CPO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 962
Federal Circuit and Family Court of Australia
(DIVISION 2)
CPO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 962
File number(s): SYG 1855 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 November 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal made error of the sort identified in Applicant S395 – application dismissed. Legislation: Migration Act 1958 (Cth) s 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05
Cases cited: Appellant S395/2002 v Minister for Immigration and Cultural Affairs [2003] HCA 71
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19
DQU16 v Minister for Home Affairs [2021] HCA 10
SZTEO v Minister for Immigration & Anor [2015] FCCA 2228
Division: General Number of paragraphs: 22 Date of hearing: 8 October 2021 Place: Sydney Counsel for the Applicant: Mr O Jones, by video Solicitor for the Applicant: Unisaj Legal Counsel for the First Respondent: Mr T Reilly, by video Solicitor for the First Respondent: Minter Ellison ORDERS
SYG 1855 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CPO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 nOVEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $5,600.
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
introduction
The question that arises in this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal), in deciding to affirm the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa), made an error of the sort the High Court identified in Appellant S395/2002 v Minister for Immigration and Cultural Affairs.[1]
[1] Appellant S395/2002 v Minister for Immigration and Cultural Affairs [2003] HCA 71; (2003) 216 CLR 437
claims for protection
The applicant, who is a national of Lebanon, stated his claims in a statement that formed part of his application for a Protection visa as follows:[2]
(a)The applicant’s father is a Sunni, and the applicant’s mother is an Alawite. Since his childhood the applicant was attached to his maternal uncles, and was influenced by them to adopt the Alawi faith. All five of the applicant’s maternal uncles are living in Syria, and they support President Al-Assad against terrorism and radicalism.
(b)Everyone knew the applicant is an Alawite; and whether or not the applicant supported President Al-Assad, the applicant was perceived to be a supporter of Al-Assad’s regime. The applicant could not avoid this perception after the sectarian conflicts increased in Lebanon. The applicant did not deny he supported President Al-Assad “against the entire terrorism”.
(c)Due to the applicant’s having his “right to have any political opinion”, he was approached by some extremists who have links with the militias in Syria.
(d)While living in the Sunni part of Tripoli the applicant was targeted and threatened to be killed “as far as [the applicant] supported the Syrian president”.
(e)In April 2013, while the applicant was driving in a particular suburb going home from work, a car followed him and suddenly opened fire and shot at the applicant. The applicant was not hurt, but he increased his speed until he “disappeared from them”.
(f)After the shooting the applicant made his way to Beirut where he stayed at a hotel until the following morning. When he arrived at the hotel, the applicant called the number that was “ringing all the time while [he] was driving.” The “respondent” was very aggressive, “named and screamed” at the applicant. The “respondent” said “they would catch and kill” the applicant, and threatened that if the applicant reported to the police “they would kill” the applicant’s family.
(g)The applicant was “scared to report the incident to the police as [he] was very concerned about his family’s wellbeing”. In the morning the applicant’s wife and children hired a taxi and joined the applicant in Beirut. The applicant maintained a low profile, but “they again found” the applicant, and “attempted to assassinate [the applicant] by a fatal car accident”.
(h)The applicant fears to go back to Lebanon because he fears he will be harmed because of his faith, his membership of a particular social group, and his imputed political opinion.
[2] CB 34-35
The applicant made a second statement in May 2017, in which he provided additional details to the claims he made in his first statement.[3] The second statement included a claim that in the morning the applicant’s wife and children had hired a taxi to join the applicant in Beirut. The applicant had maintained a low profile in Beirut, but “they again found [the applicant] and attempted to assassinate [the applicant] by a fatal car accident when a car tracked [the applicant] and rammed [his] car”. The applicant lost control of the car, and he hit a concrete slab on the side of the road. When in Beirut the applicant worked as an electrician. That required him to travel to his customers everywhere in Lebanon. The applicant also worked as a taxi driver, driving passengers from the airport to their destination.
[3] CB265
Tribunal’s findings and reasons
The Tribunal was prepared to accept the applicant identifies as an Alawite, and that people in communities in Lebanon and in Australia perceive and consider the applicant to be an Alawite.[4] The Tribunal also accepted the applicant’s claims that:[5]
(a)in April 2013 the applicant was driving a vehicle and returning from Tripoli when another vehicle approached and fired a number of shots into his vehicle;
(b)after the shooting the applicant received a telephone call from a person who threatened the applicant and his family if he were to report the shooting incident to the police;
(c)the applicant and his family relocated to Beirut for one week after the incident;
(d)the applicant was targeted because he was seen to be an Alawite, or because of his imputed or actual political beliefs, or both;
(e)the applicant received a call after the shooting from a person who threatened the applicant; and the person knew the applicant’s mobile number, and also knew the applicant had a family; and
(f)the shooting incident was a targeted incident, and not an act of random violence.
[4] CB288, [53]
[5] CB288, [54]
The Tribunal also accepted the applicant’s claim that, when in Tripoli in 2011, the applicant was asked, but the applicant declined, to join a security detail for a Sunni sheik who lived in the neighbourhood and in the applicant’s street.[6] The Tribunal noted, however, that the applicant said he did not suffer any adverse consequences or harm as a result of his refusal, but the neighbours who had approached him looked at him differently after the applicant refused to join; but in many respects, the approach by Sunni people to the applicant runs counter to the applicant’s claims that he was perceived in his neighbourhood to be an Alawite.[7]
[6] CB289, [56]
[7] CB288-289, [56]
The Tribunal accepted the applicant’s vehicle was rammed, but it did not accept it was done deliberately. The Tribunal relied on the applicant’s evidence of the incident being comparatively brief. The applicant did not indicate he recognised the people in the other vehicle. The ramming incident occurred some 18 months after the shooting incident, but the applicant did not claim he had any difficulties between the two incidents, even though during that time the applicant worked part time as a taxi driver, and also drove extensively for his work as an electrician.[8]
[8] CB289, [57]
The Tribunal ultimately found that the evidence does not indicate or suggest the applicant was of ongoing interest to extremists in Lebanon, and that he would be at risk of a real chance of serious harm on the basis of his claims if he were to return to Lebanon either now or in the reasonably foreseeable future.[9] The Tribunal relied on the following matters:
(a)The applicant did not claim he had any difficulties “in terms of any incidents of harm” between the car shooting and car ramming incidents.[10]
(b)The applicant’s address in Tripoli is in an area removed from, the vicinity of an area which country information shows historically is a flashpoint in, the conflict between Sunni and Alawite extremists in Tripoli.[11]
(c)Country information shows that Tripoli is now broadly stable, though vulnerable to outbreaks of violence; that sectarian violence between Sunnis and Alawites in Tripoli has historically been limited to two suburbs, which meet in a particular street; and that Alawites living in other areas of Tripoli face a lower risk of violence which is avoided relatively easily.[12]
(d)The applicant has not been involved with any of the militias in Lebanon, and did not indicate that he had been engaged in any armed fighting in Lebanon.[13]
(e)When in Beirut the applicant continued to visit his family in Tripoli at least once a month and, apart from the incident involving his car, the applicant did not claim he had faced any other harm, or that he had received any threatening telephone calls, or that any members of his family had been threatened.[14]
(f)Although the Tribunal accepted the applicant was perceived by his neighbours to be an Alawite, it found that the fact he was asked to join a security detail indicates that the applicant’s neighbours had no animosity towards the applicant because of his Alawite faith, or because of his imputed or actual political opinion of supporting the Assad regime in Syria, or because he belonged to a particular social group that comprised of Alawites or sect members.[15]
(g)The applicant’s agent provided to the delegate a submissions to explain why the applicant did not apply to leave Lebanon immediately after the shooting incident, but decided to do so after the ramming incident. The applicant’s agent submitted the applicant had forgotten about the shooting incident until the later car incident. The applicant’s agent’s explanation does not indicate or suggest the applicant “was concerned longer term about the shooting incident”.[16]
(h)Country information indicates that instances of sectarian violence tend to be targeted at people who express strong political views, and who are politically active.[17] The applicant’s evidence, however, did not suggest that he satisfies the political profile that country information indicates would put him at risk. The incident in April 2013 occurred at a time when country information shows there was heightened sectarian violence between competing militias in and around Tripoli, which resulted in innocent bystanders being killed and injured by stray bullets. The country information indicates that the applicant may have been targeted on that one occasion because he was identified as a member of the Alawite community or sect, or because he was perceived to have an imputed or actual political opinion of supporting the Assad regime.[18]
[9] CB290, [62]
[10] CB289, [57]
[11] CB289, [58]
[12] CB289-290, [58]
[13] CB290, [58]
[14] CB290-291, [62]
[15] CB290, [60]
[16] CB291, [62]
[17] CB290, [60]
[18] CB290, [61]
The Tribunal concluded its review of the evidence with these findings:[19]
The Tribunal’s assessment of the overall evidence and country information is that the incident in April 2013 was an isolated incident that occurred during heightened sectarian tensions in and around Tripoli at that time. The Tribunal notes that the applicant’s family continues to reside in the family home in a neighbourhood of Tripoli. The Tribunal notes that the applicant has previously been able to obtain employment in Lebanon and has also obtained employment in Australia. The applicant told the Tribunal that his family also owned a home in Syria. Tripoli is the applicant's home area in Lebanon and it appears from documentation provided to the Tribunal that he is accepted as a member of the Alawite community in Tripoli. That information also indicates or suggests to the Tribunal that the applicant enjoys the support of the Alawite community in Tripoli. As noted elsewhere in these reasons the applicant's family has not suffered any harm since the applicant has been in Australia.
[19] CB291, [63]
ground of application
The applicant relies on the following ground of application:
The Second Respondent (Tribunal) made a jurisdictional error based on the principle in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (Appellant S395).
a.The Tribunal found at paragraph 54 of its decision that the Applicant had faced harm through a shooting incident in April 2013 on account of his Alawite identity and imputed or actual political beliefs (shooting incident);
b.The Tribunal found at paragraph 55 of its decision that the Applicant was not politically active in Lebanon.
c.The Tribunal found at paragraph 60 of its decision that country information indicated that instances of sectarian violence tend to be targeted at the politically active in Lebanon.
d.The Tribunal found at paragraph 61 of its decision that the Applicant would not have a political profile which would place him at risk of harm in accordance with the country information.
e.The Tribunal failed to ask why the Applicant was refraining from political activity in Lebanon and whether doing so was connected with the shooting incident.
In his written submissions the applicant submitted the Tribunal has fallen foul of the Appellant S395, as summarised by the High Court in DQU16 v Minister for Home Affairs.[20] Before I identify the reasons on which the applicant relies for this submission, it will be necessary to set out the facts and decision in Appellant S395, and the principle or principles for which Appellant S395 stands as authority.
[20] DQU16 v Minister for Home Affairs [2021] HCA 10
Appellant S395
In Appellant S395 the visa applicants claimed they had a well-founded fear of persecution in Bangladesh because they were homosexuals;[21] and, for that reason, were each “refugees” within the meaning of Art 1A(2) of the Convention relating to the Status of Refugees, 1951, and the Protocol relating to the Status of Refugees (together “the Refugees Convention”). The Refugee Review Tribunal (RRT) found that homosexuality was not accepted or condoned by society in Bangladesh, and that in Bangladesh it was not possible to live openly as a homosexual, but that Bangladeshi men could have homosexual affairs or relationships if they were discreet. The RRT found the applicants were in a homosexual relationship, but also found that they did not experience serious harm or discrimination. The RRT found the visa applicants conducted themselves in a discreet manner, and there would be no reason to suppose they would not continue to act in a discreet manner if they returned to Bangladesh.
[21] In this and the following two paragraphs I substantially reproduce what I said in SZTEO v Minister for Immigration & Anor [2015] FCCA 2228, at [11]-[14]
In two joint judgments, each given by two justices, a majority of the High Court held the RRT made a jurisdictional error because the RRT did not consider why the visa applicants would choose to conduct themselves discreetly if they returned to Bangladesh. That was an important question; it was possible the visa applicants intended to live discreetly to conceal they were in a homosexual relationship, and thus avoid the persecution they would otherwise have risked if they were to live in an open homosexual relationship. If that were their intention, the visa applicants would have met the definition of “refugee” within the meaning of Art 1A(2) of the Refugees Convention. A person who has a well-founded fear of persecution “for reasons of” the person’s race, religion, nationality, membership of a particular social group, or political opinion, is not expected to take such steps that are available to him or her to prevent that person from being perceived by persecutors, in his or her country of nationality, to be a person of that race or nationality or religion, or a member of that particular social group, or a person who holds that political opinion.
Two related principles, therefore, can be derived from the majority judgments in Appellant S395. The first is that the causal nexus[22] required by the definition of “refugee” in Art 1A(2) of the Refugees Convention between, on the one hand, a person’s actual or perceived race, religion, nationality, membership of a particular social group, or political opinion (Convention characteristics) and, on the other, the person’s well-founded fear of persecution, will not be taken not to be established only because the person is capable of taking action that would prevent the person from being perceived by persecutors, in his or her country of nationality, to be a person who possesses any Convention characteristics.
[22] “There must be some relevant causal link between the postulated ground (membership of a “particular social group”) and the entitling condition (“well-founded fear of being persecuted”). The one must provide the reason for the other.” - Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, at [67] (Kirby J)
The second principle is that the causal nexus required by the definition of “refugee” in Art 1A(2) of the Refugees Convention between a person’s Convention characteristics and the person’s well-founded fear of persecution, will also not be taken not to be established only because that person has in fact taken steps, or intends to take steps, to conceal those characteristics. In those circumstances, the person may still be found to have a well-founded fear of persecution. Whether or not the person will have such well-founded fear, however, will depend on the reason or reasons for which the person concealed, or intends to conceal his or her Convention characteristics. If the reason is the person’s desire to avoid persecution, of which he or she has a well-founded fear of persecution, because of his or her Convention characteristics, the person will still be regarded as having a well-founded fear of persecution.
In DQU16 the High Court identified the principle for which AppellantS395 stand as authority, and the rational of that principle:[23]
The principle for which Appellant S395 stands is that “a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, to avoid a real chance of persecution”. The principle “directs attention to why the person would or could be expected to hide or change behaviour that is the manifestation of a Convention characteristic” (emphasis added).
The rationale for the principle is that a person who would otherwise be entitled to protection under s 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecution by sacrificing a protected attribute under the Convention. The principle, and its rationale, ensure that “the very protection that the Convention is intended to secure” for those facing persecution because of a protected attribute is not undermined, or surrendered, by requiring such a person to conceal that attribute on return to their home country.
[23] DQU16 v Minister for Home Affairs [2021] HCA 10, at [8]-[9] (footnoted omitted)
Determination
The ground on which the applicant relies is predicated on the contention that the applicant had claimed he “was refraining from political activity in Lebanon”.[24] That implies the applicant claimed that before or after the shooting incident he had either participated in political activity, or that he intended to engage in political activity. The applicant, however, made no such claim; and the applicant has not submitted there was any material before the Tribunal on the basis of which it ought reasonably to have concluded the applicant claimed he had either participated in political activity, or that he intended to engage in political activity.
[24] Paragraph (e) of the particulars
The applicant claimed he held or was perceived to hold certain political beliefs, namely, support for the Assad regime and its policies. The applicant did not claim that, before the shooting incident, he had engaged, or he had intended to engage, in any political activity in connection with those political beliefs. The Tribunal, therefore, assessed the applicant’s claims for protection on the basis of the political opinions the applicant claimed he has, or would be perceived to hold. In those circumstances there was no occasion for the Tribunal to have asked the applicant why the applicant refrained from any political activity after the shooting. The applicant did not claim he refrained or intended to refrain from any political activity.
The facts in Appellant S395 are different from the facts in this case. In Appellant S395 the RRT found that the visa applicants bore a particular Convention characteristic, namely, being homosexual, which would expose them to risk of harm if they manifested that characteristic in the returning country. The error the High Court held the RRT made is that the RRT concluded the visa applicants would not face a risk of harm because they would not manifest their homosexuality in Bangladesh without asking why the visa applicants would not manifest their homosexuality in Bangladesh.
That is not the case with the applicant in the case before me. The Tribunal found the applicant did not manifest any Convention characteristic, and therefore did not find or assume the applicant faced no risk of harm in Lebanon after the shooting incident because he had modified or altered any Convention characteristic, or that he intended or would or could modify such characteristic if he were to return to Lebanon.
The ground on which the applicant relies, therefore, fails.
disposition
I will dismiss the application.
Counsel for the parties agreed that costs should follow the event; and counsel for the Minister submitted that the Minister’s costs, if the Minister succeeds, be set in the amount of $5,600. I am satisfied that costs should follow the event and $5,600 is a fair indemnity of the costs the Minister has incurred in resisting this application. I will therefore order that the applicant pay the Minister’s costs set in the amount of $5,600. I will also order a name change in relation to the Minister.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 November 2022
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