CSC15 v Minister for Immigration
[2018] FCCA 2694
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSC15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2694 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether Tribunal failed to make a finding on the Applicant’s claims or failed to comply with s.425 of the Migration Act 1958 (Cth) – whether the Tribunal decision was affected by legal unreasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.424, 424A, 425 |
| Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 AEK15 v Minister for Immigration and Border Protection [2016] FCAFC 131; (2016) 244 FCR 328 |
| First Applicant: | CSC15 |
| Second Applicant: | CSD15 |
| Third Applicant: | CSE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3406 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 13 June 2017 |
| Date of Last Submission: | 7 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Godwin (direct access) |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent quashing the decision made on 19 November 2015.
A writ in the nature of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 1 August 2014.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3406 of 2015
| CSC15 |
First Applicant
| CSD15 |
Second Applicant
| CSE15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 19 November 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicants protection visas.
The Applicants are a husband and wife and one of their children. They are citizens of Lebanon. They applied for protection visas on 11 February 2014. Only the first named Applicant (referred to for convenience as the Applicant) made protection claims. His wife and child applied as members of his family unit.
In a statutory declaration in support of the protection visa application, the Applicant claimed that he was a Muslim Sunni who had served in the Lebanese Army from 1990. He gave details of his postings and promotions. He claimed he was an officer when he came to Australia in November 2013.
The Applicant initially claimed that in January 2009, after he had been promoted to Major, he was moved to a posting near a particular checkpoint in Lebanon. He claimed that in February 2013 he was conducting a routine check on vehicle occupants when the two occupants of one vehicle presented him with a Hezbollah identification card and claimed that they were “resistance”. The Applicant claimed that he confiscated arms he located in the boot of this vehicle, arrested the two men and handed them over to the Military Police. He later found out that the men had been released without charge. The Applicant claimed that a week later a similar incident occurred, involving another member of Hezbollah.
The Applicant claimed that about a month and a half later one of his officers told him that the Hezbollah leadership was not happy with his confrontation with their members passing through the checkpoint. The Applicant claimed that he did not take this warning very seriously as it did not come directly from Hezbollah. However, he claimed that in August 2013, a Hezbollah leader told him that Hezbollah wanted to kill him because he was hindering their work. The Applicant claimed that when he reported the incident, his superior said he would take it up. However shortly thereafter the Applicant was transferred to an army base near what he described as the “Hezbollah Heartland”. He claimed that thereafter he was constantly observed by members of Hezbollah.
The Applicant claimed he left Lebanon because his life was in danger, that he had received direct threats and that he feared that upon return he would be pursued and killed by members of Hezbollah.
The Applicant provided the Department with a copy of a military identification card and translation dated August 2010 which identified him by name, date of birth and home district.
On 24 June 2014 the Applicant provided a further statutory declaration, including additional claims. He claimed that one of his brothers was a prominent Sunni cleric responsible for a mosque in Lebanon who was well-known for his opposition to Hezbollah’s dominance by the use of arms. He clarified that he had moved to the area of the checkpoint in January 2008 (not 2009). He also claimed that snipers had shot at his home (as depicted in photographs) during May 2008 clashes in Lebanon. He suspected members of Hezbollah or their sympathisers had fired the bullets, but conceded he could not prove that this was so.
The Applicant claimed to suspect that he was targeted because of his position as a “high commanding” Lebanese Army officer who was a Sunni Muslim. He claimed he had been promoted to the rank of Lieutenant Colonel while in Australia on unpaid leave. He claimed that Hezbollah was a terrorist organisation that did not have any respect for the Lebanese authorities, law or people. In addition, he claimed (without elaboration): “I have on many occasions officially declared such a position”.
Relevantly, having regard to the grounds relied on in these proceedings, the delegate’s reasons also recorded that at the departmental interview (in July 2014) the Applicant claimed, for the first time, that he was on unpaid leave from the Lebanese Army which would expire on 1 September 2014 and that if he returned to Lebanon thereafter he would be charged with treason and sentenced by the military for failing to return to service after his period of leave.
The application was refused on 1 August 2014. The delegate, who made adverse credibility findings, did not accept that the Applicant had been subjected to threats and intimidation arising from his military service at a checkpoint in 2013 or that he had established an anti-Hezbollah profile in Lebanon on the basis of public statements or his brother’s activities. Nor was the delegate satisfied that members of the Lebanese Army had been targeted by Hezbollah in the recent past.
The delegate accepted for the purposes of the decision that the Applicant was a Lieutenant Colonel in the Lebanese Army who was on leave until September 2014 (despite expressing concern that at the interview the Applicant had had difficulty providing a clear and consistent account of his military service). However the delegate was of the opinion that there was no genuine or substantial obstacle preventing the Applicant from returning to Lebanon prior to 1 September 2014, so that he could resume military service if he wished to do so or could resign. Insofar as the Applicant claimed that he had to be physically present in Lebanon to resign from military service, the delegate was satisfied that it was reasonable to expect him to return.
The Applicant sought review by the Tribunal. He attended a Tribunal hearing on 23 July 2015. Transcripts of this Tribunal hearing and of a second Tribunal hearing conducted on 6 October 2015 are in evidence as annexures to an affidavit of Toufic Laba Sarkis affirmed on 25 May 2017.
The Applicant’s migration agent provided a submission to the Tribunal prior to the July 2015 hearing. It summarised the Applicant’s claims, provided the approximate time of postings and promotions, elaborated on his claimed confrontations with Hezbollah members and subsequent threats and on the claim that he had taken a leave of absence from the army which had been extended until 5 September 2014. It was claimed that fearing Hezbollah would kill him if he returned to Lebanon, the Applicant had not returned to Lebanon and had decided to “abandon” the army.
The agent claimed that a warrant had been issued by the army command for the Applicant’s arrest. In support of this claim a “Cable dispatch” dated 15 September 2014 (and a translation) was provided. It was said to be from the army commander to various army commands and described as a “notice of search and investigate in regards to an army deserter”. It referred to a “Service warrant” to search for, investigate and arrest the Applicant who was said to reside in Australia or a named place in Lebanon. It stated that the Applicant had a standard leave that ended on 5 September 2014 but that he had not presented himself.
Also provided was a copy and translation of a “Dispatch” dated 25 February 2013 referring to the arrest of two persons in February 2013 at a checkpoint (as had been described by the Applicant) and a report from a counsellor with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) dated 8 July 2015 which referred to the Applicant’s highly anxious state.
The Applicant claimed, through his agent, to fear persecution on the basis of an actual and imputed political opinion against Hezbollah and also as a member of a particular social group of high-ranking army officers, as a Lieutenant Colonel, working against Hezbollah, and/or deserters from the Lebanese Armed Forces. It was claimed that the Applicant had been a high commanding officer “working in counter terrorism activities” who had arrested members of terrorist groups for carrying arms without permits. The submission referred to country information in support of the contention that Hezbollah was a terrorist organisation that was dominant in Lebanon. It was claimed that the Applicant feared that if he returned to Lebanon he would be killed by Hezbollah.
The submission also claimed that as an army deserter the Applicant would be detained, punished, imprisoned and tortured and treated inhumanely in prison. He also feared he could be killed by Hezbollah operatives within the army and the prison system.
After the October 2015 Tribunal hearing, the Applicant’s agent provided further documents in support of the Applicant’s claims about his military service, including a Military Academy Graduation Certificate, a 2008 military indemnification form, a March 2011 payslip showing his rank at that time, service cards for his children and a temporary military card which stated that it was issued on 27 August 2014 and was valid until 4 November 2014. It described the Applicant’s rank as Lieutenant Colonel.
The agent also provided a report from a psychiatrist dated 17 October 2015, a “referral” from a general practitioner in the nature of a letter of support, and an updated report from the STARTTS counsellor to the Tribunal. The psychiatrist expressed the opinion that the Applicant had developed adjustment disorder progressing to major depressive disorder on a background history of post-traumatic stress disorder following multiple reported stressors.
The agent submitted that the evidence provided was consistent with the Applicant’s evidence that he was a member of the Lebanese Army, including his claim that he had been promoted to the rank of Lieutenant Colonel, but had not taken up this position due to his conscious decision not to return to Lebanon because he was in fear for his life.
Tribunal Decision
In its reasons for decision the Tribunal summarised the Applicant’s claim to fear harm in Lebanon because he had or would be perceived to have an anti-Hezbollah political opinion and the claims made through the agent that the Applicant feared persecution as a member of the particular social groups of high-ranking army officers in the Lebanese Army working against Hezbollah or deserters from the Lebanese Armed Forces. The Tribunal outlined the Applicant’s evidence and claims and issues it had raised at the Tribunal hearings in some detail.
The Tribunal found that the Applicant’s claim to fear harm because of an imputed or actual political opinion of being opposed to Hezbollah was based, in essence, around two claimed incidents in early 2013 when he was in charge of a military checkpoint. It recorded his claim that on two occasions he had stopped vehicles that contained people associated with Hezbollah whom he caused to be detained and also that he had seized weapons and munitions from the vehicles.
In addition, the Tribunal recorded that the Applicant claimed he had deserted from the Lebanese Army by not returning to duty when his leave expired while he was in Australia.
The Tribunal was not satisfied as to the Applicant’s credibility in relation to what were described as “some” aspects “of his evidence and…claims.”
The Tribunal considered first the Applicant’s claims surrounding his encounters with Hezbollah, which it described as “at the core” of his claims to fear harm. It stated that it had considered the Applicant’s evidence about two incidents at a checkpoint in February and March 2013 and the document he had provided regarding the February event. However the Tribunal’s “overall assessment” was that the Applicant’s oral evidence about the two incidents was “not convincing” in that it appeared to be very “mechanical” and the Applicant had not satisfied it that he was giving evidence about events in which he had actually been involved. The Tribunal was of the view that the Applicant appeared to be speaking about the events in a “very rehearsed way”, essentially in terms of the relatively brief details and claims in his statutory declarations. The Tribunal stated that it would have expected that the Applicant would have spoken in more detail or provided more detail overall about these critical events.
The Tribunal also had regard to country information which it had raised with the Applicant, in particular what it saw as relatively recent and credible country information about the close working relationship between the Lebanese Armed Forces and Hezbollah. It found that this information was not consistent with the Applicant’s claims that he was involved in detaining, arresting and seizing weapons and munitions from Hezbollah operatives in early 2013.
The Tribunal was also of the view that it did not seem credible that if the Applicant had complained of threats from Hezbollah, the Lebanese Army would have transferred him to a locality which was effectively controlled or dominated by Hezbollah as he claimed, and would have placed him at more risk or higher risk. This caused the Tribunal to further doubt the credibility of the Applicant’s core claims.
In this context the Tribunal considered the Applicant’s evidence that he did not agree with Hezbollah being able to operate above the law, that he had wanted to set a good example to his men and that he believed Hezbollah effectively controlled the army. Having regard to the country information about the close relationship between the Lebanese Army and Hezbollah and the Applicant’s long-term background in the army, the Tribunal did not accept as credible that he would stop, detain and arrest Hezbollah members as claimed. The Tribunal also had regard to the fact that the Applicant had been very vague about other incidents in which he claimed he had stopped vehicles.
Further, the Tribunal was of the view that the Applicant’s claimed desertion from the army in these circumstances did not seem consistent with someone who claimed to be concerned to set a good example to his men by stopping Hezbollah members.
In expressing concern about inconsistencies in the Applicant’s evidence and the credibility of aspects of his claims, the Tribunal accepted that the Applicant had received medical treatment in relation to anxiety and depression and for mental health issues. It was prepared to accept that the Applicant suffered from anxiety and was affected by concern about his extended family in Lebanon and the outcome of his protection visa application and that his mental health issues affected his memory to some extent. However its concerns about the credibility of the Applicant and his claims were said to relate to his core claims and matters of more substance than just his difficulty in recalling particular dates.
The Tribunal did not accept the Applicant’s claims that he had stopped, detained and arrested Hezbollah members in early 2013 or that he would stop and detain Hezbollah members for the reasons claimed.
The Tribunal considered the Applicant’s claims that Hezbollah members shot at his home in 2008 and that he feared harm because of the activities of his brother who was critical of Hezbollah. It observed that these claims had not been raised in the Applicant’s initial statutory declaration. The Tribunal did not accept that the Applicant had a well-founded fear of harm on these bases. The Tribunal was of the view that the Applicant’s evidence about a shooting by Hezbollah at his home in 2008 was essentially speculation and was not based on any actual knowledge that he was targeted by Hezbollah. Nor had he suggested any reason why he would be so targeted in 2008. It did not accept that Hezbollah had targeted and shot at the Applicant’s home in 2008 as claimed.
The Tribunal also had regard to the fact that no harm had come to the Applicant or to his brother, despite the claim that his brother was opposed to Hezbollah. It observed that the Applicant’s evidence and claims in this respect were brief. The Tribunal was of the view that if the Applicant had a well-founded fear of harm for this reason it would have been reasonable to expect that he would have raised it in his first statement. It did not accept that the Applicant was at risk of harm on this basis.
The Tribunal addressed the Applicant’s claim to be at risk of harm because he had “publicly criticised” Hezbollah. It stated that at the hearing it had found it difficult to get “clarity” from the Applicant about the details surrounding this claim. It did not accept that the Applicant’s evidence about speaking in critical terms about Hezbollah to other military officers, or even to the Mayor of his village or at social events, supported his claims in this respect. It had regard to the fact that the Applicant had “essentially provided no significant detail about what he claimed he said to people in criticising Hezbollah” and to the fact that his evidence about the circumstances in which he spoke to people was “indicative or suggestive of almost private conversations”. The Tribunal observed that the extent to which the Applicant was actually critical of Hezbollah in these conversations was unclear. In addition, the Tribunal had regard to the fact that this claim had not been raised in the Applicant’s first statutory declaration. It was of the view that it would have been reasonable for the Applicant to have raised such a claim in support of his protection visa application if he had a fear of persecution on this basis. The Tribunal did not accept that the Applicant had a well-founded fear of harm on the basis that he had made critical comments about Hezbollah.
The Tribunal also had regard to the fact that the Applicant had left Lebanon from Beirut International Airport (which had a strong Hezbollah presence) without incident on his own passport and apparently dressed in his military uniform. This was said not to support his claimed fear of Hezbollah. The Tribunal addressed the Applicant’s explanation that he was “lucky”, but found that such a departure was not consistent with his claim that Hezbollah was seeking to harm him or with his wider claims about fearing harm from Hezbollah. The Tribunal was of the view that the Applicant was of no interest to Hezbollah and hence had been able to leave Lebanon without difficulty.
The Tribunal reiterated that it did not accept that the Applicant was a credible witness and that it did not accept the credibility of a number of his claims.
The Tribunal considered the document the Applicant had provided in relation to the claimed arrest of Hezbollah operatives and seizure of their weapons in February 2013. However, because of its wider concerns about the Applicant’s credibility, the Tribunal did not “believe” that this document overcame its concerns in relation to the credibility of his claims about the events of early 2013 in relation to Hezbollah.
As the Tribunal did not accept that the Applicant was involved as claimed in detaining, arresting and seizing weapons and munitions from Hezbollah operatives in two incidents in early 2013, it did not accept his claims about subsequent warnings or threats. It noted that the Applicant claimed that he had no difficulty in relation to any threats or further encounters with Hezbollah from April to August 2013. It did not accept that in August 2013 the Applicant was warned by a Hezbollah leader that Hezbollah wanted to kill him. Nor did it accept that he was transferred to a particular posting in 2013 because he was at risk of harm from Hezbollah.
On the evidence and country information referred to in its reasons, the Tribunal did not accept that the Applicant faced a real chance of serious harm on the basis of his claims that he would be harmed by Hezbollah if he returned to Lebanon now or in the reasonably foreseeable future.
The Tribunal stated at paragraph 60:
The Tribunal has reservations about the “search and investigate” document that has been provided regarding the applicant being described as an “army deserter” based on the applicant’s evidence that he was so concerned to leave Lebanon and left in a “rush” that he did not think about the consequences of becoming a deserter from the Army or turned his mind to resigning his commission while he was still in Lebanon. It seems on the basis of the DFAT country information that has been referred to elsewhere in these reasons that the applicant could have resigned from the army while he was in Lebanon. The Tribunal expressed its concerns about the veracity of the “search and investigate” document during the course of the Tribunal hearing. That aspect has been referred to elsewhere in these reasons.
The Tribunal addressed country information that had been cited in another Tribunal decision and was referred to by the Applicant in relation to the resignation of Lebanese Army officers, the likely punishment for desertion and the treatment of detainees by the Lebanese Armed Force. However the Tribunal had regard to the fact that the detainees referred to in the cited report had been fighting against the army and were not military personnel and that there was no specific information as to the treatment of military detainees.
The Tribunal referred to DFAT information from February 2014, indicating that an officer or soldier could resign “at any stage” from the Lebanese Armed Forces with the approval of their commanding officer “without difficulty”, albeit that soldiers could face a court martial for not returning from leave or for refusing to follow orders and that punishment could include periods of imprisonment. The Tribunal found that this information strongly suggested that the Applicant could have resigned from the Lebanese Army without difficulty. Further, contrary to the Applicant’s claim, it found that DFAT information did not suggest that resignation from the Lebanese Armed Forces required the Applicant to be physically within Lebanon.
The Tribunal accepted, based on the information provided by the Applicant, that he was at some stage a serving officer in the Lebanese Armed Forces. It referred to the military identification card said to have been issued in August 2014 (while the Applicant was in Australia). However it found at paragraph 66 that:
…Very little documentation about the applicant’s military service had been provided to the Department or the Tribunal until the Tribunal raised its concern about that issue during the Tribunal hearing. The Tribunal notes the documentation that has been provided and as indicated accepts that the applicant at some stage was a serving military officer in the Lebanese Armed Forces. The further documentation that was provided to the Tribunal related to the applicant graduating from a military academy in 1996 as a lieutenant together with a document issued in 2008 and a payslip from March 2011 showing the applicant’s rank at that time as a major. A temporary military card was provided which was issued in August 2014 (when the applicant was in Australia). No documentation has been provided in relation to the applicant being on approved leave from the military while he has been in Australia and it was claimed that the applicant’s leave had been extended to September 2014. The Tribunal regards the lack of documentation in relation to that issue with concern and as indicated the Tribunal raised the general lack of documentation about the applicant’s military history during the Tribunal hearing. The Tribunal believes, having regard to the applicant’s claimed length military service, that it would be reasonable to have expected that the Tribunal would have been provided with documentation that indicated or showed that the applicant was on approved military leave up until September 2014 as he claimed and that would have been provided in response to the Tribunal’s general concerns about the lack of documentation in relation to the applicant’s military service...
The Tribunal observed that in essence the Applicant claimed he was on leave from the military from when he arrived in Australia in November 2013 up until November 2014. Having regard to all of the claims and the “criticality” of the Applicant’s claim to be an army deserter the Tribunal stated at paragraph 66 that it believed:
…it would be reasonable to expect that the applicant, as part of responding to the Tribunal’s concerns about his military history, would have provided documentation that indicated that he was on approved leave from the Lebanese military and also provided some evidence about the temporary military card that was provided to the Tribunal and which was said to have been issued to the applicant in August 2014. No evidence, for example, by way of any supplementary statement or statutory declaration from the applicant has been provided about how the applicant obtained that card…
The Tribunal also observed that the Applicant had responsibility to provide sufficient evidence to establish his claim under s.5AAA(2) of the Migration Act 1958 (Cth) (the Act).
The Tribunal stated (at paragraph 67) that it had considered the Applicant’s claims in relation to “the desertion issue” and the documentation provided, including the “search and investigate” document. It stated that it had considered the Applicant’s claim that he could not resign from the Lebanese Armed Forces while in Australia, but took into account information from DFAT that officers and soldiers could resign at any time without difficulty which did not suggest or indicate that the Applicant could not have resigned his commission while on leave. It stated that its “concerns about the veracity of the search and investigate document” had been raised with the Applicant during the hearing. It noted that the document referred to a service warrant number and date of ““22/06/2002” and also includes a paragraph where the applicant is referred to and refers to the applicant’s leave having ended on “05/09/2014””.
The Tribunal stated (at paragraph 68) that it had considered the search and investigate document, but because of its concerns about the credibility of the Applicant’s claims, its overall assessment that he was not a credible witness “and the concerns about the veracity of that document”, it did “not believe that document overcomes [its] concerns that the applicant [was] not a deserter from the Lebanese army as he claims”. It referred to the Applicant’s claim that he had been provided with this document through a friend in the Lebanese Army. It observed that it purported to be a cable dispatch, but that it had no formal heading and carried no formal military heading, although it did “purport” to bear a seal of the army command and to be addressed to various army commands and military groups. The Tribunal observed that the document provided to it was a “claimed copy” of the original and a translation. The Tribunal believed “it would be reasonable to expect” that a formal document issued for search and investigation purposes in relation to the Applicant would have had “a more formal official military appearance in terms of the letterhead and other aspects”. The Tribunal reiterated that while the document purported to be a cable dispatch, it also purported to bear a seal of the army command. The Tribunal then stated that it “continues to have concerns about the veracity of the document”.
The Tribunal continued at paragraph 69:
The applicant claimed that he could not return to Lebanon because Hezbollah would harm him. The Tribunal having regard to the DFAT information referred to and the Tribunal’s concerns about the applicant’s credibility and the lack of any documentation that the applicant was on approved leave is not satisfied that the applicant is a current serving member of the Lebanese Armed Forces. The Tribunal has considered the military identification document that has been referred to but given the Tribunal’s concerns does not accept that document overcomes the Tribunal’s wider concerns about the applicant and his claims. In those circumstances the Tribunal does not accept that the applicant faces a real chance of serious harm if he returned to Lebanon either now or in the reasonably foreseeable future on the basis that he is a deserter from the Lebanese Armed Forces.
The Tribunal concluded that, considering the Applicant’s claims individually and cumulatively, it did not accept on the evidence before it that he faced a real chance of serious harm for a Refugees Convention reason if he returned to Lebanon now or in the reasonably foreseeable future.
The Tribunal addressed the complementary protection criterion. It referred to its earlier assessment of the evidence, the Applicant’s credibility, documentation and submissions and the fact that it did not accept that he was a deserter from the Lebanese Armed Forces or that he faced a real risk of significant harm from Hezbollah. The Tribunal concluded that for the reasons given it did not accept that the Applicant faced a real risk of significant harm on the basis that he would be arrested and imprisoned for being an army deserter or that he faced a real risk of significant harm from Hezbollah if he were to return to Lebanon.
The Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations. It affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed in this court on 16 December 2015. At the time of the hearing he initially sought to rely on a proposed amended application containing two grounds. He now relies on a further amended application filed, with leave, after the hearing. There are three grounds in the further amended application. In circumstances where the grounds relied upon were expanded upon and altered in oral submissions for the Applicant, the parties were given the opportunity to make post-hearing submissions.
Ground 1
The first ground in the further amended application is as follows:
1.The Second Respondent failed to complete the exercise of its jurisdiction.
PARTICULARS
The second respondent failed to make a finding on the applicant’s claims that he held a political opinion opposing Hezbollah and that he would voice his opposition to Hezbollah if he was returned to lebanon (sic).
The Applicant acknowledged that the Tribunal had recorded that he claimed that he was at risk because he was against Hezbollah and that he had made critical comments about Hezbollah in the past. It was pointed out that his agent had indicated at the second Tribunal hearing that he would “continue to voice his opposition to Hezbollah” had he stayed in Lebanon. It was submitted that the Tribunal had not dealt with the Applicant’s claim that he held a political opinion opposing Hezbollah and would voice his opposition to Hezbollah in the future if he returned to Lebanon.
The Applicant submitted that the Tribunal’s conclusory finding that it did not accept that he faced a real chance of serious harm on the basis of his claims that he would harmed by Hezbollah if he returned to Lebanon now or in the reasonably foreseeable future was not sufficient to dispose of any separate claim as to what might happen to him if he continued to express his opposition to Hezbollah in the future.
It was accepted that the Tribunal had addressed the Applicant’s claimed fear of future harm based on having made critical comments about Hezbollah in the past and that it considered that the claimed past criticism did not create a profile for the Applicant which put him at risk of persecution from Hezbollah at the time he departed Lebanon. However it was submitted that the Tribunal had not rejected the Applicant’s claims that he was against Hezbollah and had criticised Hezbollah in the past and that it had not addressed the issue of what would happen in the future if the Applicant returned to Lebanon and continued to voice his opposition to Hezbollah.
Attention was drawn to the fact the Tribunal had made only a limited adverse credibility finding in relation to “some aspects” or “a number” of the Applicant’s claims (although I note the Tribunal also did not accept that the Applicant was a credible witness).
The Applicant contended that it was relevant in this context that his claims about past activities related to his expression of political opinion as a military officer, whereas in the future he would be expressing his political opinion as a civilian. While the Tribunal acknowledged in the hearing that as a military officer the Applicant would not be a member of a political party and was said to have suggested that this position also circumscribed the extent to which he could voice active political opposition, it was submitted that the fact that such constraints would not apply once the Applicant was no longer a serving officer ought to have been considered by the Tribunal in assessing the risk of future harm. It was suggested that the Applicant’s civilian status would have potential implications both as to the manner in which he could express his opinion and as to his vulnerability to harm from Hezbollah.
The Applicant submitted that because, on the Tribunal’s findings, his status in the future would differ from his past status it could not be said that the Tribunal’s conclusion that he was of no interest to Hezbollah in the past was necessarily dispositive of his claim to fear harm in the future (see Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [192] per Gummow and Hayne JJ and Ponnudurai v Minister for Immigration and Multicultural Affairs [2000] FCA 91 at [13] per Burchett J).
Counsel for the Applicant pointed to the fact that while the Tribunal had accepted that the Applicant had been an officer at some stage, it was not satisfied that he was a current serving member of the Lebanese Armed Forces. It was said to follow that the Applicant would be a civilian when he returned to Lebanon and submitted that accordingly the Tribunal should also have made findings as to what it considered his actions would be in relation to expression of his political opinion of opposition to Hezbollah as a civilian. It was contended that the fact that the Applicant had claimed that being a high-ranking military officer may have been seen by Hezbollah as a reason he was a threat to them, did not mean that the Tribunal did not have to evaluate the risk he may face in the future as a civilian.
It was submitted that it was for the Tribunal to make an assessment of whether the change in the Applicant’s status could affect the chance of future harm, but that it had failed to do so. While it had explored how the Applicant had expressed his political opinion in the past, the Tribunal was said to have made no findings on how he would continue to express his opinion if he returned to Lebanon.
It was also submitted that the Applicant’s claim was that, because he had deserted, he was no longer an officer so that his case before the Tribunal was not a claim that he was at risk of harm as an army officer (as the First Respondent had suggested).
In post-hearing submissions for the Applicant ground 1 was also said to involve a contention that the Tribunal had failed to engage in reasonable speculation as to the future risk of harm to the Applicant based upon all the evidence before it (see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at [28]).
In addressing this ground as pleaded, the First Respondent suggested that while it was asserted in the particulars that the Tribunal had “failed to make a finding” on the Applicant’s claim to hold a political opinion opposing Hezbollah which he would continue to voice if returned to Lebanon, the ground may more properly be understood as a contention of a “failure to consider” an aspect of the Applicant’s claims.
However, it was said to be necessary to have regard to the claims that were in fact made by the Applicant and whether the Tribunal’s reasoning may fairly be understood to be dispositive of such claims. The First Respondent referred to the Applicant’s claim to have developed a political profile as an officer who opposed Hezbollah by arresting members at checkpoints and who had also been making public statements critical of Hezbollah since 2006. It was pointed out that the delegate had rejected the first of these claims (and that threats from Hezbollah had occurred as a consequence) and had also rejected the claim that the Applicant had established a public profile of opposition to Hezbollah, having regard to the fact that his expressions of opinion were essentially private conversations. The delegate had concluded that the Applicant did not face a real risk of the relevant harm on these bases.
The First Respondent submitted that the Applicant’s claims faced similar difficulties before the Tribunal. It was acknowledged that during the first Tribunal hearing the Applicant’s agent had claimed the Applicant feared harm because he was not simply opposed, but was “publicly opposed” to Hezbollah. However it was submitted that this claim was considered, but rejected, by the Tribunal, which had regard to country information that Hezbollah would tend to target only high profile and politically active and outspoken critics and those perceived to present a direct threat to Hezbollah’s political power in Lebanon. The Tribunal had also observed that at the hearing it had found it difficult to obtain clear and concise details from the Applicant about the content and circumstances of his past criticism of Hezbollah. This was said to be consistent with the transcripts.
It was submitted that the Applicant had not claimed that he would voice his opposition in the future in a different manner to his past criticism.
The Tribunal was also said to have considered the agent’s submission that the Applicant would “continue” to voice his opposition to Hezbollah. The Tribunal recorded (at paragraph 45) that such a claim had been made at the hearing. However, it found that the circumstances in which the Applicant had spoken to people in the past were “indicative or suggestive of almost private conversations”, and that the Applicant was “of no interest to Hezbollah” by reason of the manner in which he claimed to have voiced his opposition to Hezbollah in the past. It was fortified in that view by its consideration of the Applicant’s departure from Beirut Airport, where there was a strong Hezbollah presence.
The First Respondent suggested that the country information relied on by the Tribunal, which had been put to the Applicant, indicated that “critics” of Hezbollah would not be at risk unless they presented a direct threat to Hezbollah’s political power in Lebanon, suggesting that this would involve a reasonably active and high profile opposition (transcript 2, page 38).
It was also pointed out that at none of the points during the Tribunal hearings at which the Tribunal put country information to the Applicant about likely targets of Hezbollah, had he said that his political activities would significantly escalate in the manner now suggested by his counsel. Rather, the Applicant had conceded to the Tribunal that he would not go and demonstrate. He had told the Tribunal that he would be seen as a threat because of his position in the military, his association with his brother and because “whoever” criticised Hezbollah “becomes a target” (transcript 2, page 38). The First Respondent submitted that these claims were considered, but not accepted, by the Tribunal.
The First Respondent submitted that the Tribunal had sufficiently considered the Applicant’s submission that he would “continue” to voice his opposition to Hezbollah in circumstances where at the hearing he had confirmed he was not actively involved in Lebanese politics, but simply expressed his views. It was in this context that the Tribunal considered that the Applicant’s past method of voicing his opposition, that is, socially in “almost private” conversations, would not give him a sufficiently high profile to make him a target of Hezbollah now or in the reasonably foreseeable future.
It was contended that in these circumstances the Tribunal did not have to repeat its assessment of why the Applicant’s claimed means of public opposition would not render him of any future interest to Hezbollah, given what were said to be “findings of greater generality” in its conclusory paragraphs in relation to the Applicant’s claim to fear Hezbollah (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46]-[47]). The First Respondent submitted that the Tribunal had provided reasons earlier in its decision for finding that the Applicant’s opposition was not sufficiently “high profile” or public to be of any interest to Hezbollah and that in the absence of any claim by the Applicant that he would change the manner of his vocal opposition, the Tribunal’s findings were entirely dispositive.
It was said to be clear that the Tribunal had considered the Applicant’s claim that he would continue to voice his opposition upon return, had explored with him the manner in which he may do so and had then found, based upon country information that was put to him, that it would not expose him to a real risk of harm.
The First Respondent also addressed the Applicant’s “additional” submission that the Tribunal had failed to appreciate that his profile would be one of a civilian if he returned to Lebanon and that this would potentially increase his political profile by reference to the manner in which he could express his opinion as well as his vulnerability to harm from Hezbollah.
The First Respondent submitted that the claim now made for the Applicant (that his potential status as a civilian may expose him to greater risk as a critic of Hezbollah), was not a submission that had been made to the Tribunal or how his claim was actually put to the Tribunal. It was submitted that the Applicant had not claimed that being a civilian would increase his political profile. Rather, he had claimed that it was the very nature of his role with the military that meant that he may be seen to have the kind of high profile that gave rise to the risk with which the Tribunal was concerned. In particular, the Applicant had claimed that the reason he would possess the requisite profile to attract the adverse attention of Hezbollah was because he was a Sunni soldier (see transcript 1, pages 45 and 46). Reference was also made to the evidence at the second Tribunal hearing about what the Applicant had done to “officially declare” his position on Hezbollah, which the Applicant explained as telling fellow soldiers, his commanding officer and a local Mayor that Hezbollah was a terrorist organisation and expressing this view on social occasions.
It was contended that the “additional” submission misapprehended the nature of the Applicant’s claims before the Tribunal and the Tribunal’s reasoning.
Consideration
First, insofar as the basis for this ground is said to be a claim made by the Applicant’s agent at the second Tribunal hearing in October 2015 about what the Applicant would do if he returned to Lebanon, the relevant part of the oral submission by the Applicant’s agent at the second Tribunal hearing occurred towards the end of that hearing (transcript 2, page 42). It occurred after the agent had claimed that:
…The applicant’s core claim that he was high ranking a military officer in the Lebanese Army who at the point in time when his fear for his life arose following a direct threat from Hezbollah that fear that fear Member arose as the applicant the review applicant in evidence said it was compounded incidents that lead to such that the review applicant in 2008 had started to voice his opposition to Hezbollah before the Tribunal today he openly and under oath declared that he is a sympathiser a political opponent is Hezbollah in 2008 Member he was a lower ranking officer than he was in 2013 when he did in fact cause direct threat to Hezbollah by detaining its members, confiscating its arm it is our submission that at that time the applicant’s profile has risen to the status that has become a concern of Hezbollah to consider carrying out their threat against him on the basis of hindering its operation in Lebanon.
(errors in original)
There was then a discussion of the fact that nothing had happened to the Applicant between April and August 2013. The agent submitted that Hezbollah “may have been planning since April to take revenge on [the Applicant]”, reflecting the claim that the Applicant had already established a profile of concern to Hezbollah. After addressing the circumstances of the Applicant’s departure from Lebanon, the agent continued (transcript 2, pages 43-44):
The issue is Member had [the Applicant] stayed in Lebanon continued as he gave evidence to cause problems to Hezbollah by stopping and detaining it (sic) members and what was publicly at least in the circles of high ranking officers who in his evidence claim that they are Hezbollah he has publically voiced his opposition against Hezbollah which had put him in direct threat…
On its face, this was not a claim about what the Applicant would do if he returned to Lebanon (as contended for in ground 1). It was not about what he would do as a civilian or a general claim that he would “voice his opposition if he returned to Lebanon”. Rather, it was a claim that if the Applicant “had stayed” in Lebanon (that is, as an army officer) he could have “continued” to cause problems for Hezbollah by stopping and detaining Hezbollah members and by publicly voicing his opposition “at least in the circles of high ranking officers who…claim they are Hezbollah” and that this was the past conduct which was said to have “put him in direct threat”. This was not a claim that the Applicant would continue to voice his opposition to Hezbollah if he returned to Lebanon in the future. Nor was it understood as such by the Tribunal. In paragraph 45 of its reasons the Tribunal correctly recorded the agent’s claim that “had the applicant stayed in Lebanon he would continue to voice his opposition to Hezbollah”.
However, while there was no express claim made by the agent or by the Applicant that the Applicant would voice his opposition to Hezbollah “if he was returned to Lebanon”, as the First Respondent accepted, it was necessary for the Tribunal to address the issue of what would happen in the future if the Applicant returned to Lebanon and in that context to engage in reasonable speculation as to the future risk of harm to the Applicant based on all the evidence before it (see Sellamuthu at [28]).
Hence it is necessary to consider the evidence before the Tribunal. At the time the Applicant sought a protection visa (February 2014) he claimed to fear Hezbollah based on past threats following his actions carrying out his duties as an army officer at a checkpoint in Lebanon.
In his June 2014 statutory declaration the Applicant reiterated these claims and also claimed that one of his brothers was a prominent Sunni cleric who was well known for his opposition to Hezbollah. He claimed to suspect that Hezbollah, or Hezbollah sympathisers, had shot at his house in 2008 and that he was targeted because he was a high-ranking Sunni army officer. He also stated (without elaboration):
I believe that Hezbollah is a terrorist organization that does not have any respect to (sic) the Lebanese authorities, law or people. I have on many occasions officially declared such position.
(emphasis added)
The delegate recorded that at the departmental interview there was a discussion of the absence of recent reports supporting a finding that Hezbollah targeted members of the Lebanese Army. At that time the Applicant’s claim was that he was on unpaid leave from the Lebanese Army until September 2014 and no claim was made (or arose) as to what the Applicant may do in the future as a civilian. The delegate recorded that the Applicant had expanded on his claim to have officially declared his position in relation to Hezbollah as follows:
…At interview, the applicant expanded on this claim to suggest that he believed that Hezbollah also targeted him because he has established a profile as a Sunni LAF officer who is critical of Hezbollah. The applicant claimed he has been making public statements critical of Hezbollah since 2006.
(emphasis added)
In other words, the Applicant’s claimed future fear was said to be associated with an established profile as a Sunni officer who was publicly critical of Hezbollah.
However, the delegate described the Applicant’s oral evidence in this respect as follows:
When questioned about his public statements at interview, however, the applicant provided a vague response. He indicated that he would sometimes express these views in restaurants. He also indicated that he had expressed his opinion to Shiite officers.
The delegate accepted that the Applicant may have expressed opinions critical of Hezbollah “in private”, including to Shiite colleagues in the military, but did not accept that he had established “a public profile as an LAF officer opposed to Hezbollah”. The delegate also remarked that the Applicant’s claims to have established a profile because of public statements criticising Hezbollah were “belated, vague and unpersuasive” and did not accept that the Applicant had established an anti-Hezbollah profile in Lebanon on the basis of his public statements.
In the pre-hearing written submission to the Tribunal of 23 July 2015 the Applicant’s agent claimed that while the Applicant initially took leave of absence from the Lebanese Army (which was extended until 5 September 2014), fearing Hezbollah would kill him he decided to abandon the army and that an arrest warrant had been issued by the army. However, the Applicant’s future fears were expressed in terms of a fear of punishment as a deserter (that is, within the military system) and that he could be killed by Hezbollah while in prison. He did not claim he was no longer in the army. Rather, he claimed to fear punishment within the military system.
It was also claimed generally that the Applicant had an actual and imputed political opinion against Hezbollah, but the agent’s submission did not refer to any possible future expression of the Applicant’s opinion in that respect. It was submitted that country information indicated that Hezbollah and affiliated terrorist groups targeted people holding an opinion against them and that “the harm will be aggravated if any one works or is suspected as working against them”. In the case of the Applicant an increased risk was identified as related to his past work as a high-ranking army officer as follows:
We submit that the applicant works as a high commanding officer in the Lebanese Armed Forces, working in counter terrorism activities, who has in fact arrested members of the groups for carrying arms without permits. He holds the opinion that Hezbollah is a terrorist organization working without authority to undermine peace in the country. In that, he is also at odds with Hezbollah with the opinion, actual and imputed, that they intend to dominate the country by undermining its military and political apparatus through violence and intimidation. It should be noted that the applicant has an elevated harm because he not only holds a strong political opinion against Hezbollah and affiliated groups, but also worked to undermine the terrorist groups’ activities.
In considering the nature of the Applicant’s claim that Hezbollah would target him as a political opponent in the future, it is relevant that the contention was that his risk of harm was elevated because he had “worked to undermine the terrorist groups’ activities” (that is, because of what he had done as an army officer in the past). The Applicant made no claims about any fear of future harm as a civilian by reason of his political opinion and/or any future expression of his anti-Hezbollah views. In a sense this is unsurprising, as the Applicant’s claim was put on the basis that he was still in the Lebanese Army, but had deserted by not returning from leave (not that he had resigned his commission), although the possibility of discharge from the army was clearly in contemplation, being referred to in country information the Applicant put to the Tribunal in the pre-hearing submissions.
At the first Tribunal hearing (in July 2015) the Applicant indicated that he was still “technically” in the Lebanese Army. He claimed that he had not resigned, as he had to be in Lebanon in person to have his resignation accepted. The Tribunal member told the Applicant he was trying to clarify the basis for his claim he was at risk of harm because of an imputed political opinion of opposition to Hezbollah. The Applicant and his representative both acknowledged that this claim (and a complementary protection claim that the Applicant would be punished for having deserted from the army) were his claims. The representative volunteered, without further explanation, that the Applicant was “publicly opposed” to Hezbollah (transcript 1, page 32). The Tribunal indicated that it wanted to ask questions about this claim. The Applicant described Hezbollah as a terrorist organisation, but did not elaborate further.
While addressing the desertion claim, the Applicant spoke of fearing he would be killed by Hezbollah while in prison (as well as fearing harm from the authorities). There was also a discussion of his claims that Hezbollah had targeted members of the Lebanese Army in the recent past. However, as the First Respondent pointed out, the basis for the Applicant’s claimed fear of harm in relation to his opposition to Hezbollah was said by the Applicant (and his agent) to relate not only to “speaking out” but also to his existing high profile.
Relevant to its assessment of the future chance or risk of harm, the Tribunal put to the Applicant information that the greatest threat (from Hezbollah) was for people “seen to be high profile activists operating against Hezbollah’s interests [and] people who Hezbollah would see as threatening Hezbollah’s interests but in a fairly high profile way”. The Applicant referred to what he saw as his existing profile as a high-ranking Sunni soldier who was publicly known to be against Hezbollah and continued (transcript 1, page 45):
I am a soldier with a high rank and I stopped their members and I live in a village a Sunni village who is against them and me and my brother are very well known to be against Hezbollah and that’s publicly known and against their political opinion in Lebanon.
The Tribunal also put to the Applicant a DFAT assessment to the effect that “critics of Hezbollah would generally would not be at risk unless they presented a direct threat to Hezbollah’s political power or in some way were seen as threatening Hezbollah at (sic) in a reasonably significant way” (transcript 1, page 45). The Applicant did not disagree. He claimed he was a threat to Hezbollah because they had threatened him in the past and that this meant that they perceived him as against them. He did not make any claims that the nature of his criticism or his vulnerability to harm would change in the future.
The Tribunal then put to the Applicant that what he had talked about in terms of the evidence (that is the checkpoint incidents of 2013 involving stopping two cars, detaining people who were later released and seizing weapons) may not constitute a “threat” to Hezbollah or really fit with the idea of Hezbollah essentially being interested in harming people who they would see as “a direct threat to Hezbollah’s political power”. In reply he stated “[t]hey do fit because I’m a Sunni soldier” (emphasis added). His agent added “[h]igh ranking soldier”. The Applicant continued (transcript 1, page 46):
From [home town] I am known to be of a political direction against Hezbollah and I have detained more than one person with the weapons of Hezbollah and I gave them in to the authorities relative authorities and the authorities they release them suppose any person here he owns a gun would the authority you know detain them and then release them? So I am known that my direction is against Hezbollah. Me and my brother [brother’s name] who speaks in the mosque in [home town]. Hezbollah wants to kill me and is just waiting for the right opportunity to do that and as you just said member Hezbollah are a threat to people who constitute a threat to them.
(emphasis added)
In other words, the Applicant stressed that he was a Sunni soldier already known to be politically opposed to Hezbollah, who had detained Hezbollah members and whose brother had spoken out against Hezbollah. He claimed he was already a threat to Hezbollah. Nothing that he said suggested any way in which any potential future activities or any change in his status may expose him to a further, or different, risk of harm. This was so notwithstanding that given his claim to be a deserter, the prospect of being discharged from the army (and hence becoming a civilian) must have been in contemplation.
The Tribunal hearing was adjourned. It resumed on 6 October 2015. At the start of the resumed hearing (referred to for convenience as the second hearing) the Tribunal summarised its understanding of the Applicant’s claim that he could be perceived to be a threat to Hezbollah on the basis that he was a high-ranking army officer of the Sunni faith who had detained Hezbollah people on two occasions and that he had a brother “who also was actively speaking against Hezbollah” (transcript 2, page 1). The Applicant agreed.
In the course of discussing the fact that no harm had been suffered by the Applicant’s brother, the Applicant said (transcript 2, page 3):
What I mentioned was that my brother’s speech or talk was against Hezbollah and me myself my direction is the same as my brother’s and just even in the story that I just mention now I will just show you 90% of the people in my hometown are against Hezbollah.
However the Applicant acknowledged that he had no knowledge that his brother (or people in his home town) had suffered any harm as a consequence of their view of Hezbollah.
The Tribunal then asked the Applicant about his claims in his second statutory declaration that he had “officially declared” his position about Hezbollah “on many occasions” and what he meant by “officially declared” his position and what he had done (transcript 2, page 4).
The Applicant claimed that at the time of the May 2008 attacks by Hezbollah on Beirut he had protested to the chief of his army unit and said that Hezbollah was a terrorist organisation (transcript 2, page 4). When asked about any other of the claimed “many” occasions on which he officially declared his position, the Applicant said (transcript 2, page 5):
Yes and also in other meetings with high ranked officers like we would be having lunch in the solider quarters also there were Shiite high ranked soldiers and I told them Hezbollah are actually terrorists and that was I spoke to Shiite high ranked soldiers and also other than the soldiers club even in other places I have mentioned this before many soldiers for example acquaintances for example the Mayor of [location].
(emphasis added)
He explained that the Mayor was a Christian, that he had spoken to him personally and that he had mentioned that Hezbollah was a terrorist organisation and did not care about anybody in the country. He continued (transcript 2, page 5):
And you know being an officer in the army every occasion like whether it’s a social lunch or wedding or anything all we talk about is actually politics and you know we sort of say that Hezbollah are terrorists and they are behind the assassination of the Hariri and we say that vocally and you know upfront.
The Tribunal summarised the Applicant’s claims about public statements as claims that he had spoken out to other army officers, spoken on social occasions and had told a local Mayor that he believed Hezbollah was a threat to Lebanon generally. The Applicant agreed (transcript 2, pages 5-6).
The Tribunal also put to the Applicant that because he claimed to be an army officer, he was not involved actively in Lebanese politics as such. He replied, “It’s not like I’m involved in the political party but I did express my political view” (transcript 2, page 6). The Applicant also agreed that as an army officer he was not involved officially in any political movement in Lebanon. He made no claim as to any future intention or wish to be involved in politics in the future.
Rather, the following exchange occurred (transcript 2, pages 35-37):
Tribunal Member – Yes okay now, now okay look I’ll just clarify this because I’ve asked you a number of questions about this and I know you claim you were serving as an Army Officer but when you say you supported them oh sorry you support the March 14 coalition, you told me earlier about speaking to other Army Officers, to a Mayor in the local area but did you do anything more than that? That’s what I’m trying to ascertain.
Applicant – It wasn’t just officers army officers it was really high ranked officers.
Member – Yes when I talk about army officers I’m talking about generically you are talking to superior officers and officers of the same rank brother Officers we’re talking brother officers. I am not seeking to downgrade the officers I was just talking about the officers as opposed to enlisted troops.
Applicant – You see my point is it’s not like any officer I was talking to
Member – No, no
Applicant – I was talking high rank.
Member – You were talking about superior officers.
Applicant – Yes but of course even the officers when they see your behaviour your conduct then they will have the impression that you are against Hezbollah.
Member – Okay look as I said I was trying to ascertain if there was anything further about you said you supported March 14 coalition.
Applicant – Like what? What can I do further?
Member – Well I’m asking I don’t know. I’m just asking what you did that’s what I am trying to ascertain I am not suggested you should have done anything.
Applicant – I will not go and demonstrate
Member – No, no, no I am just asking you what you did I am just asking you to clarify the facts
Representative – Could I get the Tribunal to ask to review application could his conduct at Dar Al-Baidar be targeted towards Hezbollah because he’s opposed to them and he sympathises at the very least with the 14 March Movement.
Member – If you are seen to be in that movement
Representative – Correct which he has seen to be
Member – So I assume because of your Sunni faith that you would of been supporting the Future Movement in that that March 14 coalition.
Interpreter – Would you like me to interpret what he said?
Member – Yes please so the applicant knows what we are talking about. Please.
Interpreter – Yes go ahead please
Member – Okay.
Applicant – But this is exactly why I was in that picture as he said because one of the soldiers did come and say Hezbollah are not happy with what you are doing.
Member – That was the in April 2013 was it? That was when one of the officers subordinate officers spoke to you.
Applicant – Yes but in 2008 it was just talking you know with the soldiers and other people who I meet with
Member – Okay so you were doing that in 2008 now did you continue then we move to 2013 because 2013 is when you say these things happen to you.
Applicant – Yes.
Member – Okay so did you continue to say things about Hezbollah between 2008 into 2013?
Applicant – Yes true.
Member – Okay so was it the same sort of situation where you spoke to other army officers? Be there brother officers or superior officers?
Applicant – Yes the same, the same.
Member – It was the same sort of thing
Applicant – Yes the same I am against Hezbollah and I still am against Hezbollah.
(errors in original and emphasis added)
Later in the second hearing the Tribunal confirmed that the Applicant claimed that Hezbollah’s anger against him had escalated in circumstances where he made comments to other army officers. In addition, it put to the Applicant independent country information relevant to his claimed risk of future harm as follows (transcript 2, page 38):
Now the [DFAT] report also indicates as far as the critics of Hezbollah are concerned that the department report indicates the critics of Hezbollah would not be at risk unless they presented a direct threat to Hezbollah political power in Lebanon so that information is suggestive quite strongly suggestive you would need to have a reasonably active and high profile opposition to warrant according to the country information being a target for Hezbollah.
(emphasis added)
The Applicant responded that “whoever criticised Hezbollah became a target for Hezbollah” and that “I’m against Hezbollah so I am a target for Hezbollah” (transcript 2, page 38). In other words he suggested that any critic opposed to Hezbollah was at risk. He made no suggestion that his activities, his criticism, or his risk, would change in the future.
When the Applicant’s agent was asked if he wanted to say anything, as indicated at [79] above, he referred to this aspect of the Applicant’s claim on the basis that his profile had risen to a status that had already become a concern to Hezbollah.
In its reasons for decision the Tribunal recorded in some detail the Applicant’s claims and evidence, including his claim that he had been critical of Hezbollah. It not only stated that “overall” it found it difficult to get clear and concise details about this claim, it also had regard to the country information it had put to the Applicant which indicated “that Hezbollah would tend to only target high-profile politically active and outspoken critics of Hezbollah and those people who are perceived to present a direct threat to Hezbollah’s political power in Lebanon…”
The Tribunal recognised that the Applicant claimed he was at risk “because he is against Hezbollah” in describing his evidence and also that, according to his agent, it was claimed that the Applicant’s profile (as a high-ranking officer who voiced his opposition to Hezbollah) placed him at risk if he returned to Lebanon. It recognised that “[t]he representative also indicated that had the applicant stayed in Lebanon he would continue to voice his opposition to Hezbollah”.
The Tribunal addressed the claims based on public criticism of Hezbollah as follows:
55. The Tribunal has also considered the applicant’s claims that he is at risk of harm because he has publically criticised Hezbollah. The applicant’s evidence about that claim has been referred to elsewhere in these reasons. The Tribunal overall found that it was difficult to get clarity from the applicant about the details surrounding this claim. The Tribunal after considering the applicant’s evidence does not accept that the applicant has a well-founded fear of harm on the basis that he claims that he has made critical comments about Hezbollah. The Tribunal does not accept that the applicant’s evidence about speaking to other military officers or even to the mayor of his village or even at social events in critical terms about Hezbollah supports the applicant’s claims that he has a well-founded fear of harm on this basis. The applicant essentially provided no significant detail about what he claimed he said to people in criticising Hezbollah and the applicant’s evidence about the circumstances in which he spoke to people were indicative or suggestive of almost private conversations. As indicated it was unclear as to the extent that the applicant was actually critical of Hezbollah in terms of the details of any of those claimed conversations. The Tribunal notes that the applicant did not raise this claim in his first statutory declaration in support of his protection Visa application but raised the matter in the June 2014 statutory declaration. The Tribunal believes that it would have been reasonable for the Tribunal to assume that if the applicant had a well-founded fear of persecution based on the claims surrounding his brother, the shooting at his home in 2008 and his claimed public criticism of Hezbollah that he would have raised those issues in his initial statutory declaration in support of his protection Visa application. The Tribunal notes the applicant’s explanation surrounding the omission of his claim in relation to Hezbollah shooting at his home in 2008 but as indicated does not accept that the applicant has a well-founded fear of harm on this basis. The Tribunal notes that the applicant left Beirut without incident on his own passport and apparently dressed in his military uniform from Beirut International airport which as indicated has a strong Hezbollah presence. That fact also does not support the applicant’s claims that he has a well-founded fear of harm from Hezbollah should he return to Lebanon either now or in the reasonably foreseeable future. The applicant essentially claimed that he was lucky in being able to leave Lebanon but the fact that he left Lebanon without incident on his own passport through Beirut International airport is not consistent with his claims that Hezbollah was seeking to harm him and is not broadly consistent with his wider claims about fearing harm from Hezbollah. The Tribunal after considering the evidence and country information does not accept that the applicant was lucky in being able to leave Lebanon safely. The Tribunal believes the applicant was of no interest to Hezbollah and was able to leave Lebanon without difficulty on that basis.
Relevantly, the Tribunal found that the Applicant’s past expressions of opposition had involved speaking to people, that this had occurred in circumstances that “were indicative and suggestive of almost private conversations” and that he was “of no interest to Hezbollah” by reason of the manner in which he claimed to have voiced his opposition.
While this specific finding was made in the context of addressing the Applicant’s claim to be at risk of harm because he had publically criticised Hezbollah in the past, it is clear that the Tribunal was of the view that voicing opposition to Hezbollah in the manner claimed by the Applicant (which, taken at its highest, his agent claimed he would continue) was not such as to render him of interest to Hezbollah.
After expressing other concerns about the claims about the checkpoint incidents and subsequent threats, the Tribunal concluded that on the basis of the evidence and country information it had referred to (which included the DFAT report indicating Hezbollah would tend to target only high profile politically active and outspoken critics of Hezbollah and those people perceived to present a direct threat to Hezbollah’s political power in Lebanon) it did not accept that the Applicant faced a real chance of serious harm on the basis of his claims that he would be harmed by Hezbollah if he returned to Lebanon now or in the reasonably foreseeable future.
The Tribunal reached this conclusion in circumstances where there was no claim or evidence that the Applicant would change the manner in which he voiced his opposition to Hezbollah (whether as a civilian or otherwise). He volunteered that he would not participate in demonstrations. He did not suggest he would engage in any high profile political or opposition activities. While in post-hearing submissions counsel for the Applicant posited that the Applicant’s change in status had potential implications as to the manner in which he “could” express his opinion and also in relation to his vulnerability to harm from Hezbollah, at its highest what was put to the Tribunal was merely that the Applicant would “continue” what the Tribunal regarded as a semi-private expression of his opposition to Hezbollah.
Indeed, the Applicant did not claim that (continued) social conversations critical of Hezbollah in themselves established a basis on which he feared harm. Insofar as such a claim was implicit in his suggestion that whoever criticised Hezbollah became a target for Hezbollah, it was addressed in the Tribunal’s reliance on country information that critics would not be at risk unless they presented a direct threat to Hezbollah’s political power in Lebanon and in its finding that the manner in which the Applicant criticised Hezbollah was not such as to make him of interest to Hezbollah.
The Applicant did not claim that civilians expressing opposition to Hezbollah had a particular vulnerability to harm. As the First Respondent submitted, the Applicant did not make any claim that he would or might express his opinion in the future in some other way or that his political profile may potentially increase because of any change in his status or that being a civilian exposed critics of Hezbollah to a greater risk. Nor did any such claim arise squarely on the material before the Tribunal.
Reading the Tribunal decision fairly and as a whole it is clear that the Tribunal had regard to the Applicant’s claims about his future fears based on expression of his opposition to Hezbollah, including his tendency to speak out against Hezbollah at social events. It acknowledged the agent’s submissions that the Applicant would “continue” to voice his opposition to Hezbollah. Contrary to the contention of the Applicant, the Tribunal considered this aspect of his claims. It did not fail to make findings in a manner indicative of a failure to complete the exercise of its task. It is apparent that the Tribunal was clearly of the view, consistent with cited country information, that Hezbollah would only target high profile politically active and outspoken critics and that expressing opposition in social, “almost private” communications would not give a person a sufficiently high profile to be of interest to Hezbollah.
As to any increased “vulnerability to harm from Hezbollah”, as indicated, the Tribunal had regard to country information suggesting that Hezbollah would only tend to target high profile politically active and outspoken critics and those perceived to present a direct threat to its political power. It has not been suggested that there was any evidence or claim to the Tribunal that civilian status in itself increased the vulnerability to harm of those opposed to Hezbollah.
In the absence of any claim (or evidence) that being a civilian altered the risk for those engaged in voicing opposition (in the manner it was claimed the Applicant would continue), it was not necessary for the Tribunal to address expressly the impact of civilian status. While the Tribunal must consider the future and engage in reasonable speculation as to the future risk of harm to an applicant, it must do so based on the evidence and claims before it (Sellamuthu).
In the particular circumstances of this case, the Tribunal’s conclusion that the Applicant was of no interest to Hezbollah when he left Lebanon (notwithstanding that he had voiced his opposition in the past) and its general finding (on the basis of the evidence and country information to which it had referred) that the Applicant did not face a real chance of serious harm on the basis of his claims that he would be harmed by Hezbollah if he returned to Lebanon now or in the reasonably foreseeable future (and the comparable finding in relation to the complementary protection criterion) sufficiently addressed and were dispositive of the Applicant’s claim to fear future harm by reason of continuing opposition to Hezbollah.
While the Tribunal did not make an express finding about the risk the Applicant faced in the future “as a civilian” (as this ground was recharacterised in submissions), having regard to the claims and evidence before it about the Applicant’s claim to hold and to have expressed a political opinion opposing Hezbollah and as to any continued expression of that opinion, the Tribunal did not fall into error in the manner contended for in ground 1 or as developed in submissions.
Ground 1 is not made out.
Ground 2
Ground 2 in the further amended application is as follows:
2. The Second Respondent failed to comply with s425 of the Migration Act 1958 as the Tribunal did not afford the applicant the opportunity to present evidence and arguments on the issues
(i)as to why he had not provided documentation that he was on approved leave from the Lebanese Military and/or
(ii)as to why he had not provided evidence to the Tribunal about the temporary military card that was provided to the Tribunal and which was said to have been issued to the applicant in August 2014
Counsel for the Applicant pointed to the fact that the Applicant claimed he was an army officer who had approved leave until September 2014. The delegate had accepted this for the purposes of the decision of 1 August 2014. The delegate found that the Applicant could return to Lebanon (before his leave expired) and resume his military service or resign his commission.
Subsequently the Applicant’s agent claimed that while the Applicant had initially taken leave of absence from the army, he had decided not to return and hence to “abandon” the army. In pre-hearing submissions, it was claimed to the Tribunal that an arrest warrant had been issued by the army, and a copy of the “search and investigate” document dated 15 September 2014 was provided to the Tribunal. That document referred to the Applicant being on a standard leave that ended on 5 September 2014.
In any event, even if the Tribunal’s finding in relation to the 2014 military identification card is to be seen as akin to a finding rejecting the veracity of this document, in the particular circumstances of this case the Tribunal’s concerns about the Applicant’s ability to produce such a document after the hearing did not have to be put to the Applicant for comment under s.425 of the Act. The Applicant’s credibility was clearly in issue (not fraud or forgery as such). The issue of how any further official document was obtained was clear, having regard to the Applicant’s own evidence to the Tribunal. As the First Respondent submitted, in light of what occurred at the hearing it ought to have been obvious to the Applicant that his ability to procure a document of a kind he told the Tribunal he could not procure would raise questions for the Tribunal of the nature pointed to in its reasons (and see SZMOK and SZRAE).
The second particular to ground 2 is not made out. However jurisdictional error has been established on the basis contended for by the Applicant in the first particular to this ground.
Ground 3
Ground 3 in the further amended application is as follows:
The decision of the Tribunal was affected by legal unreasonableness
Particulars
(i) A critical reason given for rejecting the applicant’s complementary protection claim as a deserter was the “lack of any documentation that the applicant was on approved leave”.
(ii) The applicant had supplied a document to the Tribunal, which it referred to as the “search and investigate document” which stated on its face that the applicant was on approved leave until 5 September 2014.”
(iii) The Tribunal did not find that the search and investigate document was fabricated.
(iv) It was illogical to reason in these circumstances that there was a “lack of any documentation that the applicant was on approved leave”
The Applicant submitted that, contrary to the Tribunal’s finding at paragraph 69 of its reasons that there was a lack of “any” documentation that he was on approved leave from the Lebanese Army, the search and investigate document he had provided to the Tribunal before the hearings stated that he was on approved leave until 5 September 2014. It was contended that if the Tribunal had meant to find that the only evidence that the Applicant was on approved leave was the “search and investigate” document and that it did not accept that evidence, then it would have simply said just that.
The Applicant acknowledged that the Tribunal had referred to the search and investigate document earlier in its reasons for decision and in paragraph 67 had noted that it “refers to the applicant’s leave having ended on “05/09/2014””. However reliance was placed on the fact that at paragraph 69 the Tribunal had concluded that it was not satisfied that the Applicant was a deserter for reasons which included “the lack of any documentation that the applicant was on approved leave”. It was submitted that there was no ambiguity in the finding that there was a lack of “any” documentation. The Applicant observed that in AIL15 v Minister for Immigration and Border Protection [2016] FCCA 1088; (2016) 307 FLR 99, when faced with what was said to be a similar issue, Judge Smith had stated at [23]:
It is well-established that a Court in judicial review proceedings should not comb through the reasons of an administrative decision maker in search of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272. That is what is often called giving a beneficial construction to those reasons. However, the approach does not go so far as to require, or even enable the rewriting of the reasons for a particular decision. Rather, a common sense and realistic approach should be taken to understanding the reasons as a whole to see what the Tribunal was saying and it does not follow that a beneficial construction should or could result in a situation where words are construed as meaning something other than what they, in a plain and common sense way, must be intended to mean: AHX15 v Minister for Immigration & Border Protection [2015] FCA 1183 at [24] (McKerracher J) referring to Fang Wang v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1044 at [14]–[15] (Allsop J, as his Honour then was).
(emphasis in original)
The Applicant also pointed to the fact that the Tribunal finding in relation to this document was that it did not overcome its “concerns that the applicant is not a deserter” from the Lebanese Army as he claimed, but that there was no express finding that this document was fabricated. The Applicant submitted that while in its reasons (in particular at paragraph 68) the Tribunal had referred to a number of features in the document’s appearance in terms which could be taken to suggest doubt about its authenticity, it had merely concluded that paragraph by stating that it “continues to have concerns about the veracity of the document”. It was suggested that the Tribunal had “deliberately” stopped short of making a finding that the document was a fabrication. The Applicant suggested that it could be inferred that the Tribunal was alive to the unfairness of making findings of fabrication without having first afforded an opportunity to the Applicant to comment (as considered in WACO at 524). It was contended that as the Tribunal had not rejected this document as a fabrication, it remained in its terms a document which stated that the Applicant was on approved leave.
The Applicant submitted that in these circumstances it had been “perverse” for the Tribunal to find that the Applicant was not a current serving member of the Lebanese Armed Forces on a basis that included a finding there was a “lack of any documentation that the applicant was on approved leave”, when it was clearly aware that there was such a document which it had not found to be a fabrication. It was submitted that, in substance, the Tribunal had visited upon the Applicant a consequence of a finding that it did not in fact make (that is, that he had fabricated the search and investigate document). Such an approach was said to be jurisdictional in this case as it formed a central part of the Tribunal’s reasoning in rejecting the Applicant’s complementary protection claim.
While ground 3 is expressed in terms of legal unreasonableness, the Applicant also contended in written submissions that the circumstances could be seen as analogous to the situation considered by the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145; (2014) 229 FCR 197 and relied on the reasons of both Mansfield J and Buchanan J.
In SZSNW an independent merits reviewer was said to have reasoned that an applicant had not made a claim of sexual abuse when he was in detention on Christmas Island, when the applicant had in fact made such a claim and material referred to by the reviewer clearly showed that this was so. Mansfield J agreed with the reasons of Buchanan J, discussed below, but was also of the view that the decision of the reviewer was legally unreasonable and not within the area of “decisional freedom” explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] per French CJ. Mansfield J found that the reviewer had wrongfully attributed to the asylum seeker a failure to complain of sexual abuse when he had in fact made such a complaint and that the decision “significantly builds on that wrongful attribution to reject the claims generally made by” the asylum seeker (SZSNW at [16]). His Honour considered that the principle or standard of reasonableness applied in Li was applicable in such a case, stating at [19]:
I have had regard to all the material. Notwithstanding that the IMR expressed a series of bases for concerns about the [asylum seeker’s] evidence, the conduct of the hearing in the respect mentioned (that is the wrong assertion that he had not previously complained of sexual torture) and then the IMR’s use of that material (with other material) to confront him unfairly with that assertion and then to reject the [asylum seeker’s] evidence partly on the basis of the wrong assertion is clearly unreasonable. Moreover, it occurred in circumstances where it should have been plain to the IMR that the assertion was wrong both before the interview and more especially after the interview (in the light of the [Minister’s] responses) when the IMR had the opportunity to review the earlier material. For whatever reason, his post-interview review of it (which he said he had undertaken) did not expose to the IMR that he was incorrect. He could not have looked carefully at the material or at the decision of the person who did the Refugee Assessment Decision.
Buchanan J did not approach the error identified in SZSNW in terms of legal unreasonableness, being of the view that there were difficulties in “readily accommodating the challenge to the IMR decision within the particular rubric of legal unreasonableness” (at [81]) and suggesting (at [82]) that the case was not easily seen as one where the Court could not identify how the decision was arrived at (as discussed in Li and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437). Relevantly, however, Buchanan J found that the reviewer had made an error of law when he disregarded the plain fact that the asylum seeker had raised claims of sexual assault during an interview which took place on Christmas Island “directed specifically to assessing his claim to be a refugee” and that the reviewer “became bound to take that fact into account when it embarked on findings adverse to the credit of the [asylum seeker], based on the false premise that he had not, as he asserted, made such a claim” (SZSNW at [91]).
Buchanan J concluded in SZSNW (at [92]-[93]) that:
92. It cannot be said that those erroneous conclusions could not have materially affected the outcome, in view of the interconnected nature of the IMR’s findings on reliability (see also FTZK v Minister for Immigration and Border Protection [2014] HCA 26 per Crennan and Bell JJ at [97]).
93. The error, therefore, had a discernible effect on the exercise of the IMR’s function. In my view, that function was not carried out in accordance with the purpose to which it was directed.
I note that insofar as the Applicant submitted that Perram J “also found the IMR was unreasonable” at [108], in fact Perram J found no error of law in the IMR’s treatment of the matter but was of the view that if the Minister were to decide not to lift the bar under s.46A of the Act in reliance on the report of the IMR that would be unreasonable (at [110]). His Honour stated at [108]:
In this case, if the Minister were to decide not to lift the bar in reliance upon the IMR report that decision would be unreasonable in the sense that Parliament cannot have intended the power in s 46A to be exercised in circumstances such as these. One does not need Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’) to arrive at this conclusion — even this Court’s now superseded restrictive reading of Wednesbury unreasonableness would be sufficient to do so. As Buchanan J has explained, the IMR concluded that the respondent had lied to him about whether or not he had given a report of his sexual torture when interviewed at Christmas Island. The evidence plainly showed that he had so this finding should never have been made. If the Minister were now to exercise the discretion under s 46A to decide not to lift the bar because of this IMR report it would be a decision that would be legally unreasonable in the sense discussed in Li.
The First Respondent confined his submissions in relation to ground 3 to the construction of the Tribunal reasons and did not take issue with the characterisation of the Tribunal’s approach on the construction contended for by the Applicant as legally unreasonable or with the suggested analogy with SZSNW. In particular, the First Respondent did not contend that there would be no jurisdictional error if it was correct to construe the Tribunal reasons in the manner contended for by the Applicant.
The First Respondent referred to the Tribunal’s reasoning in paragraphs 66 to 69 (set out at [164] above). It was contended that the reference to “no documentation” in paragraph 66 of the Tribunal’s reasons was “contextualised” by the preceding sentences of that paragraph, in which the Tribunal was said to have made it clear that it was referring to “additional” documentation provided in response to concerns raised at the hearing. The “search and investigate” document was said not to fall within this category, as it had been provided prior to the Tribunal hearing.
It was also pointed out that the effect of the “search and investigate” document was considered by the Tribunal at paragraphs 67 to 68 and that at paragraph 67 the Tribunal had explicitly referred to the reference therein to the Applicant’s leave. The First Respondent suggested that it was apparent that the veracity of the search and investigate document was not accepted by the Tribunal for reasons that it gave. The First Respondent also submitted that as the Tribunal rejected the Applicant’s claim to be a deserter from the Lebanese Armed Forces (at paragraph 71 in which the Tribunal addressed the complementary protection criterion) it had therefore necessarily rejected the veracity of the “search and investigate” document.
It was submitted that there were three possibilities for the court to consider as to what was intended by the reference to “the lack of any documentation that the applicant was on approved leave” in paragraph 69:
a)that it referred back to the Tribunal’s concerns in paragraph 66, namely that the Applicant had failed to provide “any documentation” regarding the approved leave “in response” to the concerns raised by the Tribunal at the hearing; or
b)that it referred to documentation other than that referred to in the immediately preceding paragraph, which had been rejected by the Tribunal; or
c)that the Tribunal overlooked the document.
The First Respondent submitted that the least likely of these possibilities was that the Tribunal, having expressly referred to the content of the “search and investigate” document regarding the Applicant’s leave in paragraph 68, had then overlooked that document in paragraph 69 of its reasons. It was said to be far more likely that the Tribunal was reiterating its concerns regarding an absence of documentation submitted after the hearing and hence was excluding the “search and investigate” document.
The First Respondent submitted that seen in context it was apparent that in paragraph 69 of its reasons the Tribunal was referring only to the fact that no documentation regarding approved leave had been provided in response to the Tribunal’s expression of concern at the hearing.
On this basis it was submitted that no error was established in the manner contended for by the Applicant.
Consideration
As argued, this ground raises a preliminary question concerning the construction of the Tribunal’s reasons.
The language used by the Tribunal in paragraph 69 is clear and, on its face, unambiguous. It refers to the lack of “any” documentation that the Applicant was on approved leave, not to the lack of documentation provided in response to the concerns expressed at the Tribunal hearing.
Further, nowhere in its reasons did the Tribunal reject the veracity of the search and investigate document or find that it was fabricated, so that it cannot be concluded that the Tribunal was referring to documents other than those rejected as fabricated. It is the case that in describing the hearings the Tribunal suggested (at paragraph 23) that it had “raised its concerns during the hearing about the document in terms of its veracity” (as well as the circumstances in which the Applicant obtained it). Similarly at paragraph 26 the Tribunal stated that it had asked the Applicant how he obtained this document and that “As indicated the Tribunal raised its concerns with the applicant during the hearing about the veracity of the document. The DFAT country report for Lebanon refers to issues about document fraud in Lebanon.”
However, it is apparent from the transcripts of the two hearings that the Tribunal did not raise its concern about the veracity of this document with the Applicant during either hearing. While it did ask the Applicant how he obtained this document, it did not express any concern about his explanation. Nor did the Tribunal raise any issues with the Applicant about the format or content of the search and investigate document or put to him that country information referred to issues about documentary fraud. It did put some aspects of DFAT reports to the Applicant for comment, but not in relation to documentary fraud. This is to be seen in light of the fact that the delegate did not refer to any country information about documentary fraud in Lebanon.
Despite this, in considering the Applicant’s claims and evidence, at paragraph 60 of its reasons the Tribunal expressed “reservations” about the “search and investigate” document as follows:
The Tribunal has reservations about the "search and investigate" document that has been provided regarding the applicant being described as an "army deserter' based on the applicant's evidence that he was so concerned to leave Lebanon and left in a "rush" that he did not think about the consequences of becoming a deserter from the Army or turned his mind to resigning his commission while he was still in Lebanon. It seems on the basis of the DFAT country information that has been referred to elsewhere in these reasons that the applicant could have resigned from the army while he was in Lebanon. The Tribunal expressed its concerns about the veracity of the "search and investigate" document during the course of the Tribunal hearing. That aspect has been referred to elsewhere in these reasons.
Once again, insofar as there is a reference to an expression of concern about the veracity of the search and investigate document during the hearing, no such expression of concern has been identified, beyond the questions the Tribunal asked as to how the Applicant obtained this document.
In paragraph 66 of its reasons, the Tribunal referred to the Applicant’s claims and evidence and its assessment of his overall credibility. It accepted, based on the information the Applicant had provided that he was “at some stage” a serving military officer in the Lebanese Armed Forces. It did so in circumstances where while it had stated at paragraph 56 that it did “not accept the applicant is a credible witness” this was qualified insofar as the Tribunal found that it did not accept the credibility of “a number of” his claims.
The Tribunal observed that the Applicant claimed he was on leave from the military when he came to Australia and that he had provided documentation, including the 2014 military identification card said to be issued in August 2014 and to relate to a time he was in Australia. In that context the Tribunal stated that “[v]ery little” documentation “about the applicant’s military service” had been provided until the Tribunal raised its concern about that issue. Relevantly, it also observed (at paragraph 66):
No documentation has been provided in relation to the applicant being on approved leave from the military while he has been in Australia and it was claimed that the applicant’s leave had been extended to September 2014. The Tribunal regards the lack of documentation in relation to that issue with concern and as indicated the Tribunal raised the general lack of documentation about the applicant’s military history during the Tribunal hearing. The Tribunal believes, having regard to the applicant’s claimed lengthy military service, that it would be reasonable to have expected that the Tribunal would have been provided with documentation that indicated or showed that the applicant was on approved military leave up until September 2014 as he claimed and that would have been provided in response to the Tribunal’s general concerns about the lack of documentation in relation to the applicant’s military service.
Although the Tribunal expressed concern that no such documentation was provided after the hearing, this part of paragraph 66 appears to be premised on the mistaken view on the Tribunal’s part that the Applicant had not previously provided “any” documentation in relation to being on approved leave (when he had in fact done so). Insofar as the Tribunal subsequently referred generally to the Applicant’s responsibility to provide sufficient evidence to establish his claims, this must relate to all the evidence the Applicant provided.
Despite the Tribunal’s reference in paragraph 67 to the fact that the search and investigate document “includes a paragraph where the applicant is referred to and refers to the applicant’s leave having ended on “05/09/2014””, the relevance of this aspect of the document was not addressed in the Tribunal’s findings.
Further, and contrary to the First Respondent’s submission, I am not satisfied that in paragraphs 67 to 68 of its reasons the Tribunal rejected the veracity of the document. On the contrary, while expressing “concerns about the veracity” of the document in paragraph 68 and referring to its “overall assessment” that the Applicant was not a credible witness and its concerns about the credibility of his claims, the Tribunal finding was that it did “not believe that document overcomes the Tribunal’s concerns that the applicant is not a deserter”. It did refer to issues in relation to the appearance of the document but, as indicated, the Tribunal concluded paragraph 68 by stating “[t]he Tribunal continues to have concerns about the veracity of the document”. This does not amount to a finding of fabrication.
I am not persuaded by the contention that the Tribunal necessarily rejected the veracity of the search and investigate document because it rejected the Applicant’s claim to be an army deserter in considering the complementary protection criterion. In paragraph 71 of its reasons the Tribunal referred back to its earlier assessment of the Applicant’s claims and evidence and reached its conclusion in relation to complementary protection for reasons it said had been “considered and discussed elsewhere” in the decision. Those previous findings did not amount to a rejection of the veracity of this document, but rather to an expression of “concerns” about its veracity. The Tribunal made no finding as to whether the search and investigate document was fabricated or genuine. Nor was its qualified adverse credibility finding such as to imply such a finding.
As the First Respondent submitted it is unlikely that the Tribunal “overlooked” the search and investigate document that it had referred to in paragraph 67 in making findings in paragraph 69. Rather, it is apparent that the Tribunal proceeded on the basis that it was open to it to disregard the search and investigate document based on its expression of “concerns” about its veracity when considering whether there was “any” documentation that the Applicant was on approved leave.
However, while the Tribunal’s approach to the weight to be given to potentially corroborative material such as the search and investigate document may have sufficed to demonstrate that such material has been “considered”, for the Tribunal to find that there was a lack of “any” documentation that showed that the Applicant had been on approved leave until September 2014, it had to reach a conclusion that the search and investigate document was not genuine. It was not sufficient to simply express continuing “concerns” about the veracity of the document. On its face, this document was important corroborative material in relation to a critical aspect of the Applicant’s claims. If the Tribunal meant to say that it rejected its veracity, that is that it did not accept the genuineness of the search and investigate document, it could have said so. It did not. Further, if the Tribunal meant to take this approach, it did not complete its fact-finding process. A step is missing from the Tribunal’s reasoning leading to the conclusion that there was a lack of “any” documentation that the Applicant was on approved leave.
The Tribunal wrongly attributed to the Applicant a failure to provide “any” documentation that he had been on approved leave, in circumstances where such a document, which had not been rejected in its entirety as fabricated, had in fact been provided. The Tribunal made an error in disregarding the reference to approved leave in the search and investigate document in its conclusory finding at paragraph 69 without having rejected the veracity of that document.
As indicated, ground 3 is pleaded in terms of legal unreasonableness although the Applicant also relied in submissions on SZSNW. The characterisation or effect of any error on the construction of the Tribunal’s reasons contended for by the Applicant was not addressed by the First Respondent. There was, in effect, no contradictor in relation to the contention of legal unreasonableness on the construction of the Tribunal’s reasons contended for by the Applicant (but also no admission in that respect). The suggested analogy with SZSNW was not addressed by the First Respondent. In my view, it would be more apt to characterise the Tribunal’s failure as an error of law of the nature considered by Buchanan J in SZSNW or as a failure by the Tribunal to complete its fact-finding process which deflected it from its task of considering available material which had not been rejected as fraudulent or a fabrication and the claims that arose from it (see AIL15).
The Tribunal erred in finding there was a lack of “any” documentation that the Applicant was on approved leave. It significantly built on this incorrect finding to reject the Applicant’s claims. The asserted lack of any documentation in that respect was important to the Tribunal’s reasons for rejecting the claim that the Applicant was a current serving member of the Lebanese Armed Forces. The error had a material effect on the Tribunal’s conclusion and thus a discernible effect on the exercise of the Tribunal’s function or duty to review. It deflected the Tribunal from its duty to consider available material and the claims arising from it and amounted to a jurisdictional error.
As Judge Smith stated in AIL15 at [34]:
There is a growing body of case law dealing with the impact of errors concerning facts on the ultimate decision of a decision-maker: see for example, VAAD v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCAFC 117, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; SZRHL v Minister for Immigration & Citizenship (2013) 136 ALD 641; Minister for Immigration & Border Protection v CZBP [2014] FCAFC 105; Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67; Minister for Immigration & Border Protection v SZSNW [2014] FCAFC 145; SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175; SZSMR v Minister for Immigration & Border Protection [2015] FCA 655; SZWCO v Minister for Immigration & Border Protection [2016] FCA 51. These authorities reveal that, once an error is found, the question is the impact of that error on the Tribunal’s exercise of jurisdiction. Thus, as the duty to review requires the Tribunal to consider available material and the claims that arise from it, an error that deflects the Tribunal from that task will amount to jurisdictional error.
(emphasis in original)
In any event, however the error relied on in ground 3 is characterised, the Tribunal fell into jurisdictional error in the manner contended in the first particular to ground 2. The matter should be remitted to the Tribunal for reconsideration according to law.
I certify that the preceding two hundred and seventy two (272) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 21 September 2018
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