CIY15 v Minister for Immigration

[2017] FCCA 1696

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIY15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1696

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: CIY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3038 of 2015

Judgment of: Judge Street

Hearing date: 20 July 2017

Date of Last Submission: 20 July 2017

Delivered at: Sydney

Delivered on: 20 July 2017

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Firmstone & Associates

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to file in Court the application in a case.

2. Grant leave to the applicant to rely upon the amended application filed in Court signed and dated 20 July 2017 and dispense with the requirement for any electronic filing of the same.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3038 of 2015

CIY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 October 2015, affirming a decision of the Delegate not to grant the applicant a protection visa.

2. The applicant was found to be a stateless person and that Lebanon was his country of former habitual residence and against which his claim for protection was assessed.

3. The applicant first arrived in Australia on 3 December 2005 on a student visa. The applicant last entered Australia on a student visa in May 2011, and held a student visa until 11 March 2014. The applicant applied for a temporary business visa on 28 June 2013 but withdrew that application. The applicant lodged an application for protection on 11 March 2014, the day of expiry of his last student visa.

4. The applicant claimed to fear harm in Lebanon because he would face racism, violence, disrespect and mistreatment. The applicant claimed he would be imputed with a political opinion and would be harmed by Palestinian militants and/or Hezbollah. The applicant further claimed that he would be unable to rely on police for protection, he would face being randomly shot, he was restricted as to where he could live and have the ability to access health and medical cover, he lacked work rights, and would be unable to subsist. On 13 August 2014, the Delegate declined to grant the applicant a protection visa and found the applicant failed to meet the criteria under the Act.

The Tribunal’s decision

1. The applicant applied for review of the Delegate’s decision on 8 September 2014. The applicant appeared before the Tribunal to give evidence and present arguments on 4 September 2015. The Tribunal identified the applicant’s background and set out the applicant’s claims and evidence. The Tribunal identified the relevant law in an annexure incorporated into the reasons of the Tribunal.

2. The Tribunal noted that the applicant did not apply for protection in Australia until he had been here for several years and was asked why he waited for the delay in doing this. The Tribunal noted the applicant claimed he had been considering applying to be a skilled migrant but the rules changed and later the Lebanese restaurant he worked at promised to sponsor his immigration although it was not eligible to do so. The applicant said that it was then that he went to a migration agent.

Refugee assessment

1. The Tribunal found the applicant’s evidence regarding his claims to lack credibility and provided detailed reasons for finding the applicant not to be a reliable, credible, or truthful witness, and found that the applicant had fabricated his claims in order to be granted a protection visa.

2. The Tribunal, in its summary in relation to the hearing, noted claims of the applicant in respect of killings around the camps and was asked about his claim in respect of being pressured to join a group. The applicant refused to join in 2008, the Tribunal found, without any consequences. The Tribunal observed that the applicant did not have any evidence that people who refused were harmed and that the applicant said he would try and get some information. The applicant asserted that the situation had become worse and it would be more likely to happen. The Tribunal noted that the applicant was asked to provide country information about being forced to join Palestinian groups and persons who were injured if they refused.

3. In the course of the Tribunal’s reasons the Tribunal referred to not accepting that the applicant would be targeted by unnamed Palestinian militants. The Tribunal had rejected that the applicant would be of interest of Hizbullah.

4. The Tribunal was willing to accept that the applicant may have been asked to join a group in 2008 by a friend, and noted that the applicant had refused and his friend had accepted that the applicant had no interest as he wanted to study. The Tribunal noted the applicant had never been asked again, and that no one had pressured him over his refusal. It was in these circumstances the Tribunal said there is no country information available to the Tribunal that would indicate that Palestinians with the applicant’s background are forced to join groups or punished if they do not, nor was any provided to the Tribunal.

5. The Tribunal found that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

Complementary protection assessment

1. The Tribunal found that they were not substantial grounds for believing that as a necessary and foreseeable consequence of the being removed from Australia to Lebanon, there is a real risk that the applicant will suffer significant harm on the basis of the claims outlined in the complementary protection criterion in s.36(2)(aa).

2. The Tribunal found the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) and affirmed the decision under review.

Proceedings before this Court

Grounds of the application

1. The ground in the amended application is as follows:

   Ground 4: Relevant Considerations - Country Information

   4. The Second Respondent (Tribunal) failed to take into account a relevant consideration in the exercise of power or failed to give proper, genuine or realistic consideration of the applicant's claims.

   Particulars

   d) The Second Respondent failed to take into account, relevantly the country information.

   Protection Claims

   e) From [36]-[37] of the decision record, the applicant is a stateless Palestinian who was born and has lived all of his life in Lebanon and claims that if he returned to Lebanon he would face racism, violence, disrespect and mistreatment, would be harmed by Palestinian militants and/or by Hizbullah, faced being randomly shot, restricted in where he could live, unable to subsist, lacked work rights, would be unable to rely on police, imputed with a political opinion, and unable to access health and medical cover.

   Palestinian Militants

   f) At [57] of the decision record, the second respondent found:

   I also do not accept that he would be targeted by unnamed Palestinian militants. I am willing to accept that he may have been asked to join a group in 2008 by a friend but he refused and his friend accepted that the applicant had no interest as he wanted to study. He had never been asked again and no one had pressured him over his refusal. There is no country information available to the Tribunal that would indicate that Palestinians with the applicant's background are forced to join groups or punished if they don't, nor was any provided to the Tribunal.

   Country Information

   g) Contrary to the finding by the Tribunal at [57], there was an abundance of country information which was provided to the Tribunal.

   h) From page 76 to 86 of the Court Book, Nazim El Bardouh, the former solicitor for the applicant from Bardo Lawyers, provided a submission to the Tribunal which detailed the relevant country information. In particular, the former solicitor to the applicant provided the following country information with regard to the finding by the Tribunal at [57].

   i. At page 78 [38] (reproduced in full at page 196):

   According to the President of the CLDH, Palestinians are more at risk of “arbitrary detention”, “torture”, and “kidnapping” (5 October 2011. The US Department of State corroborates that Palestinian refugees are arrested arbitrarily and detained by state security forces and rival Palestinian factions (8 April 2011, 10).

   ii. At page 78, [40] (reproduced at page 196):

   In reference to kidnappings, the President of the Canadian Immigration and Refugee Board (CIRB) stated that Palestinian refugees have been arrested and investigated by illegal armed groups in the refugee camps. She specified that these kidnappings occur “without supervision of any judicial system”.

   iii. At page 171, country information was provided to the Tribunal in the form of an article by Josh Wood from the New York Times, titled “Palestinian refugees flee Syria to find poort conditions in Lebanese Camps” dated 29 May 2013. In particular:

   iv. At page 174, [3]:

   Lebanon's Palestinian refugee camps have aslo long been a battlefield for domestic and froeign groups looking to wild influence. A short walk through many camps will pass posters for the militant Shiite Muslim movement, Hezbollah; Palestinian jihadi groups like Al Aqsa Martyrs' Brigade; has been communist groups; Presidnet Bashar al-Assa of Syria; Saad Hariri, the former prime minister of Lebanon; and many others. In some camps there are regular bouts of violence between the dizzying numbers of factions operating in them. With little else to do, youn men join the militias.

   v. At page 179-180, “Palestinian Rivals 'Agree Ceasefire in Ain el-Hilweh”by Naharnet Newsdesk, 28 August 2015;

   vi. At page 181, Three Dead in Clashes at Ain el-Hilweh, by Nahamet Newsdesk, 28 August 2015;

   vii. At page 190, “UN agency expresses concern over plight of civilians in southern Lebanon refugee camp “, 25 August 2015;

   viii. At page 191 , ‘Tensions escalate between Palestinian groups in Lebanon's refugee camp after assassination, 30 July 2015;

   ix. At page 195, “Lebanon: Treatment of Palestinian refugees, including information on identity documents, mobility rights, property rights, access to social services, education and employment and living conditions”, Canada Immigration and Refugee Board of Canada, 15 November 2011 , cited above at (h).

   x. At page 212, “Palestinian refugee camp in Lebanon becomes battlefield for Fatah-Islamist conflict”, by Adnan Abu Amer, 4 September 2015;

   xi. At page 214, “Two killed in Lebanon's largest Palestinian refugee camp” by #InsideLebanon ( 22 August 2015;

   xii. At page 218, “Case Three: Refugee Mobilisaion and the Political Legitimacy of the PNA”, by Salim Tamari,

   i) The finding by the Tribunal at [57) that there was “no country information available...nor was any provided to the Tribunal” with regard to the applicant's claim that he faces a real risk of harm from Palestinian militants was erroneous and as a result, the Tribunal failed to take into account relevantly the country information regarding this aspect of his claim, constituting a jurisdictional error.

   (Errors in original)

Consideration

1. Mr Williams of counsel, on behalf of the applicant, took the Court to paragraph 16 of the Tribunal’s reasons in relation to the reference to a request for information and both orally and in his written submissions, as well as, to paragraph 57 of the Tribunal’s reasons and the country information that was before the Tribunal.

2. Mr Williams submitted that the country information was inconsistent with the concluding sentence of paragraph 57 by the Tribunal and that the Tribunal had failed to take into account a relevant consideration, being country information, in the determination of the applicant’s claims and fears. Mr Williams identified that in response to paragraph 16, there was country information provided to the Tribunal. It is apparent from the Tribunal’s reasons that it took that country information into account. The Tribunal’s reasons in paragraph 57 should not be read as indicating that the Tribunal did not have regard to the country information provided to the Tribunal.

3. The reasons, on a fair reading, reflect the Tribunal identifying that the country information provided by the applicant did not demonstrate that the applicant, as a stateless Palestinian, will be forced to join groups, or punished if he did not. There was no failure by the Tribunal to take into account a relevant consideration and there is no failure by the Tribunal to give proper, genuine, and realistic consideration to the applicant’s claims.

4. The Tribunal did not fail to take into account, on the material before the Court, the country information before the Tribunal. The adverse findings in relation to the applicant’s claims, based on the country information, were open to the Tribunal in the present case and cannot be said to be lacking an evident and intelligible justification. No jurisdictional error, as alleged in Ground 1 of the amended application is made out.

Conclusion

1. The amended application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  3 August 2017