BTM19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 154
•6 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BTM19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 154
File number(s): SYG 1037 of 2019 Judgment of: JUDGE CAMERON Date of judgment: 6 February 2024 Catchwords: MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Visa – Protection Visa – Refusal. Legislation: Migration Act 1958 (Cth) ss 36, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 94
Division: General Number of paragraphs: 18 Date of hearing: 6 February 2024 Place: Sydney Counsel for the Applicant: Applicant in person Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 1037 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BTM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
6 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant is a citizen of Lebanon. On 23 September 2015, he lodged an application for a protection visa with what is now the Department of Home Affairs, alleging that he feared persecution in Lebanon from Sunni Muslim extremists and from others because he was a political activist who supported a particular politician in Lebanon. On 1 July 2016, the applicant’s application was refused by a delegate (Delegate) of the first respondent (Minister). The applicant then applied to the second respondent (Tribunal) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding, the Court cannot re‑hear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth)(Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
At all relevant times the Act provided as follows:
36 Protection visas – criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
BACKGROUND FACTS
The applicant’s claims for protection were made in his application dated 23 May 2019, in his protection visa application filed 23 September 2015, at interview with the delegate in February 2016 and at a Tribunal hearing on 14 March 2019. As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:
6.1 The applicant left Lebanon because he feared for his life. He previously supported Mr Jihad El Samad, a well-known politician from North Lebanon openly. He was “very politically active”, would put up fliers and attended events in support of Mr El Samad.
6.2 It was dangerous for him to continue to live in Lebanon as his opinions were not shared by other Sunnis in North Lebanon. He claimed there were extremists in his region who would “go so far as to attack and harm a person”.
6.3 He received threats from people in his area and was confronted by [individuals] one night who threatened to kill him if he did not stop supporting Mr El Samad. He claimed there were other similar incidents and he feared for his life.
6.4 North Lebanon was rife with sectarian conflict and the security situation was not safe for him to return as he had previously supported Mr El Samad. Supporters of Mr El Samad are known to support Hezbollah and Shiite and it is dangerous to have these views in the region.
6.5 He fears he would suffer physical and mental abuse if he returned and would be harmed by extremist groups, including the Salafists and other Sunni fundamentalists in the region.
6.6 There is a lot of impunity and corruption in Lebanon and he would not be able to obtain adequate protection from the authorities as they have their own political motivations. He is unable to relocate because the security situation in Lebanon has been aggravated by the Syrian crisis.
I adopt that summary.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms, which I also adopt:
7 In light of the applicant’s evidence, the Tribunal accepted that he was a supporter of Mr El Samad prior to his departure from Lebanon. The Tribunal also accepted the applicant attended gatherings and put up posters in support of Mr El Samad during election campaigns. The Tribunal did not accept the applicant was “very politically active” or that he had a political profile of any note or significance in Lebanon. The Tribunal also accepted the applicant’s district, […], was a predominately Sunni district in North Lebanon. The Tribunal accepted the applicant’s evidence that prior to his departure from Lebanon he was verbally abused and threatened with harm by those opposed to Mr El Samad and the March 8 coalition.
8However, the Tribunal was not prepared to accept the applicant faced a real chance or a real risk of serious or significant harm if he returned to Lebanon now or in the reasonably foreseeable future. In making this finding, the Tribunal had regard to the applicant’s evidence that (i) he was not a member of any political party or group; (ii) he had not had any involvement with Mr El Samad or Lebanese politics since his departure from Lebanon in 2009; and (iii) his present views were centred on his wife and children. The Tribunal considered the applicant’s claim that he had been fearful of leaving his parents’ house during his visit to Lebanon in 2014 and would be concerned for the safety of his family if he were to return. The Tribunal balanced this consideration against the fact the applicant did not claim to have experienced any harm or adverse encounters during his visits to Lebanon in 2011 and 2014. The Tribunal also identified that there was no claim before it that the applicant’s parents or siblings had been approached by anyone with the intention of harming them or enquiring about him.
9 On the evidence before it, the Tribunal did not accept there was a real chance or a real risk that the applicant would be subjected to serious or significant harm by Sunnis, Sunni extremists, any group or political party or anyone else for reason of his actual or imputed political opinion, religion or membership of any other particular social group. The Tribunal found there was no persuasive information before it to suggest that the tensions, including sectarian tensions, lack of general security and any instability the applicant may fear was faced by him personally. It was not satisfied that the general security situation in Lebanon would expose him to a real chance of persecution. The Tribunal turned to s 36(2B)(c) and found there was not a real risk the applicant would suffer significant harm in Lebanon as a result of a lack of general security and instability as they are faced by the population generally and not by the applicant personally.
10 After having considered the applicant’s claims, both individually and cumulatively, the Tribunal found there was not a real chance of harm in Lebanon by reason of his race, religion, nationality, political opinion, or membership of any particular social group and that s 36(2)(a) was not met. The Tribunal was also not satisfied s 36(2)(aa) was met.
11 The Tribunal accepted the applicant’s wife’s evidence at the hearing that: she is an Australian citizen; they had been married for three years; they had two infant daughters; and that she had an 18 year old son from a previous marriage who considered the applicant as his father. The Tribunal also acknowledged that the applicant’s unresolved migration status had been taxing on his family. The Tribunal considered the applicant’s request for the Tribunal to refer the matter to the Minister for intervention. After having considered the guidelines relating to the Minister’s discretionary power under s 417 of the Act, the Tribunal decided not to refer the matter. However, it noted that the applicant could still make a request directly to the Minister.
(References omitted)
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
1.The Tribunal does not have probative evidence that I will [sic] be subjected to serious or significant harm by Sunni extremists or others.
2.The Tribunal Member accepted the evidence from my wife that we have been married for three years and that we have two infant daughters as well as a son from previous marriage who considers me as his father yet the Tribunal failed to refer the matter to the Honourable Minister for discretionary power and ignored our compelling and compassionate circumstances.
3.I attach my letter to the Honourable Minister as well as my wife's letter to the honourable Minister and the purpose of lodging this application is to protect my right in case the honourable Minister does not intervene in my case or the Department ignore our correspondence and do not refer our letters to the Minister.
Ground 1
Although the applicant alleged that the Tribunal did not have probative evidence supportive of the conclusion to which it came, it is apparent from the Tribunal’s decision record that it was aware of the evidence propounded by the applicant, most significantly in relation to his allegation that he feared persecution in Lebanon by reason of his political opinions. The Tribunal recorded the applicant’s evidence that at the time of its decision he was no longer engaged with politics in Lebanon, and country information which indicated that people who supported the politician whom the applicant supported had not suffered harm, including at the hands of those who might hold extremist views. Given the evidence before it, it was open to the Tribunal to conclude that the applicant’s claimed fear of persecution in Lebanon was not well‑founded.
Additionally, the first ground of the application appears to suggest that the Tribunal needed evidence proving that the applicant would not be at risk of harm in Lebanon before it could affirm the Delegate’s decision. Such a contention would misunderstand the nature of the Tribunal’s review. It is for an applicant to satisfy the Tribunal that he or she faces a real chance or risk of significant or serious harm in their country of nationality or habitual residence, not for the Tribunal to undertake a rebuttal of such claims.
Ground 2
The final portion of the Tribunal’s decision recorded its disinclination to accept the applicant’s invitation to refer his matter to the Minister for intervention. The applicant did not indicate what power the Tribunal had to make such a referral or, more particularly, any duty it had to consider such a request and possibly act on it.
I also respectfully note what Judge Kendall said in Searle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 94 at [105]-[108]. It was not suggested that that decision was plainly wrong and it is not apparent to me that it is. In the circumstances, I am not persuaded that whatever decision the Tribunal made in relation to the applicant’s invitation to refer the matter to the Minister was a migration decision which this Court has power to review.
Ground 3
The third ground of the application did not point to any circumstance which would amount to jurisdictional error on the Tribunal’s part.
Further Ground
In his written submissions and in his address to the Court today, the applicant has argued that the Tribunal reached an incorrect decision in his case. He said that the decision was wrong and was unfair to him, but in substance those submissions were an invitation to the Court to reconsider the Tribunal’s conclusion as to the merits of his visa application, which it cannot do. In this regard, I also note paragraph 7 of the applicant’s written submissions which said:
7.I continue to rely on the grounds of my application under the migration act and as I am not represented in this Court I ask the honourable Judge to accept that I will be subjected to significant harm by Sunni extremists and I admit that I am no longer involved in Lebanese politics but I am a well known person and if I do return to Lebanon I will be subjected to harm.
In the final paragraph of his written submissions, the applicant also submitted that, “The tribunal decision is not reasonable.” Nothing was advanced in argument which would suggest that the test of legal unreasonableness was satisfied in this case. Consequently, this submission is in substance no more than an expression of disagreement with the conclusion which the Tribunal reached.
In his address to this Court today, the applicant also raised a number of matters of fact that had not been before the Tribunal, whether because they post‑dated its decision or because they were elaborations of his claims and allegations. Matters which were not before the Tribunal do not support a finding of jurisdictional error.
CONCLUSION
For the foregoing reasons, I find that jurisdictional error on the Tribunal’s part has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 28 February 2024
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