CCT17 v Minister for Immigration

[2020] FCCA 1916

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCT17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1916

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by being unreasonable.

PRACTICE & PROCEDURE – Late application to amend pleading – relevant considerations.

Legislation:

Migration Act 1958, ss.36, 474

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: CCT17

Second Applicant: CCU17

Third Applicant: CCV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1521 of 2017

Judgment of: Judge Cameron

Hearing date: 30 June 2020

Date of Last Submission: 30 June 2020

Delivered at: Sydney

Delivered on: 17 July 2020

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Firmstone & Associates

Solicitor for the Respondents: Ms K Evans of Sparke Helmore

ORDERS

1. The applicants file and serve an amended application in the form annexed to the affidavit of Sam Issa sworn 15 June 2020 within seven days.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1521 of 2017

CCT17

First Applicant

CCU17

Second Applicant

CCV17

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicants are citizens of Lebanon.  The first and second applicants arrived in Australia on student visas in October 2010.  Their son, the third applicant was born in Australia in July 2011.  On 1 July 2013 the applicants lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”) where initially only the first applicant made claims alleging that he feared persecution in Lebanon because he was a Sunni Muslim, his wife was a Shia Muslim and marriages between the two sects were no longer tolerated in Lebanon.  He also feared persecution because the second applicant’s sisters’ husbands had indirectly threatened to harm him and kidnap his son.  On 12 June 2014 the second applicant made her own claims, alleging she had been threatened by her sisters’ husbands.  On 16 December 2014 the applicants’ application was refused by a delegate of the first respondent (“Minister”).  The applicants then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision.  They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. The applicants’ claims for protection were made in their application, at an interview with the delegate on 12 May 2014, in the second applicant’s interview with the delegate on 18 September 2014, at a Tribunal hearing on 9 November 2016 and in the second applicant’s statutory declarations dated 20 November 2015 and 20 October 2016.

2. As summarised by the Minister in his written submissions, the applicants relevantly made the following claims:

   3.1The first applicant was a Sunni Muslim from [a non-metropolitan part of] Lebanon.  The second applicant was born a Shia Muslim, though neither the first nor second applicants were committed members of their faiths. 

   3.2Their families did not approve of their marriage because they were from different Islamic sects.  Whilst nobody tried to physically harm them, they felt ostracized by members of both sects. 

   3.3Since their arrival in Australia, tensions had escalated between Sunnis and Shi’ites in Lebanon.  Interfaith marriages were no longer tolerated. 

   3.4When the second applicant returned to Lebanon in order to visit her ill father, she was surprised by the resentment she faced from her family and members of the Shia community, who strongly advised her to leave her husband and stay in Lebanon.  In addition, the second applicant had been threatened by her brothers-in-law, who were high-ranking members of Hezbollah and the Syrian Hizb El Komi.  The brothers-in-law considered her marriage to a Sunni to have brought indignity on their family and told her that they would kidnap her son if she chose to return to the first applicant.  They also indirectly threatened to harm the first applicant if he returned to Lebanon. 

   3.5The second applicant was advised by her sister that the brothers-in-law were planning to carry out their threats to kidnap the third applicant.  She fled Lebanon and returned to Australia. 

   3.6The applicants could not rely on the protection of the Lebanese authorities as the second applicant’s family were well-connected with Hezbollah, who remained the most powerful political and military force in the country.  The first applicant feared that his son would be kidnapped and also feared the rising sectarian violence and ongoing kidnappings in Lebanon.

   4.On 12 May 2014, the first applicant attended an interview with a delegate of the Minister (CB 106).  On 12 June 2014 the second applicant submitted a Part C application for a protection visa, advancing her own claims for protection (CB 76).  The second applicant’s claims were generally consistent with the first applicant’s.  The second applicant claimed that her brothers-in-law had threatened to harm her and her husband, or to kidnap their child, because she was married to a Sunni (CB 84).  On 18 September 2014, the second applicant attended an interview before the same delegate (CB 107).  On 16 December 2014, a delegate of the Minister refused to grant the protection visas (CB 102-123).

   5.On 23 December 2014, the applicants lodged an application for review with the Tribunal (CB 127).  On 24 November 2015, the applicants’ representative sent to the Tribunal a statutory declaration completed by the second applicant (CB 135-138).  The second applicant claimed that sectarian tensions were escalating and people in inter-faith marriages were being targeted by radicals (CB 136).  The second applicant claimed to fear harm from Sunni radicals (CB 137).  The second applicant claimed that her family could obtain custody of her son by applying to a Shia religious court (CB 138). 

   6.On 24 October 2016, the applicants’ representative contacted the Tribunal attaching a further statutory declaration from the second applicant (CB 149-151) as well as country information (CB 152-184). … The new claims advanced in the statutory declaration can be summarised as follows:

   6.1The second applicant feared harm due to membership of a particular social group—“Abused Muslim Women in Lebanon”. 

   6.2Both Sunnis and Shi’ites oppressed women and place unreasonable restrictions on their conduct, appearance, and “social/moral expectations”.  There were also increasing reports that Muslim women in Lebanon were being beaten or killed by their husbands or relatives.  Women were increasingly being forced to wear headscarves and stay at home. 

   6.3The second applicant did not want to return to her country where she would be oppressed.  She would be prohibited from venturing out alone or taking up employment.  She would be forced to wear a headscarf as well as modest dress.  She would be oppressed by her husband’s family as well as her own. 

   6.4The first applicant was open-minded and did not expect her to comply with these requirements in Australia.  However, he had repeatedly warned her that she would be expected to comply with these restrictions in Lebanon because it would embarrass him if she did not.  If she did not comply with the restrictions she would be opposed by his relatives or other fundamentalists who may harm her. 

   6.5During her last visit to Lebanon the second applicant was forced to wear a headscarf and cover up by the first applicant’s relatives. 

   …

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I also adopt:

   11.… The Tribunal considered it relevant that the second applicant and her son had returned twice to Lebanon since her arrival in Australia in 2010 (CB 219, [56]).

   12.The Tribunal accepted the second applicant’s evidence, that if returned to Lebanon she would live in the first applicant’s village … , and that it was a socially and religiously conservative place where women were required to cover their heads when in public (CB 219-20, [59]). However, the Tribunal noted the second applicant’s oral evidence that she had previously visited [the village] and covered her hair and did not accept that conforming to societal expectation in relation to dress amounted to “serious harm” (CB 219-20, [59]). The Tribunal noted that the second applicant had first raised claims regarding persecution on the basis of her refusal to conform to societal expectations in her statutory declaration dated 20 October 2016. It considered that if she strongly held such objections she would have raised this claim earlier and it did not accept her explanation that her failure to do so was because she did not want to embarrass or cause a conflict with her husband. For the same reason, the Tribunal rejected the second applicant’s claim to fear persecution involving serious harm from her husband’s family or the [village] community (CB 219, [60]).

   13.In relation to the second applicant’s claim that her rights would be infringed due to her membership of the particular social group “abused Muslim women in Lebanon” (which the Tribunal understood to be ‘women in Lebanon’ or ‘Muslim women in Lebanon’), the Tribunal found that the any discrimination the second applicant may face would not be sufficient to amount to persecution (CB 221, [65]). Further, the Tribunal noted that there was no evidence that she had been a victim of domestic violence in the past or that there would be a real chance that she would face such harm in the reasonably foreseeable future (CB 221, [64]).

   14.The Tribunal did not accept that the second applicant’s claim that the first applicant would restrict her ability to go out alone, or undertake education or employment.  The Tribunal noted that the first applicant was aware of her previous studies and considered that if he objected to women being educated, he would not have married her.  On this basis, the Tribunal did not accept that there was a real chance the first applicant would change preventing her from pursuing these activities (CB 221[sic], [61]). Nor did the Tribunal accept that the second applicant would face discrimination in relation to employment that would amount to persecution (CB 221, [65]).

   15.… The Tribunal accepted that the second applicant had converted to the Sunni sect in order to marry him and considered that the marriage was legal (CB 218, [53]). The Tribunal did not consider the first applicant’s claim of growing tensions between the Sunni and Shiite sects and that inter-faith marriages were no longer tolerated was supported by independent evidence. Accordingly, the Tribunal did not accept that since their marriage, attitudes had changed so much that there was a real risk chance that the first applicant, his wife or son would be killed (CB 218, [54]).

   16.The Tribunal did not accept that there was a real chance that the applicants would be victims of sectarian violence including sectarian motivated kidnappings or killings or kidnappings generally, if they returned to Lebanon and lived in [the village] (CB 222, [67]). Having considered the applicants’ claims and the evidence before it, the Tribunal concluded that the applicants did not have a well-founded fear of persecution (CB 222, [67]). On the basis of its anterior findings of fact, the Tribunal was also not satisfied that there was a real risk of the applicants suffering significant harm should they be returned to Lebanon (CB 222, [68]-[71]).

THE PROCEEDING IN THIS COURT

1. An order was made at the call over in this matter on 22 January 2020 that any amendment of the application had to be sought by application in a case filed no later than eight weeks before the trial.  Somewhere between four and eight weeks before the hearing, the applicants retained counsel who advised amendment of the initiating application that had been filed in 2017.  The applicants filed an application in a case on 16 June 2020 seeking leave to amend their application.  A copy of the proposed pleading was annexed to the affidavit sworn on 15 June 2020 by the applicants’ solicitor, Mr Issa, and filed in support of that interlocutory application.

2. Based on Mr Issa’s affidavit I find that the delay in pursuing the amendment arose out of the applicants’ lack of funds.  I consider that to be a satisfactory explanation for that delay.

3. At the hearing, the Minister did not suggest that if leave to amend were granted he would be prejudiced beyond the costs which would be thrown away by reason of the amendment, including those arising because the change in position had been foreshadowed so late and in contravention of the order of 22 January 2020.  An order was made protecting the Minister’s costs position in the event that leave to amend was granted.

4. Consequently, the only matter remaining in contention on the application to amend concerns whether the proposed amendments are sufficiently meritorious that the applicants should be allowed to prosecute them.  On that basis the Court heard full argument on them with a view to deciding the question of leave, and perhaps the proceeding as a whole, in light of those arguments.

5. In the proposed amended application the applicants pleaded:

   Ground 1:

   The Tribunal made a jurisdictional error with respect to inter-confessional relationships.

   Particulars:

   a.The real chance test requires a chance that is substantial and not remote or far-fetched, regardless of whether it is less or more than 50 per cent (see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 389, 398, 407, 429; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]-[247]);

   b.The law of legal unreasonableness required an evident and intelligible justification for the Authority’s decision (see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [82]);

   c.Proper, genuine and realistic consideration requires the Authority to engage in an active intellectual process directed towards the Applicant’s case (see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [45];

   d.The Tribunal found at paragraph 54 of its decision that, on the one hand, country information assessed that inter-confessional relationships “can attract significant societal and official discrimination and, in some circumstances, violence” while, on the other, country information indicated that “mixed marriages were widespread in Lebanon”;

   e.The Tribunal did not properly apply the real chance test, make a finding of fact with a relevant justification or engage in proper consideration by proceeding on the basis that the second item of country information negated that first, instead of considering whether, notwithstanding the widespread fact of mixed marriages in Lebanon, such couples nonetheless faced discrimination and violence.

6. A second proposed ground was abandoned.

Ground 1

1. The Tribunal said in para.54 of its decision record:

   As I put to [the first applicant] and [the second applicant], there is no suggestion in their evidence that anyone attempted to prevent their marriage.  In his statutory declaration accompanying his application [the first applicant] said that since they had come to Australia in October 2010 resentment between the two communities had been escalating and marriages between the two sects were no longer tolerated.  At the hearing before me he said that it was completely different from before.  However I do not consider that this claim is supported by the independent evidence.  I am aware that the Australian Department of Foreign Affairs and Trade assesses that inter-confessional relationships can attract significant societal and official discrimination and, in some circumstances, violence.  However, as I put to both [the first applicant] and [the second applicant], the UN Special Rapporteur on Freedom of Religion or Belief who visited Lebanon in April 2015 reported that mixed marriages, including those between people from different schools of Islam, were widespread in Lebanon.  I do not accept that attitudes have changed so much in Lebanon since [the first applicant] and [the second applicant] were married in 2010 that there is a real chance that their marriage, which was accepted by both their families at that time, will now result in either of them or their son being killed.

2. The applicants submitted that the report of the United Nations (“UN”) Special Rapporteur on Freedom of Religion or Belief who visited Lebanon in April 2015, was central to the Tribunal’s conclusion and the Tribunal relied on it notwithstanding what was said in the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report - Lebanon, 18 December 2015, to which the Tribunal referred.  They argued that the Tribunal preferred the UN report over the DFAT report but that preference was unexplained and so lacked an evident and justifiable explanation as well as, it was contended, the benefit of being the product of a proper, genuine and realistic consideration of the available evidence.

3. The material finding made in para.54 of the Tribunal’s decision was that the applicants had not persuaded it that:

   … since they had come to Australia in October 2010 resentment between the two communities had been escalating and marriages between the two sects were no longer tolerated.

   The country information cited by the Tribunal was that, as at 2015, “inter-confessional relationships [could] attract significant societal and official discrimination and, in some circumstances, violence” but that nevertheless “mixed marriages, including those between people from different schools of Islam, were widespread in Lebanon”.  Neither of the sources cited by the Tribunal supported a conclusion that the situation in Lebanon for couples with different religious backgrounds had deteriorated between the first and second applicants’ marriage in 2010 and the Tribunal’s hearing in 2017, whether to the degree alleged by the applicants and perhaps at all.  Specifically, although the DFAT report painted a bleaker picture than the UN report, neither report supported a conclusion that mixed marriages were “no longer tolerated” in Lebanon. 

4. The Tribunal’s reasoning was based on that fact rather than on a preference for one report over another.  As the Minister submitted in addresses, the Tribunal did not use one report to “undermine” the other.  The factual basis of the alleged jurisdictional error is therefore not made out.

CONCLUSION

1. Although jurisdictional error has not been demonstrated, the proposed allegation was arguable.  In circumstances where the only prejudice which the proposed amendment might cause the Minister has been addressed in the costs order made at the trial, I conclude that leave to amend should be granted.  However, the application, as amended, should be dismissed for the reasons given.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date:     17 July 2020