BXT17 v Minister for Immigration

[2019] FCCA 1459

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXT17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1459

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Safe Haven Enterprise (subclass 790) visa – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111;

162 ALD 442

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254

FCR 221; 159 ALD 417

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

257 FCR 111; 158 ALD 198

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210;

253 FCR 475

Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87

ALJR 618; 297 ALR 225

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR

611; 84 ALJR 369; 266 ALR 367; 115 ALD 248

Applicant: BXT17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION 

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 910 of 2017

Judgment of: Judge Mercuri

Hearing date: 19 October 2018

Date of Last Submission: 19 October 2018

Delivered at: Melbourne

Delivered on: 13 June 2019

REPRESENTATION

Counsel for the applicant: Mr Zhou

Solicitors for the applicant: Asylum Seeker Resource Centre

Advocate for the respondents: Mr Rogers

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application filed 4 May 2017 and amended on 21 September 2018 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 910 OF 2017

BXT17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. The applicant seeks judicial review of a decision of the second respondent, the Immigration Assessment Authority (“the IAA”) made on 11 April 2017, by which the IAA affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (“SHEV visa”).

2. The applicant’s amended application filed 21 September 2018 raises three grounds of review. The Minister submits that the grounds of the amended application fail and seeks orders that the proceeding be dismissed with costs.

Background

1. The applicant is a Lebanese national born Sunni Muslim[1] who arrived in Australia by boat at Christmas Island on 25 April 2013.[2]

   [1] Court book page 99.

   [2] Court book page 68.

2. On 28 October 2016, the applicant lodged an application for a SHEV visa.[3] The applicant was subsequently invited to attend an interview with the delegate of the Minister and had his SHEV visa application refused on 23 February 2017.[4]

   [3] Court book pages 44 to 109.

   [4] Court book pages 167 to 181.

3. On 1 March 2017, the IAA was referred to review the delegate of the Minister’s decision.[5] On 23 March 2017, the applicant’s appointed representative provided to the IAA, a submission and additional material, including: a letter from the Department of Immigration and Border Protection to the applicant’s sister dated 23 February 2017 which notified her of the decision to grant her a SHEV visa (“the visa grant letter”).[6]

   [5] Court book page 186.

   [6] Court book page 443.

4. The IAA notified the applicant of its ultimate decision on 11 April 2017.[7]

   [7] Court book pages 453 to 473.

The applicant’s claims

1. The applicant’s claims as set out in his statement of claim are as follows:[8]

   ·he had a significant physical disability (‘presumed Congenital Nystagmus’, also referred to as ‘Idiopathic Infantile Nystagmus’) as well as a number of mental illnesses;[9]

   ·he had left Lebanon because of fighting between Shia (Alawites) and Sunnis. He claimed that as someone living on the streets he was especially exposed to such violence, and that as a young man from a strongly religious Sunni family, he was targeted for recruitment to fight in Tripoli and Syria;[10]

   ·his father hit and abused him because of his disability and [11] as a result, he could not live with family and ‘preferred to live on the streets of Tripoli, and of Beirut’;[12] and

   ·he was subjected to harassment and abuse by fellow students, teachers and others because of his disabilities and mental illness.[13]  

   [8] First respondent’s outline of written submissions filed 12 October 2018.

   [9] Court book page 99.

   [10] Court book page 100.

   [11] Court book page 12.

   [12] Court book pages 101 and 103.

   [13] Court book pages 100 to 101.

2. One of the issues raised in this application was the claim made by the applicant in his Irregular Maritime Arrival and Induction Interview where he said that because of “war, my father used to bash me a lot in Lebanon and there is no safety”.[14]

   [14] Court book page 23.

3. The applicant made additional claims at the protection visa interview with the delegate of the Minister which are summarised in the IAA’s decision record as follows:

   ·He dropped out of school as he did not benefit in any way from the schooling he was being provided.

   ·After he left his boarding school, he did not return home, but instead went to live and work in Beirut and Tripoli.

   ·He went asking for work at restaurants in Beirut and Tripoli and most often he was provided with a place to sleep at these restaurants after work.

   ·Besides one occasion, he cannot recall ever returning to his family home. His family members did not persuade him to return home either.

   ·His mother spoke to him occasionally over the telephone and for a short period of time, he worked with his brother, Marcel at a restaurant in Beirut. He received no financial assistance from his family, however his maternal cousins provided him with financial support and assistance in finding employment.

   ·He travelled to Australia with his paternal uncle, who also assisted in organising his travel. He paid for his travel with funds he received from his mother and his maternal cousins.

   ·His maternal cousins were assassinated after his departure from Lebanon.

   ·In Lebanon, he was robbed of his possessions, such as his phone, money and sunglasses on a regular basis.

   ·On one occasion, he was given drugs by the Al Nusra Party, after which they attempted to indoctrinate him. He however managed to escape.

   ·There is no medical treatment available for his health conditions in Lebanon.

   ·Since his arrival in Australia, he has posted comments against the Lebanese President and Islam on Facebook.[15]

   [15] Court book pages 169 to 170.

4. At the protection visa interview, the applicant’s migration agent also provided both a verbal submission and medical reports from the New South Wales (“NSW”) Department of Health regarding the applicant (Department file CLD2017/5478547) (“the new information”).[16]

   [16] Court book page 170.

The IAA’s reasons

1. In its decision record, the IAA accepted the following facts:

   ·The applicant is a Lebanese national and a Sunni Muslim by birth.

   ·He does not believe in and is a non-practitioner of the Islamic faith.

   ·He has posted comments against Islam and the Lebanese President on his Facebook page.

   ·He has physical and mental health ailments requiring regular medication and health care and assistance.

   ·He experienced discrimination and bullying at school and in society.

   ·He fears being harmed and/or recruited to fight for their cause by the Sunni militia in Lebanon.

   ·He fears harm at the hands of Alawites and other Shia militia in Lebanon.[17]

   [17] Court book page 170.

2. In relation to the new information presented[18] the IAA made findings about whether the requirements in section 473DD of the Act were satisfied in order for it to consider this information.

   [18] Court book pages 454 to 456.

Ground one

1. The first ground of review is:

   The Second Respondent misconstrued and misapplied section 473DD of the Migration Act 1958 (Cth) (the Act) in refusing to consider new information provided by the Applicant in relation to the grant of protection visa to his sister.

   Particulars

   (a)The Applicant provided the Second Respondent with evidence that his sister has been a granted protection visa on
   23 February 2017.

   (b)The Second Respondent refused to consider that information under s 473DD on the basis that there were no exceptional circumstances to justify the consideration of the new information. The Second Respondent stated that there was no information before it regarding the reasons for the grant of the protection visa.

   (c)It did not proceed to consider, pursuant to s 473DD(b)(i), whether this information was not, and could not have been provided to the Delegate before the relevant decision. Nor did it have regard whether the visa grant information constituted ‘credible personal information which was not previously known; within the meaning of s 473DD(b)(ii).[19]

   [19] Applicant’s amended application filed 21 September 2018.

2. Section 473DD of the Act relevantly provides:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless;

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information;

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claim.

3. In support of this ground, the applicant conceded that the two limbs in section 473DD of the Act, namely subsection (a) and (b) are cumulative.[20] However, the applicant argued that the IAA failed to consider (b) and thereby committed the same error identified in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221; 159 ALD 417 (“BVZ16”).[21] Relying upon BVZ16, the applicant submitted that in this case, the IAA was required to consider the factors identified in both subsection 473DD(b)(i) and (ii) as part of the consideration of subsection 473DD(a). It was further submitted that in this case, the IAA did not do so and its decision was therefore affected by jurisdictional error.

   [20] Transcript page 2 at line 45.

   [21] The reasoning in BVZ16 was approved by the Full Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 257 FCR 111; 158 ALD 198 at [37].

4. It was submitted by the applicant that a fair reading of the IAA’s reasons, particularly at paragraph 5 (second dot point) reveal that the IAA only considered whether there were exceptional circumstances. It did not consider, in the sense of intellectually engage with, the requirements of section 473DD(b)(i) or (ii) of the Act. In failing to do so, the applicant submits that the IAA ‘failed to complete its statutory task and fell into jurisdictional error.’[22]

   [22] Applicant’s outline of submissions filed 21 September 2018 at paragraph [25].

5. In response, the Minister conceded that the IAA in this case ‘made a finding only in respect of whether s 473DD(a) was met. It concluded that it was not satisfied that there were such exceptional circumstances.’[23] However, the Minister submitted that this finding did not result in jurisdictional error. 

   [23] First respondent’s outline of written submissions filed 12 October 2018 at paragraph [18].

6. It is not mandatory for the IAA to make a finding as to whether the conditions in section 473DD(b) have been met.[24]  To the extent that there is an obligation on the IAA to consider the matters set out in section 473DD(b), it was submitted by the Minister that the IAA did do so in this instance.

   [24] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [16].

7. The Minister submitted that the IAA clearly did have regard to the ‘relevant matters’ in section 473DD(b) of the Act when contemplating whether there were ‘exceptional circumstances’ for the purposes of section 473DD(a) of the Act in order to justify considering new information about the grant of a visa to the applicant’s sister.

8. This ground relates to the IAA’s treatment of new information provided by the applicant’s representative after the delegate’s determination. In particular, it relates to the IAA’s treatment of a letter from the Department of Immigration and Border Protection to the applicant’s sister advising her that she had been granted a Safe Haven Enterprise (subclass 790) visa.[25] 

   [25] Court book page 443.

9. The applicant’s representative also provided a written submission to the Authority dated 23 March 2017 (“the March submission”), to which the letter advising the applicant’s sister that she had been granted a SHEV was attached.[26] Relevantly, the March submission contained the following statements:

   [26] Court book pages 203 to 443.

   I submit that (the applicant’s) application for a subclass 790 Safe Haven Enterprise Visa should be granted on the basis that-

   …

   c. The decision to refuse (the applicant’s) visa is inconsistent with the decision to grant his sister … a subclass 790 visa, on 23 February 2017; see attached visa grant notice.’[27]

   [27] Court book page 203.

10. The March submission went on to say:

    The decision to refuse (the applicant’s) visa is inconsistent with the decision to grant his Sister … a subclass 790 visa, on 23 February 2017.

    I refer to the decision of Brennan J in Drake v Minister for Immigration and Ethnic Affairs …

    The principles of consistency, equality and predictability are fundamental to the rule of law and central to the idea of administrative justice.  Whilst it is acknowledged that the individual circumstances of the case must be considered, however, in this case and in the case of (the applicant’s sister) the circumstances are so similar that a decision to refuse to grant (the applicant) the visa applied for is wholly inconsistent with the decision to grant (the applicant’s sister) the same visa.[28]

    [28] Court book pages 203 to 443.

11. This is the only reference to the substance of the applicant’s sister’s claim. No detail is provided either in the March submission or elsewhere of the nature of the applicant’s sister’s claims for protection and save for a bare assertion, there is no evidence that her claims are based on the same or similar matters to those raised in the applicant’s application. 

12. The IAA, in considering whether to have regard to the fact that the applicant’s sister was granted a visa, made reference to the letter advising the applicant’s sister that her visa application had been granted and noted the submission that the refusal of his application for a visa was inconsistent with her application having been granted.  It then went on to say:

    The notification letter is dated 23 February 2017, and it does not appear that this information was before the delegate.  I am not satisfied that there are exceptional circumstances which justify my consideration of this new information.  I have no information about the reasons for which the applicant’s sister was granted a protection visa, and there is nothing to indicate that her circumstances are in any way similar to those of the applicant, apart from the assertion of the applicant’s representative to this effect.[29]

    [29] Court book page 454 at paragraph [454].

13. As is evident from a review of recent Full Court Federal Court decisions which have considered section 473DD, including AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 (“AQU17”) and the cases referred to therein, whether the IAA has properly exercised its powers and duties under that section will depend on the particular circumstances in any given case.[30]

    [30] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [13]

14. At paragraph [14] of AQU17, the Full Court noted:

    As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement.  Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case.  It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether ‘exceptional circumstances’ exists as s 473DD(b) does not codify what constitutes ‘exceptional circumstances’.  …. … in many cases consideration of the factors in ss473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case. 

15. Relevantly, the Full Court noted that it:

    …was necessary for the Authority to examine whether there was anything about the new information or the appellant’s circumstances which meant that there were exceptional circumstances justifying consideration of the new information.’[31]

    [31] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [15]

16. In this case, the IAA considered whether the information about the applicant’s sister’s case could lead it to conclude that exceptional circumstances existed. Moreover, although the IAA did not expressly refer to either section 473DD(b)(i) or (ii) expressly, it is clear that it considered whether the information was available prior to the delegate’s decision.  In noting that there was no information which made it clear that the applicant’s sister’s circumstances were the same as those of the applicant, it also considered whether it was information that might have affected the applicant’s claims. 

17. Having regard to these factors, the conclusion reached by the IAA that there were no exceptional circumstances which would warrant it having regard to the letter advising the applicant’s sister that her application for a SHEV had been granted, was reasonably open to it. There is no basis on which to say that the IAA’s decision in this regard was affected by jurisdictional error.

18. For these reasons, this ground is not made out.  

Ground two

1. The second ground of review is:

   In the alternative to Ground 1, the Second Respondent exercised its discretion under section 473DC of the Act unreasonably, by failing to make inquiries and/or seek information about a centrally relevant matter, being the reasons that the Applicant’s sister’s (sic) was granted a protection visa.

   (a)For the reasons particularised above, the grant of a protection visa was centrally relevant matter.

   (b)The Second Respondent had the power to obtain information about the reasons for the grant of the protection visa under s 473DC(1) of the Migration Act.

   (c)The reasons for the grant of the protection visa were easily obtainable, either from the Applicant directly or from the Department (sic).[32]

   [32] Applicant’s amended application filed 21 September 2018.

2. It is common ground that the IAA is required to exercise any statutory power which confers a discretion in a reasonable manner. [33]

   [33] Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332; 87 ALJR 618; 297 ALR 225.

3. In pressing this argument, the applicant sought to rely on the decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (“CRY16”) in which the Court found that the IAA had failed to exercise its powers to obtain further information under section 473DC of the Act in a legally reasonable manner. 

1. In CRY16, the Full Court stated:

   Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent.  The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut.  The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate.  The Authority’s failure to consider the exercise of that discretionary power meant that it dabbled itself from considering what was reasonable, in the sense of ‘practicable’ in terms of relocation.  In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.[34]

   [34] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [82].

2. It was submitted on behalf of the applicant that a similar argument arose in this case. Namely, it was submitted that in circumstances where the applicant had raised allegations of family abuse and fear of reprisals from his father and the assertion that the sister’s claims for protection were similar, it was legally unreasonable, in the same sense identified in CRY16, for the IAA not to seek more information as to the basis of the sister’s claim. 

3. Alternatively, it was argued that this ground could be framed as a constructive failure by the IAA to perform its statutory obligation to review under section 473CC of the Act by failing to make an obvious inquiry.[35]

   [35] BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530.

4. In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 (“BMF16”), Bromberg J noted ‘there is authority for the proposition that a decision-maker’s failure to make an obvious inquiry about a critical fact may be legally unreasonable or amount to a constructive failure to exercise jurisdiction.’[36]

   [36] BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [136].

5. It was submitted by counsel for the Minister that this case, together with the other cases referred to in support of this proposition by the applicant, are of little assistance as none of those cases were determined in the context of Part 7AA. There is some force to that submission.

6. Section 473DC limits the circumstances in which the IAA may obtain any new information. Moreover, as noted above, section 473DD restricts the power of the IAA to consider any such new information. Any general obligation on the IAA to make inquiries must be viewed in that statutory context.

7. Whilst there may well be some cases under Part 7AA in which a failure by the IAA to exercise its discretion to obtain and consider new information would be legally unreasonable, this is not one of them. In this case, the applicant was represented and his representative made submissions and provided information to the IAA which it asked the IAA to consider. If there was other information which related to the applicant’s sister’s application and which the applicant wanted to rely upon, it was a matter for the applicant, through his representative, to put that information before the IAA. Having decided only to place the letter advising that the applicant’s sister’s application for a SHEV visa was granted before the IAA, and no other evidence as to the basis of her application, it cannot be said that the IAA acted unreasonably in failing to make any further inquiries. 

8. Moreover, I am not satisfied that any failure by the IAA to make inquiries as to the basis on which the applicant’s sister’s application for a SHEV visa was granted was a failure to make an obvious inquiry about a critical fact. The applicant’s application for protection was based on the following claims which were particular to him:

   a)he suffers from a series of physical disabilities which led him to being abused and teased both at home and at school;

   b)he was unable to live at home because his mother was religious and he was not – this causing some tension between them;

   c)he was exploited at work because of his disabilities;

   d)he also suffers from a range of mental health issues for which he would not be able to receive adequate treatment in his country of origin;

   e)he was frequently physically abused by his father; and

   f)he was bashed by a group of Alawites and as a young Sunni male, he feared being recruited to fight in Syria by extremist Sunni militia groups.

9. None of these claims relate to his sister.  It is not clear therefore how the applicant says that a failure to make inquiries about the basis on which his sister’s application was granted was a ‘centrally relevant matter’. I am not satisfied that it was. 

10. The applicant also relied upon CRY16 in support of this ground. CRY16 concerned a fast track review dealt with under Part 7AA of the Act, in which the delegate at first instance found that applicant did not face a real chance of serious harm in his home neighbourhood and therefore did not meet the criteria for a protection visa. The matter was referred to the IAA which determined that the applicant in fact did face a real chance of serious harm in his home town, but then went on to consider the possibility of an internal relocation. The IAA concluded that it would be reasonable for the applicant to relocate to another area within his home country where he would not face the same risk of serious harm. 

11. The applicant sought a review of the IAA’s decision.

12. The Full Court of the Federal Court, Robertson, Murphy and Kerr JJ, noted:

    The Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate.  The Authority must also have been taken to have known that the question of relocation depended on the particular circumstances of the respondent…[37]

    Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings by the delegate (emphasis added).[38]

    [37] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [76].

    [38] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82].

13. The applicant claimed that a similar error was made here. I agree with the Minister’s submissions that CRY16 is distinguishable.

14. In considering whether an internal relocation is reasonable in the sense of practicable, the IAA is required to consider the particular circumstances of the applicant. In CRY16, by failing to invite the applicant to provide new information addressing this point, the IAA ‘disabled itself from considering what was reasonable, in the sense of ‘practicable’ in terms of relocation.’[39]

    [39] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82].

15. In this case, however, the applicant himself raised the issue of inconsistency between the decision in relation to himself and that in relation to his sister. It was incumbent upon him to put before the IAA whatever material he deemed relevant to support that claim. The applicant did not, in his March 2017 submission to the IAA or indeed before this court, suggest that there was further information available which he did not have access to. He simply alleged that the IAA erred in not asking him for more information about the basis of his sister’s application. This submission is, with respect, misconceived.

16. CRY16 is distinguishable from the facts in this case. In this case, the IAA assessed the evidence that the applicant put forward in support of his claim. That assessment is not in itself a matter which must be put to the applicant for further comment. In contrast, in CRY16, the IAA considered a matter which had not been raised by or, importantly, with the applicant. That failure in the context of the IAA considering an internal relocation, was the basis of the court’s finding that there had been a jurisdictional error.

17. For these reasons, ground two is not made out.

Ground three

1. The third ground of review is:

   The Second Respondent reached a finding without evidence or probative basis, in concluding that the Applicant was not living on the streets in Lebanon or in the alternative, this finding by the Second Respondent was legally unreasonable.

   Particulars

   (a)The evidence before the Second Respondent was that the Applicant was homeless, either in that he was sleeping on the floor of the kitchen where he worked, or that he was sleeping in the streets or under bridges.

   (b)There was no evidence before the Second Respondent to support its finding that the Applicant had not lived on the streets of Lebanon or had only done so for a negligible period.

   (c)Yet the Second Respondent proceeded to make a finding that the Applicant had not lived on the streets of Lebanon.

   (d)This finding was a critical step to the Second Respondent’s ultimate conclusions regarding the Applicant’s claims of fear of harm arising from family violence, disability, mental illness, forced recruitment by militia, and sectarian violence.

   (e)Alternatively, the Second Respondent’s reasoning in reaching this finding lacked an evident and intelligible justification as was legally unreasonable.[40]

   [40] Applicant’s amended application filed 21 September 2018.

2. The applicant submitted that the factual finding that the applicant was not living on the streets in Lebanon lacked evidence and was otherwise legally unreasonable.[41] The applicant conceded that a mere incorrect factual finding or the drawing of an illogical inference without more does not necessarily lead to an error of law. Nor does a jurisdictional error arise from merely reaching a conclusion in respect of which reasonable minds might differ. However, it is submitted on behalf of the applicant that this is not such a case and, in reaching the conclusion that it did about the applicant’s state of homelessness, the IAA’s reasoning was affected by jurisdictional error.[42]

   [41] Applicant’s outline of written submissions filed 21 September 2018 at paragraph [35].

   [42] Applicant’s outline of written submissions filed 21 September 2018 at paragraph [38].

3. It was submitted for the applicant that there was significant evidence before the IAA that the applicant was homeless or that he had been living on the streets and there was no evidence to support the IAA’s finding that the applicant had not lived on the streets in Lebanon or that he had only done so for a negligible period.[43] 

   [43] Applicant’s outline of written submissions filed 21 September 2018 at paragraph [40].

4. The Minister’s position is that the IAA used ‘…logical grounds and probative material’ to find that the applicant was not living in the streets of Lebanon (or had not done so for an extended period).[44]

   [44] First respondent’s outline of submissions filed 12 October 2018.

5. In setting out the applicant’s claims, the IAA noted in its reasons:

   At the SHEV interview, he stated that after leaving school he never returned to his home, although in the written statement submitted with the application he claimed that he would go home for a few weeks at a time.  He worked in a variety of jobs – mainly as a kitchen hand in hotels or restaurants, where he was given board though he stated that often the living conditions were terrible; he stated that he also worked on the streets selling orange juice.  He claims that he was exploited at work because of his disabilities, being made to work very long hours for little pay.  When he worked selling orange juice he was sometimes robbed.  He also said that on occasions people took his money, phone and sunglasses.  He said that he lived both in Tripoli and Beirut.  Life in Beirut was very hard because he was paid so little and his working conditions were tough.[45]

   [45] Court book page 456 at paragraph [9].

6. After setting out claims in relation to the treatment he received from his family, the IAA went on to state that the:

   …problems with (the applicant’s) family forced him to leave home to work in bad conditions and live on the street.  He claims that if he returns to Lebanon he will be forced to live in similar conditions, where he will be vulnerable because of his physical and mental disabilities.[46]

   [46] Court book page 459 at paragraph [23].

7. After setting out various inconsistencies in the applicant’s evidence about his relationship with members of his family both in Australia and in Lebanon, the IAA concluded:

   I am not satisfied, in these circumstances, that in Lebanon the applicant was routinely subjected to verbal or physical abuse, or any form of mistreatment which forced him to leave the family home and live on the streets.  In my view, the evidence does not support a conclusion that he would be without family support and be forced into this situation in the future.[47]

   [47] Court book page 459 at paragraph [25].

8. At paragraph 33 of its reasons, the IAA discussed the applicant’s claims about having restricted access to employment as a result of his disabilities and limited education. It went on to say:

   I accept that he may as a consequence have been subjected to some exploitation and poor working conditions in the unskilled occupations in which he was employed. Nonetheless, the evidence indicates that the applicant was able to consistently find employment which often also afforded him a place to live and food, as well as a (poor) wage.[48]

   [48] Court book page 461 at paragraph [33].

9. Further at paragraph 36 of its reasons, the IAA considered the applicant’s claims in relation to the conflict in Tripoli in 2012 and 2013 between Alawites and Salafists:

   It was at this time that he claims to have been beaten by a group of Alawites.  He claimed that he was particularly unsafe because he lived on the streets, although as noted above, I do not accept that the applicant was homeless and living on the streets for any extended period of time.[49]

   [49] Court book page 462 at paragraph [36].

10. I accept that the IAA found that the applicant did not live on the streets for any significant period of time. However, contrary to the submission made on behalf of the applicant, such a finding was reasonably open to the authority on the evidence before it. 

11. It was reasonably open to the IAA to conclude on the basis of the evidence before it that the applicant continued to enjoy the support of some members of his family and therefore conclude that he was no likely to be ‘forced to live on the streets’ on his return to Lebanon. 

12. There is no proper basis on which to conclude that the IAA’s reasoning was illogical or irrational. As noted by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248:

    …the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. …’[50]

    [50] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248 at [133].

    …

    Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker.  A decision might be said to be illogical or irrational if only on conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences of conclusions drawn.[51]

    [51] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; 115 ALD 248 at [135].

13. In this case, the decision reached by the IAA and the factual findings made were all open on the evidence before it. The IAA simply did not accept the applicant’s claim that problems with members of his family forced him to leave home to work in bad conditions and live on the streets.  Moreover, the IAA concluded that in future, he would not be without family support and forced into such a situation. Those findings were reasonably open to the IAA on the evidence before it.

14. For these reasons, ground three is not made out.

Conclusion

1. As none of the applicant’s grounds has been made out, therefore the application should be dismissed with costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Mercuri.

Associate:

Date: 13 June 2019

CORRECTION: 9 June 2020

1. Paragraph [22] has been amended to remove name of applicant pursuant to section 91X of the Migration Act 1958 (Cth).