CDJ16 v Minister for Immigration

[2018] FCCA 1907

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDJ16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1907

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority (‘IAA’) – whether the IAA misunderstood the relevance of Applicant’s submissions – whether the IAA failed to take into account relevant considerations – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 359A, 424A, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473GA, 473GB, 473FB, 476

Cases cited:

NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10

Minister for Immigration and Multicultural Affairs v N989/01 [2002] FCAFC 237
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

Applicant: CDJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1643 of 2016

Judgment of: Judge Hartnett

Hearing date: 17 April 2018

Delivered at: Melbourne

Delivered on: 13 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Mallon

Solicitors for the Applicant: Norton Rose Fulbright Australia

Solicitor acting as Counsel for the First Respondent: Mr Cunynghame

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1643 of 2016

CDJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced on 2 August 2016 by the Applicant filing an application for judicial review of a decision of the Immigration Assessment Authority of 6 July 2016.  The Applicant subsequently filed an amended application on 20 March 2018, and it is the amended application on which the Applicant proceeds. The grounds of application are as annexed to these reasons for judgment (‘Annexure A’). 

2. The decision of the Second Respondent affirmed a decision of a delegate of the First Respondent dated 6 June 2016 to refuse to grant the Applicant a Safe Haven Enterprise (Class XE) (subclass 790) visa (‘the visa’).

3. The decision of the Second Respondent was made pursuant to s.473CC(2) of the Migration Act 1958 (Cth) (‘the Act’), being a migration decision as defined in s.5(1) of the Act. The Applicant submits that the decision of the Second Respondent is affected by jurisdictional error. The proceeding is brought pursuant to s.476(1) of the Act. To obtain relief from the Court, the Applicant must establish jurisdictional error in the decision of the Second Respondent.

4. The First Respondent submits that no jurisdictional error attends the decision of the Second Respondent. The First Respondent seeks dismissal of the application.  Both parties seek costs. 

Background  

1. The Applicant is a national of Lebanon, of Sunni Muslim faith and from the Akkar Province in Lebanon. He arrived in Australia on 22 September 2013 as an unauthorised maritime arrival. As such, he became subject to the Fast Track Assessment Process (‘FTAP’) a concept defined in s.5(1) of the Act. On 19 October 2015, the Applicant applied for the visa. In support of his application, the Applicant provided a statement dated 19 October 2015.

2. On or about 12 November 2015, the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant acknowledging that his application had been assessed as a valid application for the visa, and requesting additional information or documents.  On or about 4 January 2016, the Refugee Advice and Case Work Service forwarded to the Department the documents requested, being: an identity card; an individual registration card; and a family registration certificate.  On or about 7 January 2016, the Department wrote to the Applicant to invite him to attend an interview with a delegate of the First Respondent (‘the delegate’) on 3 February 2016. 

3. On 3 February 2016, the Applicant attended an interview with the delegate.  At the interview, the delegate considered the Applicant’s claims for protection.  The Applicant also raised an additional claim that, since June 2014, he had been in a relationship with a Shia Iranian woman whilst in detention.  He claimed that his family disapproved of their relationship and that, as a result, he would not be able to rely on family support if he was required to relocate within Lebanon.  At the conclusion of the interview, it was agreed by the delegate and the Applicant’s representative that a further written submission would be provided to the delegate by the Applicant. 

4. On 9 February 2016, the Applicant’s representative provided a further submission on the Applicant’s behalf to the delegate.  This submission elaborated on the Applicant’s claims to fear harm, provided independent country information in support of his claims, and contained extensive submissions to the effect that there was no effective State protection in Lebanon, and that the Applicant could not relocate within the country. 

5. On 6 June 2016, the delegate refused to grant the Applicant the visa, and referred the decision to the Immigration Assessment Authority (‘IAA’) for review under Part 7AA of the Act. The delegate largely accepted the Applicant’s claims, but did not accept that the Applicant’s claims demonstrated that he faced a real chance or real risk of harm upon returning to Lebanon.

6. By letter dated 9 June 2016, the IAA acknowledged the referral. The letter attached the practice direction issued by the President of the IAA on 21 April 2016 under s.473FB of the Act. On 27 June 2016, the Applicant’s representative sent a submission dated 24 June 2016 to the IAA, being a further submission in support of the Applicant’s response to the assessment finding of 6 June 2016. That correspondence noted that the submission did not include “any new information pertaining to the Applicants [sic] claims”. Much of it involved country information. The submissions also made reference to the Applicant’s earlier submissions of 9 February 2016.

7. The Applicant’s submissions of 9 February 2016 were not referred to in the delegate’s decision. Further, the Applicant’s submissions of 9 February 2016 were not included in the material referred to the Second Respondent pursuant to s.473CB of the Act. Accordingly, the Second Respondent, following receipt of the Applicant’s further submissions by correspondence of 24 June 2016, requested the Department to provide to the IAA the earlier submission of 9 February 2016.

8. On 29 June 2016, the IAA confirmed it had received a copy of the submissions to the Department dated 9 February 2016.  The Department confirmed that the submissions of 9 February 2016 had been available to the delegate at the time he made his decision and was therefore not considered new information. 

The Applicant’s claims

1. These are accurately set out in paragraph 10 of the First Respondent’s written submissions where the First Respondent notes that the Applicant’s written claims for protection are contained in his statement supporting the application for the visa dated 19 October 2015, and further in submissions to the delegate and the IAA.  The Applicant claimed to fear harm on return to Lebanon because:- 

   i)he is a Sunni Muslim; 

   ii)he is a young person at risk of being forcibly recruited by local militia groups;

   iii)his father is a mayor and councillor in his village and has had/or is imputed with political opinions against Hezbollah;

   iv)he is at risk of violence from ISIS/Daesh;

   v)his family disapproved of his relationship with a Shia Iranian woman in Australia and that, as a result, he would not be able to rely on family support if he was required to relocate within Lebanon; and

   vi)he is a failed asylum seeker from the West and his details were released in the Department’s data breach.

Statutory Framework

1. Part 7AA of the Act establishes a comprehensive scheme of review with respect to certain decisions to refuse to grant protection visas to fast track applicants. Division 3 of Part 7AA (ss.473DA to 473DF of the Act) deals with the manner in which reviews are to be conducted by the IAA. Subsection 473DA(1) of the Act provides that Division 3 of Part 7AA, together with ss.473GA and 473GB of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule:-

   “In relation to reviews conducted by the [IAA].”

2. Subsection 473DB(1) of the Act compels the IAA, subject to Part 7AA to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the IAA, under s.473CB of the Act:

   “Without accepting or requesting new information.”

   And:

   “Without interviewing the referred applicant.”

   However, s.473DC(1) and (2) of the Act are as follows –

   “Getting new information

   (1)  Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

   (a)  were not before the Minister when the Minister made the decision under section 65; and

(b)  the Authority considers may be relevant.

(2)  The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.”

1. New information can only be considered by the IAA if the requirements of s.473DD of the Act are satisfied. Section 473DE(1) of the Act imposes certain disclosure obligations on the IAA not dissimilar to those imposed on the AAT by ss.359A and 424A of the Act.

2. Section 36 of the Act sets out the criteria for the grant of a protection visa. It is, relevantly as follows:-

   “           (2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)  a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …”

3. Significant harm is defined in s.36(2A) of the Act as follows:-

   “(2A)  A non-citizen will suffer significant harm if:

   (a)  the non-citizen will be arbitrarily deprived of his or her life; or

   (b)  the death penalty will be carried out on the non-citizen; or

   (c)  the non-citizen will be subjected to torture; or

   (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)  the non-citizen will be subjected to degrading treatment or punishment.”

4. Section 5J of the Act is relevantly as follows:-

   “Meaning of well-founded fear of persecution

   (1)  For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)  the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)  there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)  the real chance of persecution relates to all areas of a receiving country.

   Note:          For membership of a particular social group, see sections 5K and 5L.

   (2)  A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   ...”

IAA Decision

1. The IAA noted in paragraph 2 of its decision record that a delegate of the Minister had refused the visa on finding that:-

   “… The applicant’s own evidence about his past experiences, together with the country information, indicated that there was no real chance that the applicant would face persecution or significant harm for the reasons claimed.” 

2. The IAA set out in paragraph 3 of the decision record that it had regard to the material sent to it by the Department under s.473CB of the Act. The IAA, under the heading ‘Information before the IAA’, noted that on 27 June 2016 it had received a submission dated 24 June 2016 from the Applicant’s representative.  The IAA noted that the submission referred to an earlier submission from the Applicant’s representative to the Department dated 9 February 2016.  The IAA noted that:-

   “The recording of the SHEV interview shows that at the conclusion of the interview it was agreed by the delegate and the applicant’s representative that a further written submission would be provided. However, that submission was not referred to in the delegate’s decision, nor was it included in the material referred to the IAA under s.473CB of the Act. Accordingly, the IAA requested the Department to provide the earlier submission, which it did on 29 June 2016, with advice that the submission had been available to the delegate at the time he made his decision.”

   The Tribunal noted that the February submission was:-

   “Therefore not new information.”

3. The IAA noted, in paragraph 5 of the decision record, that the submission received on 27 June 2016 responded to the delegate’s decision and referred to country information to support its arguments.  The IAA noted that most, but not all, of the country information, was before the delegate when he made his decision. To the extent that the June submission consisted of arguments addressing the delegate’s findings and reasoning, and country information that was before the delegate, the IAA noted that it was not new information and that the IAA had considered it.

4. In paragraph 6 and 7 of the decision record, the IAA noted that some of the independent country information provided to it was new information, but considered, as set out in paragraph 7:-

   “… that there are exceptional circumstances to justify considering the new information comprised of the HRW 2016 World Report and the USD0S 2015 Country Report on Human Rights Practices.”

5. The IAA noted both reports were published shortly before the delegate made his decision and represented the most recent information about an assessment of the situation in Lebanon by those authoritative sources.  The IAA noted that the Applicant:-

   “… could not have known that the delegate had not considered the February 2016 submission, or the most recent versions of the reports referred to in the submission, until the decision was received.  I have therefore considered this new information.”

Refugee Assessment

1. The IAA accepted the Applicant was a national of Lebanon and that Lebanon was the receiving country for the purposes of the Act. The IAA also accepted that the Applicant was a Sunni Muslim from the Akkar province in North Lebanon and found the Akkar province was the area of Lebanon to which the Applicant would return, as set out in paragraph 14 of the decision record.

2. The IAA did not accept that the Applicant faced a real chance of serious harm due to general insecurity in the Akkar province (‘home area’) as a result of the 2006 war with Israel or due to the civil war in Syria which the Applicant claimed had extended to his home area.

3. The IAA was not satisfied there was a real chance that the Applicant would face harm as a result of sectarian or other conflict if he returned to his home area in Lebanon in the reasonably foreseeable future. The reasoning of the IAA in that regard was as set out in paragraphs 18 to 22 inclusive of the decision record. It commences as follows:-

   “18. The applicant’s representative submitted that sectarian violence occurs throughout Lebanon including in Akkar, referring to DFAT’s advice that Sunni militant groups have a presence in Akkar, and its assessment that the security situation in Akkar is poor.  The source relied on, however, is DFAT’s February 2014 Country Report on Lebanon. I have relied on information contained in the more recent December 2015 DFAT Country Report, which indicates an improvement in the level of sectarian violence in northern areas including Tripoli.

   19. DFAT advised in its December 2015 Country Report on Lebanon that since its earlier reports incidents of sectarian violence in Lebanon had decreased, ostensibly due to successful intervention by the Lebanese authorities and new co-operation between traditionally opposed political actors, Hezbollah and the Future Movement.  DFAT assessed that while the security situation in Akkar province is complicated by its long border with Syria, there was only a low risk of residents being affected by violence, primarily cross-border attacks by the Syrian authorities which are principally aimed at anti-regime fighters, but which sometimes indiscriminately affect non-combatants. In my view, however the available information, including that provided by the applicant’s representative, does not support a finding that sectarian or other conflict occurs to such an extent in the Akkar region that a resident with the characteristics of the applicant could be considered to face a real chance of harm there, either from targeted sectarian violence or as a result of cross-border attacks carried out by Syria.  Indeed, the applicant stated at the SHEV interview that “relatively” his area is peaceful, compared to Tripoli.”

   (Footnotes omitted.)

4. The IAA went on to find relevantly, at paragraphs 20 to 22 of the decision record, the following:-

   “20.  DFAT assesses that Sunnis remain at moderate risk of harm from sectarian violence in one area of Tripoli, the Sunni suburb of, Bab al-Tabbeneh;  with the meeting point of Bab al-Tabbeneh and the predominantly Alawite suburb of Jabal Mohsen, “a recurring flashpoint”.  DFAT advises that the security situation in Tripoli has improved following the successful implementation of a security plan in April 2014, although incidents of sectarian violence still occur. While the applicant claimed in his SHEV application that his family needed to go to Tripoli for supplies, he indicated at the SHEV interview that he had never been to Tripoli.  I find that even if the applicant did need to visit Tripoli for some limited purpose such as shopping for supplies, there is no reason arising from the evidence before me to suggest that he would not be able to avoid Bab al-Tabbeneh and its surrounds.  DFAT assesses, and I  accept, that the risk of harm in other areas of Tripoli, either in Sunni targeted sectarian violence or as a random casualty of such violence, is low.  Given this evidence and the information about the number of such attacks in 2015, I find that there is no real chance that the applicant faces harm as a result of sectarian or other conflict in Tripoli.

   21.    The applicant’s representative submitted that Hezbollah has the capacity to undertake targeted actions throughout Lebanon, despite its geographic concentration in particular Shia areas.  There is no information before me from any source, however, that indicates that Hezbollah has undertaken any targeted attacks in Akkar.  The instances of attacks on Sunnis by Alawite militia (aligned with Hezbollah) which are cited in the submission are all confined to Tripoli.  In these circumstances, I do not accept that the applicant faces a real chance of harm from Shia militia, as a Sunni Muslim living in Akkar. 

   22.    The applicant claims that his school has been closed for periods of time because of security problems caused by sectarian fighting.  His evidence about these incidences was somewhat vague – for example, at the SHEV interview he appeared to indicate that he was referring to the period during 1986 when Israel attacked Lebanon, but also referred to the “civil war”, by which he appears to mean Syria’s civil war.  At the SHEV interview he stated that when sectarian conflict was very intense in Tripoli, his school was targeted by Shia groups because it was a Sunni school; he said that people involved in the fighting moved into surrounding areas. I am prepared to accept that the applicant’s school has been closed from time to time because of security incidents; this could have been during the 1986 conflict with Israel, and also more recently during the conflict in Syria, which has reportedly led to increased sectarian tension and some fighting in Northern Lebanon, including some attacks by Syrian forces on villages in North Lebanon.  Even accepting that the applicant’s school was targeted by Shia armed groups during periods of intense conflict in Tripoli, the country information about the decreased level of conflict in Tripoli leads me to conclude that there is no real chance of similar future attacks.  I accept that the applicant’s education may have been disrupted.  However, I am not satisfied on the basis of the credible evidence before me that the applicant suffers harm amounting to persecution as a consequence.”

   (Footnotes omitted.)

Militia activity around the Applicant’s village

1. The IAA did not accept that the Applicant was at risk of being forcibly recruited by militia or kidnapped by such groups due to the war in Syria and sectarian violence in Tripoli.  In this regard the IAA relied on independent country information which indicated that recruitment by such groups was of willing participants and that there was nothing to suggest that young Sunni men such as the Applicant were being forcibly recruited.

2. The IAA noted further that Hezbollah did not have a substantial presence in Akkar where the Applicant lived and that the Applicant’s own evidence did not suggest “that he is a vulnerable child who might be targeted for recruitment, as he lives with his family which appears to be reasonably well-off”.[1]  The IAA also found that country information did not indicate that the Applicant might experience social pressure to enlist that would amount to persecution or any form of harm.

   [1] Decision Record of the IAA, paragraph 27.

Presence of ISIS/Daesh

1. The IAA noted that the Applicant feared ISIS or Daesh which the Applicant had claimed had an increasing presence in his area.  The IAA said as to the available country information before it as set out in paragraph 30 of the decision record:-

   “The available information indicates that the main ISIS or Daesh presence in Lebanon is in the eastern region, around Arsal, which borders fiercely contested areas of Syria. While there is some information indicating that Daesh and other extremist groups have some presence and support in Akkar, and that the concerns of the applicant and his family about the safety of young men in the current climate is shared to an extent by other residents, based on the available information about the presence and capacity of Daesh and similar groups to harm members of the Sunni community in the applicant’s home region – including the absence of any reports of such harm as opposed to the expression of fears by residents – I am not satisfied that he faces a real chance of harm there, now or in the reasonably foreseeable future.

Father’s political profile

1. The IAA did not accept that the Applicant was at risk of harm due to his father’s political profile.  The IAA noted that the Applicant’s evidence in support of this claim was vague.  The Applicant had provided no information about his father’s political allegiance, his political views, or whether he was involved in any organised political party.  The IAA found the information provided by the Applicant about his father did not suggest that his father’s profile was in any way similar to those political leaders who might be targeted by Hezbollah. 

2. There was no information before the IAA from any source to suggest that local mayors would be regarded as “high-profile” political leaders or that they were targeted by Hezbollah or any other group.  The IAA noted that the Applicant’s father, mother and several siblings remained living in the village, and the Applicant had not claimed that they had faced any kind of harm since the Applicant had left Lebanon.  Further, the IAA relied on the independent country information provided by the Applicant to find that the Applicant’s father did not have a profile which would attract adverse attention from groups such as Hezbollah.

Data breach

1. The IAA did not accept that the Applicant was at risk of harm due to the Department’s 2014 data breach.  The IAA relied on country information which indicated that Lebanon “has a long history of migration and return”,[2] with about 16 million Lebanese living overseas but retaining close family or business relationships in Lebanon that see them return frequently, as advised by DFAT.  Further, DFAT advised that seeking asylum overseas was not a crime, and that:-

   “… generally, there would be no stigma attached to a returning asylum seeker in their home community or anywhere else; nor would they be at risk of discrimination or violence, even if they were recognised as a returning asylum seeker.”[3]

   [2] Decision Record of the IAA, paragraph 32.

   [3] Ibid.

2. The IAA also considered that there was no evidence to suggest that the Applicant’s personal details would have been accessed by anyone in Lebanon.  Alternatively, even if his details had been accessed, the IAA did not accept that this would result in a real chance of harm faced by the Applicant.  Further, the IAA did not accept the Applicant would be at risk of harm upon return to Lebanon from groups such as Hezbollah, given his profile, which included being a returning individual returning from a Western country.

Relationship with Shia woman

1. The IAA noted that DFAT assesses that interconfessional relationships and marriages can attract significant societal and official discrimination and, in some circumstances, violence.  The IAA, however, did not accept that the Applicant was at risk of harm due to his relationship in Australia with an Iranian Shia woman.  The IAA noted that the Applicant’s own evidence was that because his family disapproved of his relationship, they may not provide the level of support he would need if he were to return to Lebanon and relocate to Beirut to avoid harm in his home area.  Given the IAA did not accept that the Applicant faced a real chance of harm in his home area, the question of relocation within Lebanon, such as to Beirut, did not arise.

Other matters

1. The IAA said, in paragraph 40 of the decision record, the following:-

   “The applicant’s submission 9 February 2016 contains extensive discussion of state protection and relocation.  Because I have found that the applicant does not face a real chance of persecution or of significant harm in his home area, it is not necessary to consider these issues.”

2. In conclusion, the IAA found the Applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Act; the Applicant did not meet s.36(2)(a) of the Act. This was so because, in light of its anterior factual findings, the IAA found there was no basis arising from the credible information on which it could be satisfied that the Applicant faced a real chance of harm of any kind, now or in the reasonably foreseeable future, should he return to Lebanon, for the reasons claimed.

3. Additionally, under the heading ‘Complementary Protection Assessment’, the IAA noted, in paragraph 45 of the decision record, that the Applicant had not made specific claims to complementary protection separate from those put forward in relation to the refugee criteria. Relying on its anterior findings made in relation to the refugee criteria, the IAA was also satisfied that there was not a real risk that the Applicant would face significant harm upon his return to Lebanon. The IAA noted that it had found there was not a real chance that the Applicant would face harm for any of the reasons proffered by the Applicant, including if they were considered cumulatively. The IAA concluded that the Applicant did not meet s.36(2)(aa) of the Act.

4. Paragraph 46 of the decision record is as follows:-

   “… I have found that the applicant does not have a well-founded fear of persecution in the security climate prevailing in Lebanon now and for the reasonably foreseeable future, in that there is no real chance that he would face serious harm in Lebanon for any of the reasons claimed,  including his status as a young Sunni man, because of his father’s role in local government and politics, because his personal details were revealed in the data breach, because he would return to Lebanon as a failed asylum seeker who has resided in a Western country, because he would return to Lebanon as a failed asylum seeker who has resided in a Western country, because of his relationship in Australia with a Shia Iranian woman, or in the context of general insecurity and sectarian conflict. I have found that there is not a real chance that he would face harm for any of these reasons, including if they are considered cumulatively. Based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for these reasons.”

5. The First Respondent made oral submissions about the reference to Lebanon in paragraph 46 of the decision record (above), as being:-

   “… not ideal. It could have made a finding against the applicant’s home area. It didn’t do that, but, in my submission, it didn’t need to. The finding is clearly premised with reference to its findings under s.36(2)(a), and the vast majority of those findings are with reference to the Applicant’s home area. It’s uncontroversial to submit that the IAA’s decision should be read as a whole. And it simply can’t be the inference that that paragraph should be read in isolation as suggesting that the IAA has made findings of fact against the applicant’s home area being Lebanon as a whole. When regard is had to the IAA’s substantive findings under the Convention, they are premised all against the home area of the applicant’s area, being Akkar province.”

Consideration

1. The amended application raises two particularised grounds of review.  The Applicant claims that in its findings, as set out in paragraph 40 of the decision record, the IAA misunderstood the relevance of those parts of the submissions, being the submission of 9 February 2016, to the Applicant’s claim for a protection visa. 

Ground one

1. By ground 1(a), the Applicant contends that the IAA misunderstood the relevance of the Applicant’s submissions on effective State protection and relocation, which were “part and parcel” of the Applicant’s claims to fear harm. 

2. By ground 1(b), the Applicant contends that the IAA erred by considering effective State protection and relocation in the alternative to whether the Applicant faced a real chance of serious harm in his home area of the Akkar province. 

3. By ground 1(c), the Applicant contends that the IAA erred by failing to consider the Applicant’s submissions concerning effective State protection and relocation under ss.5J(1)(c) and 5J(2) of the Act.

4. The Applicant submitted that, as a consequence, the IAA erred in finding that the Applicant did not face a real chance of persecution or of significant harm, under s.5J and s.36(2)(a) of the Act in his home area, because submissions specifically directed to his home area were not taken into account and submissions, in relation to Lebanon, generally, which included his home area, were not taken into account.

5. The First Respondent submitted that the Applicant’s grounds are misconceived. The First Respondent submitted that it is clear that the IAA considered the Applicant’s submissions, concerning effective State protection and relocation, as set out in paragraph 40 of the decision record.  However, the IAA found it was not necessary to consider effective State protection and relocation in circumstances where it had found that the Applicant did not face a real chance of persecution or significant harm in his home area of the Akkar province.

6. The Court agrees with the First Respondent that the Applicant’s grounds are misconceived.  The IAA rejected the Applicant’s claim to fear harm in his home area. A decision-maker must be satisfied, as a matter of fact, which satisfaction was not reached in the circumstances of this case, that the Applicant has a well-founded fear of persecution or a real risk of significant harm in their home area before being required to consider the reasonable possibility of relocation or effective State protection.[4] The IAA did so upon a consideration of the material before it concluding that it was not satisfied that the Applicant had a well-founded fear of persecution or real risk of significant harm in his home area.   That was a finding open to the Tribunal and supported in the decision record of the Tribunal.  Having made that finding, there was no need for the IAA to consider the question of effective State protection and/or the reasonable possibility of relocation. The issue of relocation only arises in situations where the decision-maker accepts that an Applicant’s fear of harm is well-founded, but finds that such harm is localised to a particular area.[5]

   [4] SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634, 96.

   [5] Ibid.

7. In grounds 1(d) and (e), the Applicant claims that the IAA failed to consider the Applicant’s submission in relation to effective State protection and relocation in the context of the Applicant’s claims to fear harm in Lebanon generally (ground 1(d)) and the Applicant’s home area (ground 1(e)).  These grounds are particularised to refer to extracts of the Applicant’s submissions to the IAA in which the Applicant referred to country information relied on in support of the Applicant’s claim to fear harm in his home area and Lebanon more generally.

8. These grounds relate back to the consideration of grounds 1(a), (b) and (c) in that, as the Court finds, contrary to the Applicant’s submissions, the IAA did consider the Applicant’s 9 February 2016 submissions, as referred to in paragraph 40 of the decision record; in particular, those parts of the submissions which concerned effective State protection and reasonable relocation.  As the IAA was not satisfied that the Applicant faced a real chance of persecution or significant harm in his home area, there was no obligation upon it to consider the Applicant’s claims to fear harm in other areas of Lebanon.

9. By grounds 1(f), (g) and (h), the Applicant contends that the IAA erred in finding that the Applicant did not face harm in his home area without taking into account the Applicant’s submissions on no effective State protection and relocation (ground 1(f)); erred by finding it was not necessary to consider effective State protection and relocation (ground 1(g));  and failed to take into account relevant considerations, being the submissions on effective State protection and relocation.

10. Again, the Applicant’s claim is met by the Court finding that the IAA was not required to consider effective State protection and reasonable relocation in the circumstances of the Applicant’s case, given the findings it had made.  It is clear from those parts of the Tribunal’s decision record referred to in these reasons, that the IAA was conscious of the content of the Applicant’s submissions dated 9 February 2016 making reference, for example, to earlier country information contained therein.  The Applicant cannot argue successfully that the IAA did not have regard to those submissions.  Given its findings, however, the IAA noted that questions of effective State protection and relocation did not arise, and the Applicant’s submissions going to relocation and effective State protection were not relevant to the IAA’s determination of the matter.

11. The Court accepts the First Respondent’s submission that the choice and assessment of country information is a factual matter for the IAA.[6]  The IAA made clear that it had regard to the Applicant’s evidence which was before it, which included the 9 February 2016 submissions. There was no obligation on the IAA to reach a conclusion different from that which it did based on the country information before it, and, as submitted by the First Respondent, to the extent that the Applicant suggests the IAA should have reached a different conclusion based on country information, such an argument amounts to impermissible merits review.[7]

    [6] NAHI v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 10, 11-13.

    [7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

12. Ground 1 is not made out.

Ground two

1. By ground 2(a), the Applicant contends that the IAA failed to take into account relevant considerations, being the Applicant’s submissions on effective State protection and relocation. By ground 2(b), the Applicant contends that the IAA erred by failing to understand that the Applicant’s submissions on effective State protection and relocation were required to be considered under consideration of s.36(2B) of the Act. By ground 2(c), the Applicant contends that the IAA erred in finding that the Applicant did not have a well-founded fear of persecution in Lebanon, and that he would not face a real chance of serious harm in Lebanon, when the IAA’s findings had been limited to the Applicant’s home area.

2. The answer to this ground is really a repetition of that to the first, namely, that in circumstances where the IAA found that the Applicant did not face a real chance of significant harm in his own area, questions of State protection and relocation did not arise, save, under this ground, those questions as referable to the complementary protection criteria, as set out in ss.36(2B)(a) and 36(2B)(b) of the Act. The Tribunal noted specifically, that the Applicant did not make any specific claims to fear harm under the complementary protection criteria separate from those under the refugee criteria.

3. I accept the submission of the First Respondent that it is uncontroversial that the IAA was entitled to rely on its anterior findings that there was no real chance of harm under the refugee criteria to also find there was no real risk of significant harm under the complementary protection criteria.[8] 

   [8] SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, 56.

4. While the IAA does refer to Lebanon in its complementary protection findings, as opposed to the Applicant’s home area, as set out in paragraph 40 of these reasons, the First Respondent submitted that this is of no consequence, as it was clear that the IAA was rejecting that the Applicant faced a real risk of significant harm in his home area, which was necessarily and specifically captured within its reference to Lebanon. Those submissions are referred to in paragraph 41 of these reasons.  The First Respondent further submitted:-

   “The IAA’s reasons must be read fairly and [as] a whole[9] without an eye keenly attuned to error.[10]”

   [9] Minister for Immigration and Multicultural Affairs v N989/01 [2002] FCAFC 237, 17.

   [10] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1986) 185 CLR 259.

5. The Court accepts these submissions. Ground 2 cannot be made out.

6. It is plain on the face of the decision record of the IAA that its decision was based on the evidence that was before it, which included the Applicant’s claims and supporting evidence as well as relevant country information.  The findings made by the IAA were open to it on the material available, and involved a correct application of the law.

7. The application will be dismissed with costs.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 13 July 2018

‘Annexure A’

1. The second respondent when considering the application of the applicant under section 5J and subsection 36(2)(a) of the Migration Act 1958 (Act):

   a.misdirected itself in that it misunderstood the relevance of those parts of the submissions on “no effective state protection” and “relocation” to the applicant's claims for a protection visa;

Particulars

The submissions on “no effective state protection” and “relocation” were part and parcel of the applicant's submissions under subsections 36(2)(a) and 5J of the Act and needed to be taken into account, not just in the alternative, if the applicant's claims with respect to the Akkar Province failed.

b.misdirected itself in that it treated the requirements under subsection and subsection 5J(1) and subsection 36(2)(a) and the way that the applicant had put his application. as a staged process when it is not:

Particulars

The submissions on “no effective state protection” and “relocation” were part and parcel of the applicant's submissions under subsections 5J(1) and 36(2){a) of the Act and needed to be taken into account, not just in the alternative, if the applicant's claims with respect to the Akkar province failed.

c.further and in the alternative, misdirected itself in that it failed to understand that the submissions on “no effective state protection” and “relocation” were necessarily required to be considered under subsections 5J(1 )(c) and (2) of the Act;

d.failed to consider and take into account that the submissions in relation to “no effective state protection” and “relocation” were made in relation to Lebanon generally, that Lebanon includes the Akkar Province and therefore were required to be taken into account;

Particulars

RACS Submissions made on 9 February 2016 including but not limited to:

(i)Court Book page 78: “… Lebanon is, as a whole, too dangerous a place for the Applicant, as a young person, to live ..”: see page 11 paragraph 3 (the second paragraph under that heading):

(ii)Court Book page 79: DFAT Smart Traveller website: “…Sporadic anti-government protests continue to occur throughout Lebanon, some of which have escalated into clashes between protesters and security forces…”: see page 12 (second paragraph on that page); and

(iii)Court Book page 83: “…the Applicant would be at risk of serious harm if he were forced to return anywhere in Lebanon including the capital of Beirut…” see page 16, first paragraph.

e.failed to consider and take into account the specific submissions made in relation to the Akkar Province under the submissions on “no effective state protection” and “relocation”;

Particulars

RACS Submissions made on 9 February 2016 including but not limited to:

(i)Court Book page 78: “…Lebanese security forces have imperfect control over parts of Tripoli and Akkar Province in North Governorate…” see page 11, paragraph 2 (first paragraph under the heading).

f.erred in finding that the applicant did not face a real chance of persecution or of significant harm in his home area without taking into account the submissions on “no effective state protection” and “relocation”;

g.erred in finding it was not necessary to consider the “extensive discussion of state protection and relocation” contained in the RACS submission of 9 February 2016; and

h.failed to take into account relevant consideration being the submissions on “state protection” and “relocation”.

1. The second respondent, when considering the application of the applicant under subsections 36(2)(aa) and 36(2A) of the Act:

   a.failed to take into account relevant considerations being the submissions as to “no effective state protection” and “relocation”;

Particulars

(i)Court Book page 87: “... The applicant made his claim under subsection 36(2)(aa) based on the same evidence that he had used with respect to his claim under subsection 36(2)(a) which included the submissions on “no effective state protection” and “relocation” …”: see second paragraph; and

(ii)Court Book page 141: “…These submissions were not considered by the second respondent...”: see paragraph 40.

b.further and in the alternative misdirected itself in that it failed to understand that the submissions on “no effective state protection” and “relocation” were necessarily required to be considered under subsection 36(2B) of the Act; and

c.misdirected itself when it found that the applicant did not have a well-founded fear of persecution in the security climate prevailing in Lebanon now and for the reasonably foreseeable future, in that there is no real chance that he would face serious harm in Lebanon for any of the reasons claimed, when the finding had been limited to the Akkar Province.

Particulars

(i)In determining the application under subsection 36(2)(aa) of the Act the second respondent was required to consider the distinct and separate considerations of that provision of the Act;

(ii)the second respondent purported to do so but relied upon its prior findings made under subsection 36(2)(a) of the Act:

(iii)the second respondent states: “… As discussed above, I have found that the applicant does not have a well-founded fear of persecution in the security climate prevailing in Lebanon now and for the reasonably foreseeable future …” : see paragraph 46 of the decision of the second respondent; Court Book page 142; however

(iv)the second respondent had made no such finding “as above” rather it had made a finding that the application “… does not have a well-founded fear of persecution, in that there is no real chance that he would face serious harm in his home area in Akkar Province…”: see paragraph 41 of the decision of the second respondent; Court Book page 141.