BWC15 v Minister for Immigration

[2016] FCCA 2436

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWC15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2436

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to accept and understand the applicant’s claims – whether the Tribunal’s decision was affected by an apprehension of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 424

Cases cited:

NAEH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927

Applicant: BWC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2506 of 2015

Judgment of: Judge Smith

Hearing date: 31 August 2016

Date of Last Submission: 31 August 2016

Delivered at: Sydney

Delivered on: 31 August 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms N. Blake, Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2506 of 2015

BWC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Lebanon who arrived in Australia on 10 September 2013 and lodged an application for a protection visa on 21 October 2013. On 12 August 2014, a delegate of the Minister decided not to grant the applicant a protection visa. The applicant applied to the Refugee Review Tribunal[1] for a review of that decision. On 20 August 2015, the Administrative Appeals Tribunal made a decision to affirm the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. In order to succeed the applicant has to establish that the Tribunal’s decision was affected by jurisdictional error. That means that the Tribunal made some error that affected the exercise of its powers and the fulfilment of its duties under the Migration Act 1958 (Cth).

3. The applicant raises two grounds in support of his application. The first is that the Tribunal Member did not understand his situation and failed to accept the abuse and discrimination that the applicant experienced at work, as well as the fear of harm in Lebanon. The second is that the way in which the Tribunal member conducted the interview was not fair.

Background

1. Before dealing with these grounds it is necessary to set out the applicant’s claims and the way in which the Tribunal dealt with those claims. The applicant’s claims were summarised by the Tribunal in its reasons for decision at [5] - [7], [9] and [11] as set out below:

   [5]The applicant claimed that he was a Shi’a Muslim whose employment as a painter and cleaner required him to work in different suburbs of Beirut, and he faced harassment, criticism and abuse in the Christian and Sunni areas because he was Shi’a.

   [6]He then moved to the dahiyya (southern suburbs of Beirut which are Shi’a-dominated). He thought he would be safe but there were random bombings and many people were killed. On 15 August before he came to Australia there was a major bombing in the area and he nearly lost his life – 18 people were killed and 200 wounded. This had a great impact on him.

   [7]He also experienced discrimination and abuse at work. The political situation in Lebanon is explosive and violent acts can happen at any moment.

   …

   [9]He claimed that if he returned to Lebanon he would be caught up in a bombing. There had been six or seven bombs in recent times; he had missed a bombing by five minutes just before he left Lebanon. He also claimed he owl be kidnapped because he supported groups fighting Islamic state.

   …

   [11]He was asked if all one and a half million Shi’a in Lebanon were being targeted for bombing and kidnapping and he claimed they were. He claimed that he supported all groups that fought Islamic State such as the Lebanese and Syrian armies, Hizbullah and the US and Western governments who were fighting Islamic State. Asked who would target him, he claimed that Islamic State, Jabhat al-Nusra or al-Qa’ida would do this. He had no other claims.

   (Emphasis in original)

2. The applicant was invited by the Tribunal to attend a hearing which was conducted on 5 August 2015. A transcript of the hearing was before the Court and it will be necessary to return to certain elements of that transcript. Prior to the conclusion of the hearing the Tribunal gave the applicant the opportunity, through his adviser, to submit any further documents in support of his claims.

3. On 13 August 2015 the applicant’s advisers sent the Tribunal a letter together with a number of documents, including a letter from an organisation called STARTTS, (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors), dated 21 January 2015. In that letter there was reference to complaints of a number of symptoms, including memory loss by the applicant. Other documents sent by the applicant’s adviser to the Tribunal at that time were media reports of various incidents and bombings in Beirut.

4. The Tribunal made its decision on 20 August 2015.

Tribunal’s decision

1. The Tribunal considered the letter from STARTTS but gave it little weight in determining the validity of the applicant’s claim because of the lack of corroborating evidence that he provided and the actions he has or had not taken in response to his claims. It found that the applicant’s evidence regarding his claims lacked credibility and that he had fabricated his claims in order to be granted a protection visa.

2. First the Tribunal dealt with the applicant’s claim to have been caught in a bombing. The Tribunal did not accept that the applicant was nearly caught in a bomb blast before he came to Australia, or that there was a real chance that he could be caught in a bomb blast on return to Lebanon. The Tribunal rejected the claim to have been nearly caught in a bomb blast because of an inconsistency between the applicant’s evidence about the timing of the blast and media reports about that bomb blast.

3. In respect of the risk of the applicant being caught in a bomb blast in the future, the Tribunal considered that, while there had been a number of bombings in Shi’a areas of Beirut, there was “a very small number of bombings and an equally small number of casualties out of a population in the southern suburbs of Beirut of 900,000 people”. The Tribunal went on to find that, even though it was satisfied that the applicant would not be targeted, or be the incidental victim of a bomb attack because of where he lived, the fact that the applicant had financial resources to relocate if he chose, but was unwilling to do so, indicated that he had no fear of returning to the area in which he lives.

4. The Tribunal then turned to the question of kidnapping and found that there was no real chance that the applicant would be the target of a kidnapping simply because he was of the Shi’a faith or because he supported those who fought Islamic State (“IS”). First, there was no country information to indicate that Shi’a Lebanese civilians were targeted for kidnapping, and secondly, there was no suggestion that either the applicant, or any members of his family, or any friends had been the subject of a kidnapping attempt.

5. Whilst the applicant was asked to provide evidence after the hearing regarding instances of Shi’a civilians being kidnapped in Lebanon, there was no reference to that claim in the post-hearing letter from the agent and there was no evidence provided in support of it.

6. In respect of the applicant’s support of those fighting IS, the Tribunal found that such a sentiment would be widely held and there was no country information to suggest that he might have a real chance of being targeted for doing so.

7. Finally, the Tribunal did not accept that the applicant had experienced abuse and discrimination at work, on the basis of country information.

8. On the basis of those findings, the Tribunal was not satisfied that the applicant met the criteria for the grant of the visa and so affirmed the decision under review.

Consideration

1. The applicant appeared at the hearing unrepresented and addressed both grounds in the application.

First Ground

1. In respect of the first ground, the applicant said a number of things that, effectively, went to the merits of findings of fact made by the Tribunal. He argued that the Tribunal had no right to question his credibility and referred to [27] of the Tribunal’s reasons. That submission is not correct. As part of its duty to review the delegate’s decision, the Tribunal is required to find, in the first instance, what events had taken place in the past that might affect the future possibility of the applicant being harmed in Lebanon.

2. Such findings will often require findings about credibility of an applicant who, as in this case, is the only witness put forward in support of the claim. Thus, as in this case, findings of credit are often an essential component of the Tribunal’s duty to review. The concern underlying the applicant’s submission appears really to be that he was telling the truth to the Tribunal and the Tribunal ought to have accepted his credibility. That may well be correct, however that is not a matter for the Court to determine. The Court is limited to determining whether the Tribunal’s decision is affected by jurisdictional error. So long as findings of credit have some logical basis in the material before the Tribunal, the Court cannot interfere with it. That is the case here.

3. In my view, the Tribunal gave reasons for its credit findings which were logically open on the material and other evidence before it.

4. The applicant sought to support this ground by attacking a number of findings made by the Tribunal. For example, he said that his house was 200 metres away from the explosion and that he could not move to another area because he would not be welcomed in that other area because of his faith. The difference between the timing that he gave in his evidence about the explosion and the report of it in the newspapers did not mean that the explosion did not happen.

5. Each of these matters raised by the applicant might logically support a finding that his evidence was credible. However, it does nothing to undermine the fact that the credibility findings actually made by the Tribunal were open to it. For those reasons, the first ground does not raise jurisdictional error and is rejected.

Second Ground

1. The second ground concerns the conduct of the hearing by the Tribunal. There were no particulars given of this ground in the application and no written submissions filed in accordance with the Court’s orders. At the hearing, the applicant explained that the Tribunal Member had spoken to him in a rough tone. I asked him how I could determine that, given that I only had the transcript in front of me. He said that he had filed the compact disc recordings of the Tribunal hearing and explained that this had been done for him by a Mr Toufic Laba Sarkis. Unfortunately for the applicant, that was not correct. No recordings of the Tribunal hearing have been filed in the Court.

2. The applicant then requested an adjournment in order for him to file the compact discs and for the Court to listen to them. I refused that application. There are a number of critical reasons for which I did so. First, the applicant said that he would be unable to pay any of the Minister’s costs of such an adjournment. In that way, the prejudice that would be suffered by the Minister from the failure by the applicant to have complied with the timetable would be unable to be remedied.

3. Secondly, as submitted by the solicitor for the Minister, even if the Tribunal had spoken in a rough tone at the times that the applicant said that it had, that would have been unlikely to give sufficient support for the allegation of actual or apprehended bias.

4. In addition, I took into account the fact that the Court’s lists are very busy and that an adjournment would either take the place of the hearing for another matter, or would take a significant period of time before the matter could be relisted. On that basis, the hearing proceeded on the evidence currently before the Court which, as I have said, included the transcript of the hearing.

5. I will deal first with the particular passage during which the applicant claimed the Tribunal spoke to him in a rough voice before turning to the other specific matters raised by the applicant today.

6. The passage relied upon by the applicant was at T5.11[2], as set out below:

   [2] Transcript reference, page 5, line 11

   Tribunal:So all these people who are going to be targeted for kidnapping and targets of bombing. Is that what you’re saying?

   Applicant:It’s true. In my view yes.

   Tribunal:Okay. Okay so what group is it you support? Any particular group?

   Applicant:Everyone who fights Isis.

   Tribunal:And who might they be?

   Applicant:Lebanese army. Yeah Lebanese there’s a group

   Tribunal:Look at me

   Applicant:Yeah like Bashar he’s a Syrian

   Tribunal:Arab armed force.

   Applicant:The Syrian Arm force cause also everyone.

   Tribunal:Okay, you support the United States and Australia governments because they fight Islamic state as well?

   (Errors in original)

7. The applicant said that when the member said “Look at me”, he spoke roughly or in a rough tone. That statement by the Tribunal has to be seen in the context of an earlier passage in the transcript. At T2.25, when the Tribunal was in the course of explaining to the applicant the way in which the matter was to proceed, the Tribunal said:

   …

   Okay. Now during this hearing you maintain eye contact with me at all times. So disregard the interpreter as though she is not here and when you provide your answers to questions can you break it up into shorter sentences and still keep your answers as long as they need to be but just split it up, just makes it easier.

   …

8. Those comments were made in the broader context. As explained by the Tribunal [T3.8 – T3.11], one of the issues for the Tribunal was the assessment of the applicant’s credibility. This makes it clear that what the Tribunal was doing was to ensure that it had every possibility of assessing the applicant’s demeanour when he was giving evidence, a matter which is obviously easier when a witness or applicant is speaking directly to the Tribunal Member rather than facing an interpreter.

9. Given that context, even if what was said by the Tribunal Member was in a rough tone, there is no logical connection between that rough tone and the possibility that the Tribunal might have made up its mind before the hearing. More so, there is no indication from it that the Tribunal had in fact made up its mind before the hearing.

10. The applicant made two further points during the course of the hearing before the Court. The first was that the Tribunal’s manner was trying to attack the applicant’s credibility; secondly, the Tribunal was basing its views upon the Member’s observations from having been to Lebanon from time to time, although as the applicant explained, the Tribunal Member, unlike him, had never actually lived there.

11. I will deal with the second of these first. It is permissible for a Tribunal Member to use his or her knowledge of a particular area or country in reviewing a delegate’s decision. As was explained by Branson J in NAEH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 927, such local experience might in fact be one of the reasons for which Tribunal Members are chosen or appointed to a particular Tribunal. What is important is if the Tribunal Member is going to rely upon his or her own knowledge or experience, that he or she gives the applicant the opportunity to know that, and the Tribunal made that clear in this case: see T3.20.

12. Returning to the first matter raised by the applicant at the hearing, a fair reading of the transcript reveals that the Tribunal did question the applicant’s credibility at the hearing. As I have indicated, that was one of the matters that the Tribunal expressly made towards the beginning of the hearing. The applicant may well have felt as though the Tribunal Member was attacking his credibility however, it is important to understand once again what the Tribunal’s task was. As I have already explained, the Tribunal is required to consider and determine what might have happened in the past in order to determine what might happen in the future and that in order to do so, it is often necessary for the Tribunal to make credit findings.

13. The purpose of the hearing conducted by the Tribunal is not only for the Tribunal to ask whatever questions it wants relevant to the review, but also for the applicant to have the opportunity to address the issues that arise on the review. Thus, if the applicant’s credibility is an issue that arises on review, as it was here, the Tribunal is required to make that clear at the hearing. For that reason, the fact that it did so, does not indicate in any way that it was actually, or might have been, biased.

14. I have read the entire transcript and consider that it reveals that the Tribunal approached the hearing and conducted it in a way which was consistent with its duties. It first asked the applicant in an open way what his particular claims were [T4], gave him the opportunity to expand upon his claims [T5], asked the applicant if he had any evidence to prove his claims, and then gave the applicant the opportunity to provide such evidence after the hearing. The Tribunal also put to the applicant certain country information that it said was inconsistent with the applicant’s evidence. It may be noted that throughout the hearing the applicant’s adviser was present and yet made no complaint about the conduct of the hearing by the Tribunal.

15. In light of the transcript, I am not satisfied that the hearing was conducted in any way which was unfair to the applicant, or that it reveals any other type of jurisdictional error. For those reasons I reject the second ground.

16. The Tribunal’s decision as a whole turned upon its findings of fact. It considered each of the applicant’s claims and properly addressed those claims by reference to the questions posed by the relevant criteria for a protection visa.

17. There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     26 September 2016