘roadblocks on critical arteries, such as the airport road, that are erected almost daily by citizens angered by the repeated kidnappings [and] arrests’.
A June 2012 article from Al Monitor similarly states that:
There are no indications that suggest the presence of [government] security or military elements in Akkar, a northern Lebanese district bordering Syria. Instead, gunmen have established checkpoints and have been abducting people on the basis of their sect.
18. At 7 [3]:
Reports note an increase in kidnappings in the border areas of Lebanon in 2012 and 2013, including in Akkar. The motivations for these kidnappings described in reports include ransom and retaliation for the kidnapping of relatives, and the victims are Sunnis, Shia’s, Syrian Alawites and other foreign nationals.
The International Crisis Group (ICG)… notes that Akkar in particular has seen numerous kidnapping cases, stating that ‘Residents of villages In Akkar and the Bekaa recount numerous such incidents, many of which go unreported, involving Lebanese and Syrians, Sunnis, Alawites and Shiites’
A 2013 report by Human Rights Watch (HRW) notes that there have been a number of kidnappings in the border regions of Lebanon. HRW states that in many cases they are ‘retaliatory kidnappings, prompted by alleged detentions and kidnappings of…relatives by the Syrian government forces and armed opposition groups’. Those kidnapped include Lebanese Sunnis and Shi’as, Syrian Alawites and Turkish nationals.
(iv) Al Arabiya News, Lebanon pulled into war with ISIS, 18 October 2014
19. At page 2, second last paragraph that:
Lebanese army commander Jean Kahwaji said in comments published this week that the militants from Syria want to ignite civil war and create a passage to Lebanon's coastline by linking the Syrian Qalamoun mountains with Arsal on the border and the northern Lebanese town of Akkar, an impoverished Sunni area.
(d) The Applicant’s Family connection with the Lebanese Military
20. At [37], the second respondent accepted on the one hand that the ‘applicant's father served in the Lebanese military for 28 years (in intelligence) and has been retired for four years’, that the ‘applicant's brothers are in the military as well’ and that the parents moved from Hrar to Tripoli…’
21. However, at [38], the second respondent erred by finding that the ‘Tribunal has not identified any reports of ex-military officers or family members of military officers being targeted in Akkar province (where Hrar is located) by radical Sunni groups such as ISIS an Al Nusra or anyone else.’
22. To the contrary, the Tribunal had the following country information before it.
(i) Al Arabiya News, Lebanon pulled into war with ISIS, 18 October 2014
23. At page 2, [8]:
The ISIS threat first came to Lebanon in August, two months after the group's summer blitz in which it seized large swaths of territory in Iraq and Syria. In a surprise attack, Islamic State group and Nusra Front militants crossed over from Syria and overran the predominantly Sunni Lebanese border town of Arsal, hitting Lebanese army positions and killing nearly 20 soldiers.
After weeklong clashes, the militants pulled back to mountain caves near Syria's border, taking more than 20 Lebanese soldiers and policemen with them.
ISIS fighters have since beheaded two Lebanese soldiers. Nusra Front militants have shot dead a third. In return for remaining hostages, they have issued various demands, including the withdrawal of Hezbollah troops from Syria, and the release of Islamists from Lebanese prisons.
(e) ISIS and Al Nusra Extremists
24. At [41], the second respondent erred by finding that the ‘Tribunal has not identified any reports of Sunni moderates being targeted or harmed in Lebanon by Sunni radical groups such as ISIS and Al Nusra.’
25. The second respondent specifically stated at the third sentence of [41], that ‘I have identified a report of ISIS and Al Nusra fighting the Lebanese army in the border town of Arsal and the eastern province of Bekaa however these are a considerable distance from the applicant's home town of Hrar in Akkar province’ citing a report by the Al Arabiya News dated 18 October 8 2014.
26. However, the second respondent overlooked the second last paragraph of page 2 of that report, which observed:
Lebanese army commander Jean Kahwaji said in comments published this week that the militants from Syria want to ignite civil war and create a passage to Lebanon's coastline by linking the Syrian Qalamoun mountains with Arsal on the border and the northern Lebanese town of Akkar, an impoverished Sunni area.
(g) Missing Friends
27. At [42], the second respondent observed that the ‘applicant claimed at the hearing that in the previous five months, five of his friends had been kidnapped and killed by Sunni extremists in separate incidents but this had not been reported in the news and that their families had not reported it.’
28. However, the second respondent did ‘not accept this claim’ and failed to take into account the report by Al Arabiya News dated 18 October 2014, which supported the applicant’s claims. In particular, at page 4 [2] of that report, which observed:
Moreover, the government faces escalating protests by families of the captive soldiers and policemen who have blocked roads and set up protest tents including several pitched last week near the government Building that blocked traffic in Beirut’s commercial center they families accuse the government of not doing enough to secure the freedom of their loved ones. (errors in original)
The applicant also tendered an Application in a Case supported by an affidavit seeking the Court’s leave to rely upon the amended application. The granting of that leave was not opposed. The original application was filed three days outside the period prescribed by s.477(1) of the Migration Act 1958 (Cth) (Migration Act). The applicant sought an extension of time and relied on an affidavit filed on 22 July 2015 in which he explained the circumstances. The Minister opposed an extension of time but I ordered that time be extended pursuant to s.477(2) of the Migration Act, noting that only one working day had passed after the expiry of the prescribed period, the applicant had provided an explanation and his counsel had certified that the application enjoyed a reasonable prospect of success.
With the agreement of the parties, immediately following the grant of the extension of time, the amended application was heard on a final basis. For that purpose I have before me as evidence the court book filed on 7 September 2015 and a bundle of country information[19] available to the Tribunal. Both the applicant and the Minister made oral and written submissions.
[19] Exhibit A1
Consideration
The central issue raised in this matter is whether the Tribunal failed to give genuine, proper or realistic consideration to the country information before it, in particular:
a)the Department of Foreign Affairs and Trade (DFAT) country report on Lebanon dated 25 February 2014;
b)a DIAC standard country advice – Lebanon, LBN42665 - Salafist groups in Lebanon – kidnappings – Akkar – Sunnis, dated 13 September 2013; and
c)Al-Arabiya news item, Lebanon called into war with ISIS dated 18 October 2014.
In essence, the applicant contends that the Tribunal made selective use of the country information referred to and that, when examined in detail, the country information supported the applicant’s claims. The applicant raises the following particular contentions.
Ground 1: Relevant considerations
With regard to Ground 1, the Tribunal is said to have failed to take into account relevant considerations, in the exercise of power, relying on the authority in Minister for Aboriginal Affairs v Peko Wallsend Ltd.[20]
[20] (1986) 162 CLR 24
In Khan v Minister for Immigration,[21] Gummow J said that the decision-maker “was required to give proper, genuine and realistic consideration to the merits of the case.”
Ground 2: No evidence – insufficient connection between the decision and the materials relied upon to make the decision
[21] (1987) 14 ALD 291
With regard to Ground 2, the applicant contends that there was an insufficient logical or evidentiary basis between the reasons for the decision and the material relied upon for the decision.[22]
[22] Minister for Immigration v SZMDS (2010) 240 CLR 611; 266 ALR 367 ; 115 ALD 248 ; [2010] HCA 16 at [130]–[131]; [133]
As Mason CJ observed in Australian Broadcasting Tribunal v Bond,[23] the law has always recognized that the existence or otherwise of evidence to support a factual conclusion is a question of law. So the making of findings and the drawing of inferences in the absence of evidence will constitute an error of law. It may also be accepted that the failure by the Tribunal to consider corroborative evidence might constitute jurisdictional error.[24]
[23] (1990) 170 CLR 321 at [355]-[356]
[24] Minister for Immigration v SZRKT(2013) 212 FCR 99
Ground 3: Jurisdictional error – constructive failure to accord procedural fairness
With regard to Ground 3 and as a consequence of Grounds 1 and 2, the applicant contends the Tribunal failed to make a finding on substantial, clearly articulated arguments relying upon established facts and that failure amounted to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.[25]
Ground 4: Jurisdictional error – failure to deal with the applicant’s claims or integer of those claims
[25] Dranichnikov v Minister for Immigration (2003) 197 ALR 389; 73 ALD 321; [2003] HCA 26 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]
With regard to Ground 4 and as a consequence of Grounds 1 and 2, the applicant claims that the Tribunal committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant’s claims, or an integer of his claims.
As Black CJ, French and Selway JJ observed at [63] in NABE v Minister for Immigration:[26]
It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
[26] (No 2) (2004) 144 FCR 1
Similarly, the nature of the review function was described by Allsop J (with whom Spender J agreed) in Htun v Minister for Immigration:[27]
... The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.
[27] (2001) 194 ALR 244; [2001] FCA 1802 at [42]
It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued, its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.[28]
The particulars
[28] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [63]
Sectarian violence in the Akkar Province – country information
At [33] of its decision, the Tribunal is said to have erred by finding that:[29]
DFAT have commented that there is little evidence to suggest that nonmilitarised Sunnis are at risk from sectarian violence in Akkar province. The Tribunal has not identified any reports of Sunnis being targeted in Akkar province by Hezbollah or anyone else since the publication of the DFAT report. DFAT also commented that Hezbollah has not targeted Sunnis civilians in general.
[29] citing the Department of Foreign Affairs and Trade, DFAT Country Report Lebanon, 25 February 2014
The applicant points out that the Tribunal had the following country information before it.
(a) Department of Foreign Affairs and Trade, DFAT Country Report Lebanon, 25 February 2014
At page 5 [2.21]:
Sectarian violence flared regularly in 2013, but has remained limited to Tripoli and Akkar Province in the North, Beka’a Governorate, parts of Beirut, and Saida in the South Governorate.
At page 6 [2.24]:
Major armed groups active in Lebanon at present include:
·The Arab Democratic Party and supporting militia, which represents the interests of Alawites in Lebanon. It has been active in sectarian violence in Tripoli and Akkar Province in the North Governorate.
·Salafi and Sunni extremist groups, which are generally active in the poorer Sunni regions of Lebanon, including Tripoli, the Akkar and Denniyah Districts in North Governorate, as well as Saida in South Governorate and in parts of the Beka’a Governorate;
At page 6 [2.26]:
Security in the city of Tripoli and in Akkar Province is poor.
At page 16 [3.68]:
According to a range of DFAT contacts, Syrian advances in both areas have forced more Syrian opposition fighters and activists into Lebanese territory, particularly in Arsal in Beka’a Governorate and Akkar Province in North Governorate.
At page 17 [3.71]:
In summary, DFAT assesses that members of communities providing support to Syrian refugee communities are at a low risk of violence, however those sheltering Syrian opposition fighters in border areas are at a moderate to high risk. In practice, this is only likely to occur in Akkar Province in North Governorate and the northern and north-eastern parts of Beka’a Governorate, close to the border with Syria.
At page 17 [3.76]:
DFAT therefore assesses as credible reports that Syrian opposition fighters have been targeted with airstrikes, rocket and mortar attacks inside Lebanese territory by Syrian Government forces and Hizballah. However, this type of military targeting is limited geographically to areas close to the border with Syria, including Akkar Province in North Lebanon and the north and northeast of Beka’a Governorate.
(b) DIAC, Standard Country Advice - RRT, Lebanon LBN42665 - Salafist groups in Lebanon - Kidnappings - Akkar- Sunnis, 13 September 2013
At page 2 [2]:
Three sources were located stating that militant Salafist groups are present in Akkar and North Lebanon… NOW Lebanon states that the detention of an anti-Assad activist in Tripoli in May 2012 and the shooting of an anti-Assad Sunni cleric by the army in Akkar in the same month ‘further mobilized the Salafists in North Lebanon’. Andrew Kirkby, writing in 2013 for the Journal of Defense Studies and Resource Management states that in Akkar, ‘Salafist networks give refuge and send fighters to the armed Syrian opposition’. A May 2012 news article from Xinhua cites comments from Syria’s ambassador to the UN that Salafist groups are ‘using the north of Lebanon, including Akkar, to stockpile weapons and provide safe haven to members of the Muslim Brotherhood and Al-Qaida, who are launching hit and-run operations in Syria.
At page 4 [2]:
Some reports state that Salafist groups have gained support from the wider Lebanese Sunni community in recent years as a result of a power ‘vacuum’ left by a lack of strong political leadership from moderate Sunnis. Alternatively, one source states that recent clashes between a prominent Salafist and the Lebanese Armed Forces in Sidon have adversely affected Salafist popularity amongst moderate Sunnis.
According to Slim, Salafist groups are gaining momentum in the mainstream Sunni community due to a ‘leadership vacuum in the moderate Sunni camp that is mainly represented by the Future Movement’, whose leader, Saad Hariri, lives outside Lebanon. Slim adds that Salafis’ appeal to the Sunni community is due to their ‘wanting to restore Sunnis’ dignity from the humiliation they suffered in May 2008 when Hezbollah launched a military incursion into the streets of Beirut’.
Kirkby agrees that a ‘lack of a credible, moderate Sunni leadership has created a vacuum [in Lebanon] which Salafists are filling’. Further to this, Salafists’ appeal to the Sunni community lies in Sunni gains in the Syrian conflict, which have ‘led to renewed sense of empowerment and militancy’.
A January 2013 article from the Global Post states that well-known Salafist critic of Hezbollah Sheikh Ahmad al-Assir’s rising popularity is ‘now threatening to turn a segment of Lebanon’s primarily moderate Sunni population more extreme’.
At 5 [1]:
…reports were found indicating an increased lawlessness in areas of North Lebanon, as well as incidents where armed groups or local residents had overpowered the Lebanese Armed Forces (LAF) or had erected roadblocks and used them to target individuals on a sectarian basis.
The International Crisis Group (ICG) reported in 2012 that heightened insecurity and state impotence throughout Lebanon is ‘leading many to take matters into their own hands’, including erecting ‘roadblocks on critical arteries, such as the airport road, that are erected almost daily by citizens angered by the repeated kidnappings [and] arrests’.
A June 2012 article from Al Monitor similarly states that:
There are no indications that suggest the presence of [government] security or military elements in Akkar, a northern Lebanese district bordering Syria. Instead, gunmen have established checkpoints and have been abducting people on the basis of their sect.
At 7 [3]:
Reports note an increase in kidnappings in the border areas of Lebanon in 2012 and 2013, including in Akkar. The motivations for these kidnappings described in reports include ransom and retaliation for the kidnapping of relatives, and the victims are Sunnis, Shia’s, Syrian Alawites and other foreign nationals.
The International Crisis Group (ICG)… notes that Akkar in particular has seen numerous kidnapping cases, stating that ‘Residents of villages in Akkar and the Bekaa recount numerous such incidents, many of which go unreported, involving Lebanese and Syrians, Sunnis, Alawites and Shiites’
A 2013 report by Human Rights Watch (HRW) notes that there have been a number of kidnappings in the border regions of Lebanon. HRW states that in many cases they are ‘retaliatory kidnappings, prompted by alleged detentions and kidnappings of…relatives by the Syrian government forces and armed opposition groups’. Those kidnapped include Lebanese Sunnis and Shi’as, Syrian Alawites and Turkish nationals.
(c) Al Arabiya News, Lebanon pulled into war with ISIS, 18 October 2014
At page 2, second last paragraph that:
Lebanese army commander Jean Kahwaji said in comments published this week that the militants from Syria want to ignite civil war and create a passage to Lebanon's coastline by linking the Syrian Qalamoun mountains with Arsal on the border and the northern Lebanese town of Akkar, an impoverished Sunni area.
The applicant’s family connection with the Lebanese military
At [37], the Tribunal accepted on the one hand that the “applicant's father served in the Lebanese military for 28 years (in intelligence) and has been retired for four years”, that the “applicant's brothers are in the military as well” and that the parents moved from Hrar to Tripoli.
However, at [38], the Tribunal is said to have erred by finding that the “Tribunal has not identified any reports of ex-military officers or family members of military officers being targeted in Akkar province (where Hrar is located) by radical Sunni groups such as ISIS an Al Nusra or anyone else.”
The applicant points out that the Tribunal had the following country information before it.
(a) Al Arabiya News, Lebanon pulled into war with ISIS, 18 October 2014
At page 2 [8]:
The ISIS threat first came to Lebanon in August, two months after the group's summer blitz in which it seized large swaths of territory in Iraq and Syria. In a surprise attack, Islamic State group and Nusra Front militants crossed over from Syria and overran the predominantly Sunni Lebanese border town of Arsal, hitting Lebanese army positions and killing nearly 20 soldiers.
After weeklong clashes, the militants pulled back to mountain caves near Syria's border, taking more than 20 Lebanese soldiers and policemen with them.
ISIS fighters have since beheaded two Lebanese soldiers. Nusra Front militants have shot dead a third. In return for remaining hostages, they have issued various demands, including the withdrawal of Hezbollah troops from Syria, and the release of Islamists from Lebanese prisons.
ISIS and Al Nusra extremists
At [41], the Tribunal is said to have erred by finding that the “Tribunal has not identified any reports of Sunni moderates being targeted or harmed in Lebanon by Sunni radical groups such as ISIS and Al Nusra.”
The Tribunal stated at the third sentence of [41], that “I have identified a report of ISIS and Al Nusra fighting the Lebanese army in the border town of Arsal and the eastern province of Bekaa however these are a considerable distance from the applicant's home town of Hrar in Akkar province” citing a report by the Al Arabiya News dated 18 October 2014.
However, the Tribunal is said to have overlooked the second last paragraph of page 2 of that report, which observed:
Lebanese army commander Jean Kahwaji said in comments published this week that the militants from Syria want to ignite civil war and create a passage to Lebanon's coastline by linking the Syrian Qalamoun mountains with Arsal on the border and the northern Lebanese town of Akkar, an impoverished Sunni area.
Missing friends
At [42], the Tribunal observed that the “applicant claimed at the hearing that in the previous five months, five of his friends had been kidnapped and killed by Sunni extremists in separate incidents but this had not been reported in the news and that their families had not reported it.”
However, the Tribunal did “not accept this claim” and is said to have failed to take into account the report by Al Arabiya News dated 18 October 2014, which the applicant asserts supported his claims. In particular, page 4 [2] states:
Moreover, the government faces escalating protests by families of the captive soldiers and policemen who have blocked roads and set up protest tents including several pitched last week near the government Building that blocked traffic in Beirut’s commercial center they families accuse the government of not doing enough to secure the freedom of their loved ones.
In my opinion, the applicant’s contentions are not made out. A careful examination of the Tribunal’s reasons and the country information reveals that the Tribunal’s reasoning was not at odds with that information. The country information before the Tribunal was open to interpretation and, in my opinion, the conclusions reached by the Tribunal were open to it.
The applicant asserts first that it was not open on the country information before the Tribunal for the Tribunal to conclude as it did at [33] that “the Tribunal has not identified any reports of Sunnis being targeted in Akkar province by Hezbollah or anyone else since the publication of the DFAT report [dated 25 February 2014]”.
I accept the Minister’s contention that the Tribunal’s finding was open to it. I further observe the following with respect to the specific items of country information relied upon by the applicant:
a)the country information extracted above at [31]-[36] is the same DFAT report to which the Tribunal was referring at [33], and accordingly cannot be pointed to as information which contradicted or post-dated that report;
b)the country information extracted above at [37]-[39] is dated 13 September 2013 and accordingly pre-dated the DFAT report relied upon by the Tribunal;
c)the country information extracted above at [40] is dated 18 October 2014 but is merely a general strategic assessment.
More generally the Tribunal was not stating at [33] that there was no evidence of a risk to non militarised Sunnis from sectarian violence in the Akkar province. Clearly, there was some evidence of that in the country information but it was not recent and the Tribunal was entitled to rely on the DFAT report, which downplayed the risk to those not actively involved in the sectarian conflict.
Secondly, the applicant alleges that it was not open to the Tribunal to find as it did at [38] that “the Tribunal has not identified any reports of ex-military officers or family members of military officers being targeted in Akkar province (where Hrar is located) by radical Sunni groups such as ISIS an[d] Al Nusra or anyone else”. Again I accept that the Tribunal’s finding was open to it.
The country information extracted above at [44] does not contain information that ex-military officers or family members of military officers were targeted, and instead refers to "Lebanese soldiers". There is also no evidence that the location of the incident being reported in this information is in Akkar province.
Thirdly, the applicant alleges that it was not open to the Tribunal to find as it did at [41] that “the Tribunal has not identified any reports of Sunni moderates being targeted or harmed in Lebanon by Sunni radical groups such as ISIS and Al Nusra”. I find however that the Tribunal’s finding was open to it.
The country information extracted above at [47] did not relate to the targeting of Sunni moderates, and related instead to fighting between the Lebanese army and ISIS and Al Nusra. Moreover, there is no contradiction between the country information summarised above (that the fighting was occurring a considerable distance from the applicant's home town in Akkar province) and that referred to at [47] (that there was an aim to ignite a civil war and to create a passage to Akkar). There was no suggestion in the country information at [47] that the aim to create a passage to Akkar had been achieved.
Lastly, the applicant alleges that at [42] it was not open to the Tribunal to reject the applicant's claim that his friends had been kidnapped. I disagree.
It was the applicant's claim that the kidnapping of his friends had not been reported in the news and that their families had not reported it. To the extent that the applicant takes issue with this part of the Tribunal’s findings at [42] the Tribunal was merely repeating the applicant's claim.
The applicant does submit that the country information extracted above at [49] supports the proposition that kidnappings occur and not all are reported. While that may be so the Tribunal found it implausible that the kidnapping and killing of five of the applicant’s friends would go unreported. What was implausible was that five kidnappings and murders from a single area over a short period would not be reported by the victims’ families. The country information does not lend any plausibility to the applicant’s claim.
To the extent that the applicant is alleging that the country information extracted above at [49] contradicts the Tribunal's statement at [42] that there is a lack of other reports of Sunni moderates being kidnapped, this cannot be sustained. The country information refers to kidnapping victims who are soldiers and policemen, and does not refer to Sunni moderates. The country information identified a risk to combatants and other officials, not the population generally of moderate Sunnis.
Conclusion
The applicant has failed to establish that the Tribunal decision is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 April 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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