BZG18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 212
•8 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BZG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 212
File number: MLG 1040 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 8 March 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – whether the Authority failed to consider a claim that clearly emerged on the materials before it – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 473CA, 476, 477 Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313; [2019] FCA 465
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 2 February 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr M Guo Solicitor for the Applicant: Bardo & Erci Lawyers Counsel for the First Respondent: Ms N Campbell Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
MLG 1040 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 4 April 2018.
2.A writ of mandamus issue, directed to the second respondent, requiring it to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Lebanon who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority). The applicant seeks judicial review of the Authority decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
Pursuant to an amended application, the applicant relies on a single ground alleging jurisdictional error on the basis that the Authority failed to consider a substantial and clearly articulated argument that the applicant faced a real risk of significant harm due to generalised violence from terrorist groups. The description of the complementary protection claim that the applicant says the Authority was required to, but did not consider, was refined in the applicant’s submissions to be a claim that clearly emerged on the materials before the Authority that people in the northern part of Lebanon faced a real risk of significant harm from terrorism because of their geographic location.
I have found that the ground raised by the applicant establishes jurisdictional error in the Authority decision. I therefore issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the matter according to law.
VISA APPLICATION AND DECISIONS
The applicant entered Australia in May 2013 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 29 November 2016 the applicant made an application for a protection visa. The applicant’s claims for protection were set out in a statutory declaration made on 28 November 2016. It is unnecessary for the purposes of this judgment to summarise all of the claims for protection made by the applicant.
The applicant attended an interview with an officer of the Minister’s Department on 2 June 2017 to discuss his claims for protection.
Following the interview, on 8 June 2017, the applicant’s representative provided a 29 page submission to the Department.
On 8 December 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
On 4 April 2018 the Authority affirmed the delegate’s decision.
RELEVANT PARTS OF THE AUTHORITY DECISION
It is not necessary in this judgment to summarise all of the applicant’s claims for protection and all of the Authority’s findings in relation to those claims. Rather, this section identifies parts of the Authority’s reasons that were referred to by the parties in their submissions or which are otherwise potentially relevant to the resolution of the ground of application.
The Authority accepted that the applicant is a Sunni Arab from the Akkar region in the northern part of Lebanon.
The Authority considered whether the applicant would face a real chance of serious harm as a ‘young able-bodied Muslim male’ and said at [25]-[29] (footnotes omitted):
25.I have considered whether the applicant faces a real chance of serious harm as a young able-bodied Muslim male. The DFAT report indicates that since late 2013, incidents of violence fuelled by sectarian tensions within Lebanon have decreased. This has been attributed partly to traditional opponents such as the Lebanese authorities and Hizballah co-operating to safeguard some areas of Lebanon. Despite this, the conflict in Syria continues to challenge Lebanon’s stability and there is also a reported presence of the Islamic State in Iraq and the Levant, also known as Daesh (ISIL), particularly in areas bordering Syria and in and around Arsal. The Lebanese forces have been conducting military operations against ISIL, while Hizballah has expelled militants from an area near the border with Syria. Overall, DFAT assesses that the security situation in Lebanon remains largely stable, but unpredictable. Instability is greatest in areas where ISIL and JN are located, particularly around the north-eastern border, although local authorities largely contain these groups.
26.In relation to Sunnis, DFAT notes that substantial populations of Sunnis live throughout Lebanon although most are concentrated in west Beirut, the North governorate and the South governorate. While there has been past violence involving Sunnis in Tripoli, a new security plan was implemented and DFAT is not aware of any significant security incidents or violence aimed at Sunnis in Tripoli since the plan came into effect. Tripoli is now broadly stable, though vulnerable to outbreaks of renewed violence.
27.The situation is more complex in Akkar, given the border with Syria and the presence of displaced Syrian refugees. There have also been instances of Sunnis being targeted by ISIL for not supporting it but overall, DFAT assesses that Sunni communities close to the Syrian border face a low risk of being caught up in cross-border reprisal attacks by Syrian authorities. This risk increases if a community is sheltering anti-Syrian regime fighters but I note that the applicant has never claimed that he, his family or his village has done so. I also note that while DFAT is aware of other groups which have been targeted (including other religious groups, some political activists, active critics of Hizballah, anti-Syria activists and opposition fighters), the applicant has not made any claims, and there is no evidence before me which indicates, that he is involved in any such groups.
28.I note information in the review material that ISIL has been accused of targeting and killing Sunnis. In November 2015 (some other reports indicate this was October 2016 but in my view nothing turns on the date), ISIL killed seven Sunni religious figures in Arsal. This was reportedly due to their cooperation in prisoner hostage negotiations with the government and JN. A more recent 2017 report from the United States Department of State (USDOS) reports on a number of human rights abuses in Lebanon during 2016, noting that these have included the harassment of Syrian political activists and other refugees, but there are no indications that Sunnis or young able-bodied Muslim men have been subjected to any such incidents or are otherwise at risk of harm.
29.Having regard to all of the above, I am satisfied that the applicant does not face a real chance of harm as a young able-bodied Muslim or an able-bodied young Muslim able to take up arms against the Syrian regime.
In its complementary protection assessment, the Authority referred to the relevant test and the definition of ‘significant harm’. It then referred to its earlier findings that the applicant did not face a real chance of serious harm ‘because he refused to join a group supporting the conflict in Syria; as an able-bodied young Muslim able to take up arms against the Syrian regime; arising from the data breach; or as a returned asylum-seeker’. The Authority then concluded that because ‘real chance’ and ‘real risk’ equate to the same threshold, it was satisfied that the applicant did not face a real risk of significant harm for any of the identified reasons.
JUDICIAL REVIEW APPLICATION
The applicant’s application for judicial review was filed on 19 April 2018, and is therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By an amended application filed on 5 January 2024, the applicant advances the following sole ground:
The Second Respondent failed to consider a substantial and clearly articulated argument that the Applicant faced a real risk of significant harm due to generalised violence from terrorist groups.
The evidence before the Court comprises the court book filed on behalf of the Minister on 29 May 2019 and an affidavit of Kristina Petrovksi filed on behalf of the Minister on 15 December 2023. Ms Petrovski’s affidavit annexes a copy of the post-interview submission provided to the Department on behalf of the applicant on 8 June 2017.
CONSIDERATION OF THE APPLICANT’S GROUND
The applicant’s ground was pleaded on the basis that the applicant made a ‘substantial and clearly articulated argument’ that he would face a real risk of significant harm due to generalised violence from terrorist groups. However, in his written and oral submissions, the applicant also addressed the ground on the basis that the claim clearly emerged from the material before the Authority. In his oral submissions, Counsel for the applicant refined his description of the claim that the applicant asserts the Authority was required to consider, describing it as a ‘complementary protection claim that people in the northern part of Lebanon were at risk of harm from terrorism and that is terrorism because of the geographic location they’re in and not because … whether or not they are part of a particular ethnic or religious characteristic’.
Counsel for the Minister confirmed at the hearing that there were no procedural fairness issues arising from any differences in how the alleged jurisdictional error was articulated at different times.
The refining of the description of the claim allegedly raised but not considered appears to have occurred in response to a submission advanced in the Minister’s written submissions. This submission was to the effect that, even if the Court were to find that the applicant did make a claim that he ‘faced a real risk of significant harm due to generalised violence from terrorist groups’ and the Authority did not consider this claim, any error would not be material because s 36(2B)(c) of the Migration Act provides that there is taken not to be real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
In response, Counsel for the applicant referred the Court to BCX16 v Minister for Immigration and Border Protection (2019) 164 ALD 313; [2019] FCA 465 (BCX16). In that judgment, the Federal Court (Charlesworth J) held that if a real risk is faced by a person because of their residency in a particular part of a country, that risk is faced by each resident personally. Her Honour said at [34] and [38]-[39]:
34. The Tribunal did make an assessment of the likelihood that the appellant would be personally targeted in the generalised violence in Kabul, and concluded that he would not be. But that finding was not determinative of the whole of the appellant’s claim. It was necessary to consider whether the appellant’s residency in Kabul was, of itself, a circumstance that exposed him to a real risk of significant harm as a non-targeted citizen who may be caught up in the attacks. If the answer to that question was “no” then there would … be no reason to consider the application of s 36(2B)(c) at all. If the answer was “yes”, then it was the risk so identified that fell to be considered under s 36(2B)(c).
…
38. Returning to the present case, the Tribunal concluded that the risk to which the appellant was exposed was the same as that faced by other residents of Kabul and so was not, the Tribunal said, a risk faced by the appellant personally. In this aspect of its reasons, the Tribunal asked the wrong question. The Tribunal construed s 36(2B)(c) on the erroneous basis that a person would not be exposed to a risk personally if the risk was one to which other persons in the same area of a country were exposed to the same degree. In my view, on the proper construction of the Act, if there was a real risk of harm faced by all citizens of Kabul by virtue of their residency there, then it was a risk faced by each of them personally.
39. Where, however, the risk faced by the person is the same risk that is faced by the general population of the whole of the country, then it cannot be said that the person is exposed to the risk because of his or her personal circumstance of residency in any one particular area of it. …
The Authority’s duty to consider claims which are expressly articulated by the applicant or which clearly emerge from the material before it based on established facts
There is no material dispute between the parties as to the relevant law requiring the Authority to consider claims which are expressly articulated by an applicant, and those which are not expressly articulated but which emerge clearly from the materials before the Authority.
The applicant relied on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 (NABE). In that case, the Full Court (Black CJ, French and Selway JJ) said at [58] and [60] (emphasis added):
58.The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration andMulticultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
…
60.In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that “[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that “[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made” (at [16]). Selway J however went on to observe in SGBB (at [17]):
But this does not mean the application is to be treated as an exercise in 19th Century pleading.
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:
The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention “label” to describe his or her plight, but the Tribunal can only deal with the claims actually made.
His Honour, in our view, correctly stated the position when he said (at [18]):
The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
The Full Court (Collier, McKerracher and Banks-Smith JJ) summarised the principles relating to the Authority’s obligation to consider claims which are expressly made and which clearly emerge from the material before it in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]. In addition to referring to some of the principles discussed above, the Court referred to the following principles as to when a claim that is not expressly articulated may clearly emerge from the materials:
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a)such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
Was there a claim before the Authority, either expressly articulated or which clearly emerged based on established facts, that the applicant would face a real risk of significant harm from generalised violence from terrorist groups?
The applicant relies on several parts of the submission provided to the Department on the applicant’s behalf on 8 June 2017. There were a number of different parts of that submission that were referred to by the parties in their submissions to the Court.
The submission contains a heading ‘Country Information’. Under this heading:
(a)the applicant’s representative referred to a report from the Department of Foreign Affairs and Trade (DFAT) and submitted:
(i)DFAT reports that Lebanon’s stability is tested, including by the presence of extremist groups such as Daesh and al-Nusra, with an intent to perpetrate violence in Lebanon and agitate the pre-existing sectarian tensions within Lebanon: at [22];
(ii)at [23] (emphasis added):
Overall, DFAT assesses that Daesh and al-Nusra currently have an increasing capacity and influence in Lebanon, and that civilians face a moderate risk of violence, depending on their location. For example, recent incidents of violence linked to Daesh or al-Nusra have targeted Alawite and Shi’a interests. DFAT assesses the potential for Daesh or al-Nusra to launch attacks in Sunni-dominated areas as likely. The current security situation in the North Governorate, Beka’a Governorate and Beirut Governorate is reported to be uncertain;
(b)the applicant’s representative referred to a statement from the President of the United Nations Security Council, which addressed concerns about the security situation in Lebanon as a result of the crisis in Syria and which read in part (emphasis in original submission):
As the impact of the Syrian crisis on Lebanon’s stability and security becomes more and more apparent, the Security Council underscores its growing concern at the marked increase of cross-border fire from the Syrian Arab Republic into Lebanon, which caused death and injury among the Lebanese population…
…
The Security Council expresses its deep concern at the increasing and negative impact of the Syrian crisis on Lebanon’s stability and the immediate threat to its security. It underscores its concern at the continued cross-border fire and shelling from the Syrian Arab Republic into Lebanon, which has caused death and injury among the Lebanese population…
The Security Council also notes with deep concern all other border violations, including the presence of terrorist and violent extremist groups in Lebanese territory…; and
(c)the applicant’s representative at [27] submitted that the risk of harm to the applicant should be viewed in the context of this information, which, although general in nature, shows that the applicant’s ability to avail himself of protection in Lebanon will be severely limited and that there is a great sense of insecurity in the region.
Under a heading ‘Submissions’, the applicant’s representative said:
(a)at [72]-[74]:
72. It is submitted that the Applicant fears harm at the hands of terrorist group supporters with links to terrorist organisations in Syria. The Applicant’s harm stems from the fact that he refused to acquiesce with the demands of [person name 1] and [person name 2], and the fact that the terrorists fear that the Applicant will report their meeting and behaviour to the police. To ensure the Applicant’s silence, the Applicant was targeted at his workplace, abused and threatened with weapons.
73. It is our submission that the applicant makes claims against terrorist groups in Lebanon based on the Convention grounds of being imputed to be against the act of “Jihad” and potentially being suspected of supporting the Syrian regime, based on his refusal to join their ranks, and his avoidance of them since the lunch reported by the Applicant.
74. It is our further submission that Nusra Front and other terrorist cells have wide reach within Lebanon and particularly in the North of Lebanon, from where both the applicant and his brother originate. It is submitted that the applicant fears returning to Lebanon due to the threats of violence he received in the brief duration pursuant to the events of the lunch incident;
(b)at [87], under a subheading ‘Relocation’:
It is submitted that the Applicant claims to fear harm from the terrorist cells, wherever he should live in Lebanon.
In his written submissions to the Court, the applicant submitted that:
(a)the applicant’s submission to the Department, raised in the context of complementary protection, that he would fear harm from terrorist cells wherever he should live in Lebanon raised the risk of harm that terrorists presented and which affected him as a member of the public generally;
(b)the complementary protection claim of the applicant was apparent from the evidence and submissions made to the Department;
(c)the possibility that the claim could have been expressed differently or with better precision does not negate that the material was clearly there before the Authority for the claim to have arisen for the Authority’s consideration; and
(d)in considering whether a claim was ‘sufficiently raised’, it is relevant that the Authority is a specialist review body whose only job is to examine protection visa refusals.
In his oral submissions, Counsel for the applicant submitted that:
(a)the country information shows that all people in Lebanon face some sort of risk from terrorism, irrespective of their religion or ethnicity;
(b)the material clearly admits of a complementary protection claim but it is concerned with the risk of terrorism to people living in the north of Lebanon;
(c)the more specific references in the submission to the Department to the applicant’s particular circumstances do not undercut the more general nature of the evidence that the risk is broader than the one based on the specific past interactions of the applicant; and
(d)there is a claim that clearly emerges from the materials, and which does not require creative activity, even if it could have been more clearly expressed.
In his written submissions, the Minister submitted (footnotes omitted):
The Minister disputes that the claim was clearly articulated either expressly or impliedly in the terms framed by the Applicant’s ground. The claim was not one about the risk to the Applicant as a member of the general population of Lebanon. The post hearing submission expressly drew the Authority’s attention to how it was that the claim was not one about the general population of Lebanon – but the Applicant himself and his own risk of harm as a person (who claimed) to be unable to avail himself of protection due to other aspects of the claim that he made. The submission emphasised that the sense of insecurity in the region should further be indicative of the risk factors associated with returning an individual who is likely to experience harm if he were to be returned to Lebanon… This claim was not as a claim about the general insecurity in the region as it applied to the entire population (of which the Applicant is a member). Rather, it was a claim about the personal circumstances of the Applicant in the context of the insecurity.
In oral submissions, Counsel for the Minister submitted that:
(a)each time the risk from terrorism was raised in the submission to the Department, there was an element attached to it based on the particular attributes of the applicant himself;
(b)the claim was never put, and does not arise on the materials, in a way that suggests it was a claim about the applicant’s return in general;
(c)the claim advanced by the applicant was not a claim of a general nature and instead was a claim particular to the applicant and his ability to avail himself of protection due to his particular attributes; and
(d)the Court may potentially have to deal with a situation where it may see that an implied claim is raised but that implied claim is then varied by an express statement confining that claim, which is important because if an implied claim arises on the material but then is expressly disavowed or narrowed, then that has an impact on how and whether the implied claim can be said to have been dealt with.
I do not accept that a claim was expressly articulated by the applicant that he would face a real risk of significant harm from generalised violence from terrorist groups generally or from generalised violence from terrorist groups because he lives in the north of Lebanon.
While the applicant’s submissions to the Department make several references to the harm he fears from generalised violence from terrorist groups, each of those was, as the Minister submitted, qualified by reference to a particular attribute of the applicant, and did not amount to an expressly articulated claim that he would face a risk of harm from generalised violence from terrorist groups simply as a member of the community, whether that be a community member generally in Lebanon or as a person who resides in Akkar province.
Perhaps the closest that the applicant came to expressly claiming that he feared harm from general violence from terrorists in the submission to the Department was at [19]-[21], which the parties did not refer to in their submissions to this Court. In those paragraphs, the applicant’s representative referred to advice from DFAT for travellers to avoid travelling to Tripoli and northern Lebanon ‘due to ongoing clashes between Lebanese security forces and militants in the region, as well as the constantly shifting political landscape resulting from the Syrian war and ongoing security tensions’. The applicant’s representative submitted that it would be contrary to the current travel advice for the applicant to travel back to Akkar in northern Lebanon. The representative then referred to further information from DFAT to the effect that terrorist attacks are highly likely and can occur any time at any location in Lebanon, that the ongoing conflict in Syria is having a destabilising effect on Lebanon and that Lebanese authorities assess that a number of extremists have sought refuge in northern Lebanon including throughout the Akkar region.
However, this in my view falls short of amounting to an expressly articulated claim that the applicant would face a real risk of significant harm from generalised violence from terrorist groups, either as a resident of northern Lebanon or generally.
I do, however, accept that a claim clearly emerged from the material before the Authority to the effect that the applicant would face a real of significant harm from generalised violence from terrorist groups as a person who lives in northern Lebanon.
The extracts of country information referred to in the applicant’s submission to the Department clearly suggest that terrorism and general insecurity remain a risk in Lebanon and that northern Lebanon is one of the most affected regions. The Authority accepted at [12] of its reasons that the applicant is a Sunni Arab from the Akkar region in the northern part of Lebanon, and this amounts to an established fact for the purposes of considering whether a claim clearly emerged from the materials before the Authority.
I have had regard to how the applicant has presented his claims for protection over time. The submission to the Department is addressed in detail above. The applicant in that submission highlighted his particular attributes that would, in his view, lead to him being targeted for harm, but presented his claims in the context of the general situation of insecurity and the risk of terrorism, and made repeated references to independent country information about the risk of terrorism in Lebanon.
The applicant attended an entry interview shortly after his arrival in Australia. There is nothing of significance, for the purposes of assessing whether the alleged claim emerged from the materials, in the way in which the applicant explained the reasons for leaving Lebanon in his entry interview. The reasons given in that interview were predominantly economic in nature, being that the applicant was unable to attend work because of a clash between groups in Lebanon and in Syria.
The applicant also expressed his claims for protection in a statutory declaration that accompanied his protection visa application. In his opening paragraph of that statement, the applicant indicated that the basis of his fear was as a member of a particular social group as a young able-bodied Muslim man able to take arms against the Syrian regime. The general security situation was referred to in the next two to three paragraphs, including that the political aftermath of the civil war and the sectarian violence has been present for as long as the applicant can remember and that:
Lebanon is currently going through a period which creates risk for almost every Lebanese civilian. These days, Lebanon is in the midst of a sectarian war, with battles flaring up between various groups and sects, particularly worsening after the onset of the Syrian war in 2011 and the rise of ISIS in 2013. We never knew any different, and the risk of being killed by sniper fire or random bullets or rocket strikes when these battles flared up, coming to and from work or school or anywhere, made for an extremely tense existence.
Again, although in his statutory declaration the applicant predominantly referred to his particular attributes that he considered gave rise to a risk of harm, those claims were presented in the context of concerns about the general security situation in Lebanon and the risk to ‘almost every Lebanese civilian’. I do, however, acknowledge the final paragraph of the statutory declaration, to the effect that the applicant would have remained in Lebanon were it not for the more specific problems that he claimed to face.
I have considered whether the applicant’s focus on his particular attributes and specific experiences in expressing his claim to fear harm means that any general claim that clearly emerges from the materials is expressly disavowed or narrowed. I do not accept that it does. The applicant several times in advancing his claims referred to the general risks from terrorism and insecurity in Lebanon. His focus on his particular attributes does not amount to him expressly disavowing any claim that emerged clearly on the materials based on the general risk of significant harm from terrorism, whether as a resident of northern Lebanon or more generally. The focus on the applicant’s attributes also does not mean that his claims are narrowed to the point where the need to consider a claim that clearly emerges on the materials no longer arises. The more specific way in which the applicant presented his claims, particularly in the context of the refugee criterion, does not negate the more general complementary protection claim that arose based on the risk of significant harm from terrorism unrelated to the specific attributes on which the applicant focused in presenting his claims.
I am satisfied, from the applicant’s repeated references in his submission to the Department of the general risk of harm from terrorism and insecurity, as well as his references to those same risks in his statutory declaration, that a claim that he would face a real risk of significant harm from the general violence from terrorist groups emerged clearly on the materials before the Authority, even though it was not expressly articulated. The country information that refers to northern Lebanon being one of the most affected areas in Lebanon, along with the Authority’s finding that the applicant comes from Akkar region in the north of Lebanon, means that the claim that emerged is one that the applicant may face a real risk of significant harm from the generalised violence from terrorist groups as a resident of northern Lebanon. The Authority was required to consider this complementary protection claim.
Did the Authority consider whether the applicant would face a real risk of significant harm from generalised violence from terrorist groups as a resident of northern Lebanon?
I accept the applicant’s submission that the Authority did not consider the claim.
The Minister submitted that the Authority dealt with the applicant’s claim as it was put by or on behalf of the applicant. The Minister submitted that the Authority:
(a)expressly recorded that the applicant claimed to be a Sunni Muslim from the Akkar province;
(b)rejected the applicant’s claim that he faced a real chance of serious harm as a young able-bodied Muslim male and, in so doing:
(i)had regard to DFAT information and the insecurity in the region including the border region and the country more generally;
(ii)had regard to security incidents as they applied to the Sunni community;
(iii)held that Tripoli is now broadly stable, though vulnerable; and
(iv)considered the situation in Akkar in relation to the safety of Sunnis and other groups;
(c)considered the applicant’s claim for complementary protection, taking into account its earlier findings and, having disposed of the applicant’s claims for protection based on his particular attributes, it was unnecessary for the Authority to determine how the applicant would be affected by the insecurity as a result of being a person affected by the alleged claims.
Given that I have found above that an unarticulated claim clearly emerged from the materials, it is not a complete answer to this ground to identify that the Authority addressed the claims as expressly advanced by the applicant.
I do not accept that the Authority considered the unarticulated complementary protection claim that emerged on the materials. The Authority’s reasons at [25]-[29], extracted above, address the risk of harm to the applicant based on his particular attributes. In doing so, the Authority considered country information addressing the general stability and security situation in Lebanon, assessing at [25] that the security situation in Lebanon remains ‘largely stable, but unpredictable’. The Authority at [27] considered the ‘more complex’ situation in Akkar, but did so through the lens of the applicant being a Sunni, being a person who has not claimed that he, his family or his village sheltered anti-Syrian regime fighters and being a person who had not claimed to belong to any of the particular groups that had been targeted.
While some of the country information referred to by the Authority at [25]-[29] and some of its reasoning in those paragraphs might be relevant to an assessment of whether the applicant may face a real risk of significant harm from terrorism related violence as a resident of the north (and irrespective of his other specific attributes), it does not amount to consideration of that unarticulated claim which clearly emerged on the materials before the Authority.
The Authority has therefore erred by failing to consider a claim that clearly emerged on the material before it.
Materiality
In responding to the applicant’s claims as articulated in the application and written submissions, the Minister submitted that any error would not be material because s 36(2B)(c) of the Migration Act would apply. However, in oral submissions, Counsel for the Minister acknowledged that BCX16 is binding on this Court and accepted that if the Court found that the Authority failed to consider a claim that the applicant may face a real risk of significant harm from terrorism as a resident of northern Lebanon, that error would be material. This concession is appropriately made, and I accept that the Authority’s error is material and amounts to jurisdictional error.
CONCLUSION
Given that I have found that the Authority decision is affected by jurisdictional error, the application for judicial review is successful. I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconduct the review according to law.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Associate:
Dated: 8 March 2024
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