CNK18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 277
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CNK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 277
File number(s): SYG 1373 of 2018 Judgment of: JUDGE CAMERON Date of judgment: 27 February 2025 Catchwords: MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle. Legislation: Migration Act 1958 (Cth) ss 36, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 20 Date of hearing: 1 February 2024 Place: Sydney Applicants: The first, second and third applicants appeared in person Solicitor for the Respondents: Minter Ellison ORDERS
SYG 1373 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CNK18
First Applicant
CNL18
Second Applicant
CNM18
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
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 CAMERON
INTRODUCTION
The first applicant (Applicant) is a citizen of Lebanon who arrived in Australia on 9 January 2014. The second and third applicants, who are her husband and daughter respectively, are citizens of Jordan. On 7 April 2014 the Applicant lodged an application for a protection visa with what is now the Department of Home Affairs (Department), alleging that as a Sunni Muslim she feared persecution in Lebanon where there was sectarian violence. On 30 May 2014, the second applicant applied for a protection visa as part of the Applicant’s family unit. The third applicant was born in Australia and was included in the Applicant’s visa application. A second child was not a party to the AAT review. On 6 February 2015 the application was refused by a delegate of the first respondent (Minister). The applicants then applied to the second respondent (Tribunal) for a review of that departmental decision.
The Tribunal decision the subject of these proceedings is the second such decision relating to the applicants. A previous Tribunal decision dated 3 January 2017 (First Decision) was quashed by consent on 21 March 2017 and the matter remitted to the Tribunal for rehearing, as a result of which a second decision was made by the Tribunal on 26 April 2018 (Second Decision). The applicants were unsuccessful before the Tribunal as secondly constituted and have applied to this Court for judicial review of that decision.
In this judicial review proceeding the Court cannot reconsider the applicants’ application for visas. Its task is to determine whether the Tribunal’s Second Decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth)(Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
LEGISLATION
The Act relevantly provides:
…
36 Protection visas
(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 under the Refugees Convention as amended by the Refugees Protocol; 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; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa.
…
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
…
The United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (Convention) relevantly defines a refugee at Article 1A(2), as a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
BACKGROUND FACTS
In the Second Decision the Tribunal summarised the Applicant’s claims made to the Department, and to the Tribunal as first constituted, as follows:
(a)the applicants were Sunni Muslims and sectarian violence and rivalry between Sunni and Alawi Muslims meant she could no longer reside in Lebanon. She also feared that rising tensions between Lebanon and Syria might lead to war;
(b)her apartment was in close proximity to fires and explosions because it was in a Sunni neighbourhood and it and she had been shot at. The Applicant attributed a miscarriage she suffered in September 2013 to the stress of these incidents. She also claimed that Lebanon’s army was too preoccupied with general civil unrest to protect her;
(c)her brothers had started to be targeted five months earlier and one of them was nearly killed when a bomb went off near the family business, which was less profitable as a consequence of ongoing conflict in the area in which her family lived. She claimed that people wanted revenge on her brother and might target her, but was unable to identify who these people were. She claimed that what had happened to her brother could happen to her;
(d)her father was in danger and her five brothers were in gaol unjustly;
(e)she did not want to raise her children amongst the civil and inter-religious conflict that existed in Lebanon and her husband would divorce her if she was forced to return to Lebanon; and
(f)when asked why she could not live in Jordan with the second applicant, the Applicant claimed that her husband’s family resented her and that her mother-in-law was hostile, rude and had mistreated her and hit her more than once, complaining that Lebanese women were ill-mannered and spoilt. She also claimed that she was only permitted to remain in Jordan for periods of up to three months at a time.
The second applicant made claims of his own to the Tribunal as first constituted, which were summarised in the Second Decision as follows:
(a)he would refuse to live in Lebanon if the Applicant was removed from Australia to there and would prevent their daughter from accompanying her;
(b)his mother disapproved of their marriage because the Applicant was Lebanese, had slapped the Applicant and would remove the applicants’ children if they returned to Jordan. He claimed that men in Jordan were expected to live near their families, which he said meant he could not relocate; and
(c)because he worked for the Uniting Church, if he returned to Jordan he would be perceived as a Christian convert by his family and could become estranged from society and killed.
The Applicant made the following additional claims to the Tribunal as secondly constituted:
(a)since the First Decision, her father had died which caused her mother and brother to relocate to another house where other family members already lived. She claimed it was too crowded for the Applicant, her husband and children to reside there and food was scarce in the region;
(b)in response to reports that battles between Lebanese and Syrians appeared to be occurring in border locations rather than in Tripoli, the Applicant said “I only live in fear”. She said that she feared a possible future break-out of pre-2014 violence. She also said that if she is removed to Lebanon, the second applicant will take her children with him to Jordan; and
(c)she was only allowed to visit Jordan for three months at a time but had never made enquiries about her rights to enter and reside in Jordan because she did not want to live there.
The second applicant also claimed to the Tribunal as secondly constituted that:
(a)his children could not acquire Lebanese citizenship because they were children of a Jordanian father which would also prevent them from being able to reside long-term in Lebanon;
(b)state protection did not work in Jordan, but did not elaborate. He said that he could not relocate his family to Jordan because Jordanian men were expected to live close to their families. He went on to say that that traditional aspects of life in Jordan mean that he could not say “no” to his mother, let alone involve the police in discouraging her from harassing his wife and children. He said that his mother wanted to take his children from him and the Applicant, although he did not suggest that any law or tradition would enable his mother to do so.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the Applicant and her family were persons to whom Australia has protection obligations under the Convention or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
(a)the Tribunal accepted the Applicant’s claims about what had occurred in 2012 to 2013 including that her brothers had been detained, that other members of her family lived in the community despite feeling fearful, that the storefront of her family business was damaged by a bomb, that the profits of her family business declined, that her family moved to a new home, that the economic situation in Tripoli was strained and that her family’s circumstances were adversely impacted by economic challenges in Tripoli;
(b)the Tribunal gave weight to information provided by the Department of Foreign Affairs and Trade (DFAT) in a report entitled DFAT Country Information Report: Lebanon dated 23 October 2017 (Report). The Report demonstrated that:
(i)the Tripoli security plan had held and was likely to continue into the future;
(ii)a person required more characteristics than being Sunni or Alawi to attract serious or significant harm in Tripoli; and
(iii)violence between Sunni and Alawi Muslims was its worst on the border region where the second applicant had formerly crossed on a regular basis.
(c)the Tribunal found that the independent information provided by DFAT suggested that non-Lebanese residents in Lebanon might experience difficulties in accessing education and other benefits but that did not amount to serious or significant harm and gave this information little weight in assessing the applicants’ stated fears;
(d)little weight was given to the Applicant’s claim that the family would break up, in particular that the second applicant would prevent the Applicant’s children from residing with her in Lebanon should the Tribunal make a negative decision. The Tribunal noted that the applicants were married in Lebanon and resided there for a time, which also indicated that it was easier for the applicants to reside there on a long-term basis than had been suggested in their claims;
(e)the Tribunal was not satisfied that the Applicant would suffer discrimination amounting to persecution in Lebanon for marrying a Jordanian national;
(f)the Tribunal gave some weight to the suggestion that the Applicant’s family business continued to operate in Tripoli at reduced profits. However, it gave little weight to the suggestion that previous violence and disturbances or then-existing economic conditions had a significant bearing on the applicants’ ability to reside in Tripoli in the future;
(g)the Tribunal was ultimately not satisfied that the applicants faced a real chance of persecution in Lebanon as Sunni Muslims or for any other actual or imputed religious affiliation;
(h)the Tribunal was not satisfied that the second applicant faced a real chance of persecution in Jordan, because of, amongst other things, his subjective views about Islan or his employment in Australia with the Uniting Church;
(i)the Tribunal found that the evidence about the Applicant’s fears claimed for her and her children in Jordan to be inconsistent, exaggerated and invented. The Tribunal did not accept that the Applicant’s mother-in-law ever hit her, or that she would be able to prevent her or anyone else from entering her home. The Tribunal said that it gave no weight to the suggestion that the second applicant’s brother overbore the applicants, or that the Applicant’s mother-in-law wanted to take the Applicant’s children away, let alone that there is a real chance of her doing so. The Tribunal was not satisfied that the applicants could not reside away from close and easy scrutiny from the Applicant’s mother-in-law, or avail themselves of state protection from anti-Lebanese prejudice from within or beyond the second applicant’s family; and
(j)the Tribunal found that the Applicant had not taken all steps to avail herself of the right to live in Jordan, permanently or temporarily, as the spouse of a Jordanian subject. The Tribunal applied the same reasoning to the second and third applicants, who, it was found, had not availed themselves of rights to reside in Lebanon.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicants alleged:
1.The Member misunderstood our harm and risk should we return to Lebanon or Jordan and misapplied the law.
2.The Member of the Tribunal used own experience in Lebanon and stated that he knew Lebanon well. In doing such the information undermined the applicant's fear of relocating. The issue of not being able to relocate was not properly understood by the Member.
Ground 1
The first ground of the application is, in substance, no more than an invitation to the Court to reconsider the merits of the applicants’ visa application and to reach a finding on the risk they might face returning to Lebanon or Jordan different from the one reached by the Tribunal. As noted earlier in these reasons, the Court cannot do that. Further, the allegation that the Tribunal “misapplied the law” fails to identify in what way that is said to have occurred. It is incumbent on a party who alleges a legal error in the Tribunal’s reasoning to identify what it is said to be, not least to permit the respondent to understand the case that is being made. That has not occurred except to the extent that the second applicant submitted at the hearing of this application that the Tribunal had failed to consider country information available to it. However, that submission is not correct. The Tribunal’s decision record makes it plain that it did not fail to have regard to country information provided by the Department of Foreign Affairs and Trade, together with other country information.
The first ground of the application discloses no jurisdictional error affecting the Tribunal’s decision.
Ground 2
The second ground of the application turns not on a matter apparent from the Tribunal’s reasons or its conduct of the review. Instead, it relies on a statement by the Tribunal member who conducted the first review (First Tribunal Member), which was set out in the reasons for the First Decision in the following terms:
11. After the adjournment she claimed the situation in Tripoli was not good, neither was the situation in Lebanon and it was about to experience war. It was put to her that there was no evidence that the country was about to erupt in war, the Member knew Lebanon well and had taken his family on holiday there last December. …
No basis has been advanced to suppose that the member who conducted the review the subject of the present application (Second Tribunal Member) relied on personal experience that had not been raised with the applicants such that they could address it. Nor was it demonstrated that, in reaching his findings and conclusions, the Second Tribunal Member drew on the personal experiences of the First Tribunal Member.
In the circumstances the second ground of the application does not identify a jurisdictional error affecting the Tribunal’s decision.
Generally
In any event, the Tribunal found that the Applicant could reside in Jordan and that the other applicants could reside in Lebanon and that on the facts s.36(4)(b) and s.36(5A) of the Act did not apply, with the effect that, under s.36(3) of the Act, no protection obligations attached to them. That conclusion has not been challenged and is an independent basis for the Tribunal’s decision.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been made out.
Consequently, the application will be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 27 February 2025
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