CTK17 v Minister for Immigration
[2019] FCCA 3385
•26 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTK17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3385 |
| Catchwords: MIGRATION – Protection visa – delegate’s decision that primary applicant did not hold a well-founded fear of harm – visa refusal affirmed by Tribunal – primary applicant’s wife and child depart from Australia to Lebanon – reasons for departure include that primary applicant’s father-in-law terminally ill and pressure placed by family and friends that wife should return to her father’s side – Tribunal’s decision quashed and matter remitted for reconsideration – where primary applicant files detailed submissions, statutory declaration and corroborative documents explaining circumstances of his wife’s departure – whether reconstituted Tribunal failed to consider submissions and evidence – scope of obligation to consider evidence – applicable principles – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.11.11 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| First Applicant: | CTK17 |
| Second Applicant: | CTL17 |
| Third Applicant: | CTM17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1324 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 24 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Kenneally |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr J.W.G. Grant |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicants have leave, now for then to file and serve the amended application dated 20 December 2018.
The amended application filed on 20 December 2018 be dismissed.
The first applicant pay the costs of the first respondent fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1324 of 2017
| CTK17 |
First Applicant
| CTL17 |
Second Applicant
| CTM17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 20 December 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on made on 23 May 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants Protection visas pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
In summary, I have concluded that the application should be dismissed. The first applicant essentially complains of a failure by the Tribunal to consider what he relied upon as corroborative evidence why, as he said, the second and third applicants had departed from Australia in 2015. In my opinion, the first applicant has not discharged the onus of demonstrating that the Tribunal failed to consider those matters or that they were, in any event, material. Accordingly, I am not satisfied that it committed jurisdictional error in relation to the matters upon which the ground of review was based.
Background
The applicants are Lebanese nationals. The second applicant is the wife of the first applicant. The third applicant is their son. It appears that the first and second applicant also have daughter; however, no application for protection was lodged in respect of her.
The applicants arrived in Australia on 6 April 2011, the first applicant holding a Student visa.
On 27 July 2012, the applicants applied for Protection visas (visas), claiming that the first applicant’s political activities in Lebanon placed him at risk of serious or significant harm.
In a statement lodged with the visa application, the first applicant[1] claimed to fear harm in Lebanon on the basis of: (1) his political opinion as a member of the Future Movement Party (the FMP); (2) as a member of a particular social group comprising the family of his father-in-law, Mahmoud El Mourad (a member of the FMP and minister in the Lebanese Parliament from 2005 to 2009); and (3) as a Sunni Muslim facing persecution from Shia Muslim militias such as Hezbollah. This, his first statement, also identified country information upon which he relied.
[1] Unless the context requires otherwise, the first applicant will be described as ‘the applicant’.
The applicant claimed that Mr El Mourad had been targeted by Hezbollah after signing a request to the United Nations to establish a special tribunal to investigate the assassination of former Prime Minister, Rafic Hariri in February 2005. He claimed that the persons who signed that request were targeted by pro-Syrian forces and that he had personally been subjected to death threats and assaults, including being shot at and having rocks thrown at his car, all resulting in personal injury.
On 26 November 2012, the delegate refused to grant visas to the applicants. The delegate noted that the first applicant sought protection and that his wife and child made no specific claims but sought visas as members of the applicant’s family unit. The delegate did not accept that the applicant would be persecuted on the basis of political opinion or religion and considered the delay of over a year for the applicant to apply for a Protection visa. The decisional record also noted that the applicant failed to attend a scheduled interview and had not provided any further detail of his claims or supporting documents.
On 17 December 2012, the applicants applied to the Tribunal for review of the delegate’s decision. On 20 August 2013, the Tribunal affirmed the delegate’s decision, finding that: the applicant was not at risk by reason of his father-in-law’s former political career; persons having the profile of a mere FMP member were not being targeted for harm by opponents of that party, and; that he had no subjective fear on account of his Sunni religion. As the second and third applicants had not made their own claims for protection, they did not satisfy the criteria for protection either as refugees or for complementary protection.
Thereafter, on 6 May 2015, the second and third applicants departed Australia. The present application turns largely upon the circumstances of their departure, which were explained in some detail by the applicant’s statutory declaration made on 27 October 2016 (see below).
Following an application for judicial review, on 6 July 2016 orders were made, by consent, quashing the Tribunal’s decision made on 20 August 2013 and remitting the matter for reconsideration.[2]
[2]The jurisdictional error that was contended for in that application was that the Tribunal had failed to consider whether the applicant faced a risk of harm as a result of generalised violence in Lebanon.
On 13 July 2016, the applicant appointed a new migration agent, claiming that earlier he had received erroneous legal advice, including that if his wife and child left Australia, they would be able to return.
On 28 October 2016, the applicants’ migration agent lodged statutory declarations by the first applicant, his friend, Mr Wajde Wade Assaf and a letter from Mr Hussein El Hawli, a co-ordinator of FMP.
In his declaration, the applicant explained the circumstances of the departure from Australia of his wife and child on 6 May 2015. In short, the applicant declared that they had travelled to Lebanon due to pressure from her family because of her father’s declining health. It is convenient to set out the relevant extract from the applicant’s statutory declaration, in which at [64]-[69] he provided his explanation of the circumstances of the departure of his wife and child:[3]
Around 2013, my father-in-law began to get sick in Tripoli. He began to struggle to walk and to breathe, to the extent that he had to get a ventilator to help him. He had so many tests and consultations with doctors in Beirut – they eventually diagnosed him with something called Amyotrophic Sclerosis. It is a terrible disease that kills people slowly, attacking the nervous system and eventually rendering them unable to move, speak or breathe.
By 2014, people from our community were coming from Lebanon, having seen my father-in-law’s condition, and insisting that she go to Lebanon on to see her father. By that time, he could not speak any more, and that she had been inserted in his throat so that he could breathe.
Hearing all of this completely change my wife’s mental condition. Slowly and surely, she became so distressed and guilty. She began to tell me that she wanted to go home and see her father – that she could not live with herself. For one year, form (sic) 2014 to 2016, I pressured her to stay. I told her that going back was a threat to her and the children. We began to argue all the time, every day.
Eventually, she began to say frightening things to me. She began to say that, if her father died and I had stopped her from seeing him, she would never forgive me. She told me that she was going to end her own life. I could not stop her or control her. I did not know what to do. I had to hope and pray that the security that my father-in-law had in Tripoli was enough to keep her safe.
I talked to my agent and he said that it would be possible to bring her back on a visitor visa from Lebanon, or a work visa. I prayed that this would be the case. My wife left Melbourne on 6 May 2015, against my very strong objections. It was heartbreaking for me and I did not know what to do.
By that time, I had lost confidence in my previous agent and so I began to ask around for other advice to bring my wife back. To my dismay, I was told that it was virtually impossible to get a Visitor visa for my wife and daughters to come back, because they had left on Bridging E visas and they were not genuine visitors.
[3] Applicant’s statutory declaration made on 27 October 2016, [64]-[69].
The applicant sought to corroborate these matters by two means.
First, Mr Assaf’s statutory declaration stated that mutual friends had placed pressure on the applicant’s wife to return to Lebanon. He stated:
I know that CTK17 is particularly close to his father-in-law. To my knowledge, his father-in-law has been unwell and basically bed-ridden the past few years. It was something that advanced slowly…it is basically at the point now that his father-in-law cannot even speak over the phone, and requires full time care
I witnessed firsthand the pressure on CTK17 and his wife when his father in-law’s health began to decline. Joint friends of ours would come from Lebanon, having seen CTK17’s father-in-law, and say to CTK17 and his wife that they must go back and see him as he was in a terrible condition…
Secondly, he relied upon a letter from Dr E.W. Bitar (Dr Bitar), neurosurgeon, stating that the applicant’s father-in-law was severely disabled and “that’s why he needs the presence of his daughter…to come and visit him frequently in Lebanon”. Dr Bitar’s letter was supplied to the Tribunal on 2 November 2016 by the applicants’ migration agent as one of five further pieces of evidence that would be relied upon.
On 3 November 2016, the applicants’ migration agent lodged submissions which summarised the applicant’s evidence regarding the second applicant’s return to Lebanon, and advanced (for the first time) a claim to fear harm as a Sunni Muslim from Salafist opponents to the Assad regime in Syria. In addressing the background to the claim, the submissions detailed the circumstances of the departure from Australia of the applicant’s wife and child (pp. 5-6 and 11-12). Those submissions:
a)provided a chronology as to the progressive decline in health of the applicant’s father-in-law;
b)described the nature of amyotrophic sclerosis, and quoted from the applicant’s statutory declaration as to the nature of the disease and, relevantly, the pressure being placed by members of the Lebanese community upon the applicant and his wife for them to return to be with the applicant’s father-in-law;
c)described the worsening mental strain upon the applicant’s wife and again quoted from his statutory declaration as to the pressure under which he had been placed to allow his wife to return;
d)submitted that, assuming the applicant’s Student visa had been cancelled, his wife would be unable to return to Australia after departing from Australia for Lebanon;
e)made legal submissions as to the basis upon which the applicant had a well-founded fear of persecution (pp. 6-24), including his membership of a particular social group; namely, the family of Mr El Mourad. The submission stated:
Finally, we submit that the pressured and fateful decision of CTK17’s wife…to return to Tripoli in 2015 to care for her father, should not be taken as an indication that the circumstances in the city have abated or that the family are no longer subject to significant harm…
As CTK17 explains in careful detail in his most recent statutory declaration, [his wife] made the impossibly difficult choice to return to Tripoli to care for her father in his dying days. As confirmed by the short medical report of Dr Elias William Bitar of 25 April 2015 Mr El Mourad is currently suffering from an acute and debilitating medical condition…in the circumstances, [the wife] felt compelled to return to Tripoli to care for her father, feeling as though safety in Australia could not be purchased at the expense of neglecting her parents in their most difficult days… (emphasis added)
In the final submission, the migration agent concluded: “Further, and in any event, we submit that it is unreasonable to expect CTK17 to relocate out of Tripoli, given that his wife and daughters now reside in the city and will continue to remain there while [her] father is alive.”
Thus, in explaining the circumstances of the departure of the applicant’s wife and child, the submissions relied in detail upon, and quoted from, the applicant’s statutory declaration together with the corroborative supporting evidence of Dr Bitar and Mr Assaf.
On 4 November 2016, the applicant attended a hearing before the Tribunal where he was represented by his migration agent and assisted by an Arabic interpreter. The hearing was of four hours’ duration.
In particular, the Tribunal took evidence from the applicant and Mr Assaf.
The Tribunal identified and put six concerns to the applicant regarding his claims. Relevantly, the Tribunal was concerned that the applicant’s wife’s decision to return to Lebanon might lead it to conclude that she had returned because she did not have a well-founded fear of persecution or face a real risk of significant harm, rather than despite facing such risk. The applicant gave evidence that for a year he had tried to convince his wife not to go, but her position was that she had to go and she could not leave the children behind.
The applicant’s migration agent filed a post-hearing submission and additional country information.
On 23 December 2016, the Tribunal wrote to the applicant’s migration agent providing her with further country information and invited comment. Following the grant of an extension of time, the migration agent made a further submission on 30 January 2017.
On 28 February 2017, the applicant’s migration agent provided the Tribunal with further country information, including translations of various documents.
On 23 May 2017, the Tribunal affirmed the delegate’s decision, providing a statement of its reasons for doing so (Reasons). Consistently with the somewhat extended and involved history of the matter, those Reasons were comprehensive.
Tribunal decision
The Tribunal considered the evidence in detail: [22]-[96]. Having regard to the ground of judicial review, it is not necessary to rehearse in detail the whole of the analysis undertaken by the Tribunal in finding that the delegate’s decision should be affirmed. This is because the applicant’s essential complaint is that the Tribunal failed to consider the reasons that had been given by the applicant for the departure from Australia of his wife and child together with the corroborating evidence. Nonetheless, some examination of those reasons is required.
The Tribunal’s first observation when introducing its consideration of the claims and evidence was that the “second and third named applicants left Australia in May 2015.” The footnote to that sentence attributed this finding to the applicant’s statutory declaration at [68]. The Tribunal next referred to the migration agent’s submissions: [24].
In particular, the Tribunal referred to:
a)the applicant’s statutory declaration at length: [42], [43], [45], [47], [48], [49], [52], [62] and [102(n)];
b)the applicant’s submissions in some detail: [24], [43], [46].
The Tribunal essentially accepted the applicant’s historic claims that his father-in-law had been elected to the Lebanese Parliament in 2005 and had been one of the MPs who signed correspondence seeking that the UN convene a special tribunal into the death of Rafik Hariri: [29], [97]-[98]. It accepted that the applicant’s father-in-law had considered his life to be at risk, and that at some point after 2005, had been protected by 48 security guards and four police officers: [99]. However, it noted that since 2005, the UN had established the special tribunal, the applicant’s father-in-law had retired from parliament and had only two bodyguards and drivers: [100], [110]. While the Tribunal found that the applicant had good reason at that time to fear harm as a member of his father-in-law’s family, it found that by the time he came to Australia in 2011 there was no reason for him to be concerned for his safety due to his associations with father-in-law or the FMP: [101].
By reference to the applicant’s initial statement and statutory declaration, the Tribunal found that with the passage of time the applicant had added new claims of past harm and had increased his claimed level of involvement in politics: [41]-[52]. In a passage which was relied upon as being of central significance to the application for review, the Tribunal stated at [80(4)]:
The Tribunal noted that in relation to the decision by the applicant’s wife and child…to return to Lebanon, it might conclude that they did so because they did not have a well-founded fear of persecution and there is no real risk of significant harm, rather than despite the fear of harm. The applicant said that he had tried to convince his wife for a year not to go, but she had to go and she could not leave the children behind. He took solace from the fact that they have security.
Those matters are to be understood in the context of the Tribunal’s earlier statement at [80(3)] that “the applicant’s father-in-law is very unwell.”
The Tribunal concluded that applicant’s evidence had evolved over time, and that he had embellished or exaggerated past facts and circumstances in order to weave a narrative that gave him a political profile within the FMP. The Tribunal provided 16 reasons why it had formed that view: [102]. It found that the applicant had a low level of involvement with the FMP during the 2009 election campaign and did not have his own political profile: [103]-[104]. It found that the applicant had been involved in canvassing and recording voter intentions during those elections and, that while he would have met some FMP leaders, he had not engaged in those activities so as to build his own political profile: [105]-[106].
The Tribunal accepted that in 2005-2007 some attempts had been made to silence Mr El-Mourad, and although the applicant may have been caught up in the campaign since he lived in the same house as Mr El-Mourad, he had not been singled out for harassment: [107].
The Tribunal found that Mr El Mourad was no longer a political threat, had not been subjected to any threats or violence since 2009, and that as a terminally ill and retired politician, neither he nor members of his family faced a real chance of serious harm: [110].
The Tribunal did not accept that the applicant’s wife or children lived as virtual prisoners in Mr El Mourad’s house or that they faced restrictions on their freedom of movement: [112].
While the Tribunal accepted that the applicant had been shot in the shoulder in December 2010, it found that the applicant’s injury was a result of an accidental shooting. It did not accept that the applicant had been targeted with rocks in 2009 or 2010, or that he suffered any other physical harm for reasons of his political opinion, his relationship with Mr El Mourad, his religion or for any other reason: [113]-[114], [117]-[119].
The Tribunal found that the applicant would continue to be involved in the FMP if returned to Lebanon, but that his activities, considered in combination with his relationship with Mr El Mourad, would not be enough to create a real chance of serious harm: [116].
As to country information, the Tribunal found that: the applicant would not be known to the Syrian government; Lebanese politics were sectarian and that ordinary members of political parties did not face a real chance of serious harm simply because Lebanese political parties were mostly based on religion; country information did not support the assertion that moderate Sunnis or supporters of the FMP faced harm at the hands of other Sunnis, and; there was no probative evidence to support a claim that the Islamic State in Lebanon may harm moderate Sunni Muslims like the applicant: [121]-[128]. The Tribunal also found that country information indicated persons with the applicant’s profile had not become the victims of violence caused by Syria, opponents of the FMP, Wahhabists, Salafists, other Sunnis or anyone else in Tripoli: [132]. The Tribunal found that since the Lebanese Armed Forces had pacified Tripoli in 2015, there had been little violence in that city, and it was not satisfied that the general security situation in Tripoli or in Lebanon more generally would expose any of the applicants to a real chance of persecution for a Convention reason:[133]-[134].
The Tribunal concluded there was a less than real chance the applicants would suffer serious harm for reasons of their actual or imputed political opinion, actual or imputed religion, membership of a particular social group (defined by relation to Mr El-Mourad) or any other Convention reason: [135]-[136]. It also found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there was a real risk that any one of them would suffer significant harm: [139].
Procedural history
On 22 June 2017, the applicants filed an application for judicial review of the Tribunal’s decision. At that point, the applicants were self-represented. The grounds of review read as follows:
While the Tribunal’s decision is quite comprehensive the Tribunal relied upon information which I provided to the previous Tribunal, on matters the previous Tribunal accepted and contrasted that to my current evidence to draw negative conclusions about my case.
The Tribunal engaged in this process without giving me any warning. On one view it should [have] given me some warning about issues it was in and out of, which were accepted by the previous Tribunal.
The first applicant affirmed an affidavit on 22 June 2017 to which he exhibited a copy of the Tribunal’s Reasons. He deposed as follows:
The Tribunal’s decision is quite comprehensive.
The Tribunal misdirected itself at law, constructively failed to exercise its jurisdiction or otherwise failed to discharge its function according to law by failing to consider a claim or evidence to whether the applicant satisfied the complimentary protection criterion in section 36(2)(aa) of the Migration Act 1958.
I made a variety of express and implied [claims] to fear harm in Lebanon.
The tribunal appeared to make a positive assessment of me credibility. It accepted my nephew was killed by shooting him by gun, he just 18 years old for politic problem and revenge with evidence from.
The tribunal doesn’t give any warning about issue it was in doubt of as I submit evidences. I gave evidence about rocks were thrown on my car with medical certificate and on other medical certificate was shooting me in my left shoulder with evidence. I still have the evidence that the tribunal was doubt as letters websites
Also what the Tribunal was [in] doubt about some politic information with future movement, I have evidence
My nephew 18 years old was shooting in his head and back and died until now the justice doesn’t go throw. I fear to go back to Lebanon from killing by shooting
By a Response filed on 6 July 2017, the Minister contended that the application should be dismissed on the ground that the decision under review was not affected by jurisdictional error.
On 21 February 2018, orders were made, by consent, that the application be listed for final hearing. By this order, the applicants were afforded an opportunity to file an amended application with proper particulars of the grounds of the application, together with a supplementary court book and written submissions in support of their application. The applicants did not comply with that order in a timely way.
On 20 December 2018, the applicant filed an amended application by which the original grounds of review were abandoned and a single new ground was inserted in their place.
On 24 January 2019, an order was made that the first applicant be appointed as litigation guardian of the third respondent.[4]
[4] Federal Circuit Court Rules 2001 (Cth), r 11.11(1).
Consideration
If the Tribunal’s decision was a privative clause decision[5], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[6] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[7] Whether it should do so is a separate issue.
[5] Act, s 474(2).
[6]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[7] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[8] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[8]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The amended ground of review reads:
The Tribunal denied the applicants procedural fairness and/or failed to perform its statutory task by failing to consider the first applicant’s evidence and corroborative evidence regarding the second applicant’s decision to return to Lebanon.
Particulars
(a)The Tribunal is required to consider the applicant’s claims and evidence to satisfy the statutory criteria in s 36(2)(a) and (aa) of the Migration Act 1958 (Cth).
(b)The applicants claimed to have a well-founded fear of serious harm and/or face a real risk of significant harm for reason of his political opinion as a supporter of the Freedom Movement in Lebanon.
(c)The Tribunal relied on a number of problems with the applicant’s evidence referred to at [102] of its reasons, to find at [103]–[106], [116] that the first applicant had exaggerated his role in the Freedom Movement in his evidence to this Tribunal, and the role he would play in the Freedom Movement upon return to Lebanon.
(d)One of the problems relied on by the Tribunal was that the second applicant and third applicant had returned to Lebanon despite the claimed risk of serious and/or significant harm.
(e)The Tribunal accepted that the second applicant’s father was terminally ill. However, the Tribunal did not refer to the first applicant’s specific explanation for the second applicant’s return to Lebanon:
i.People from the community in Lebanon had placed the second applicant under significant pressure to return to Lebanon to see her father. This was corroborated by a statement of Mr Wajde Wade Assaf;
ii.Dr Bitar, a neurosurgeon, had provided a note that the second applicant’s father needed his daughter in Lebanon;
iii.The first applicant had received advice that the second and third applicants could return to Australia on a work or visitor visa.
(f)The Tribunal, by relying on the second applicant’s return to Lebanon without considering the explanation and corroborative evidence, failed to properly consider the first applicant’s claims.
Applicable principles – failure to consider evidence
The applicable principles were not in dispute.
Where a valid application for review of a Part 7-reviewable decision is lodged with the Tribunal, it is obliged to consider that decision.[9] The consideration of such an application is the Tribunal’s core function.[10] If it fails to discharge its core function of review and purports to affirm the decision under review, the resulting decision to affirm it is vitiated by jurisdictional error and may be set aside.[11]
[9] Act, s 414(1).
[10]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [5], [12], [22] (French CJ), 112 (Gageler J).
[11]Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [43].
For those reasons, the Tribunal is obliged to engage actively with and give genuine consideration[12] to the issues arising in relation to the decision under review.[13] The critical issue[14] that will usually arise on review of a Protection visa application is whether the applicant has a well-founded fear of persecution,[15] either for reasons of race, religion, nationality, membership of a particular social group or his or her political opinion.[16] In light of the statutory framework provided by Pt 7 of the Act,[17] consideration of whether the person’s fear is well-founded requires identification of the basis on which a claim to fear persecution is held and the evaluation of those claims upon the evidence, information and submissions that are made or available to the Tribunal.[18]
[12]CfCarrascalao v Minister for Immigration and order Protection (2017) 252 FCR 352, [29]-[63] (Griffiths, White and Bromich JJ); Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, [57] (Stone, Foster and Nicholas JJ).
[13] Act, s 425(1).
[14] Applicant WAEE, supra (2003) 236 FCR 593, [45].
[15] Act, ss 5H(1).
[16] Act, s 5J(a).
[17] Act, ss 423, 424, 425, 426.
[18] Applicant WAEE, supra (2003) 236 FCR 593, [44].
The Tribunal is obliged to set out the reasons for its decision and its findings on any material questions of fact and to refer to the evidence on which its findings of fact were based.[19] Within that statutory framework, “a court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material”: Minister for Immigration and Border Protection v SZSRS.[20]
[19] Act, s 430(1)(b)-(d).
[20] (2014) 309 ALR 67, [33] (Katzmann, Griffiths and Wigney JJ) and cases cited.
However, those obligations plainly do not require the Tribunal to refer to all of the evidence, including all of the evidence that is provided by an applicant.[21] Equally, a distinction is properly drawn between a failure to advert to evidence which might have led to a different finding of fact, and a failure to address a contention which, if accepted, might have established that the applicant had a well-founded fear of persecution.[22]
[21] Applicant WAEE, (2003) 236 FCR 593, [46].
[22] Ibid.
Ignoring material relevant only to fact-finding does not of itself found jurisdictional error.[23] It will do so where the failure to address the material occurs in such a way as to affect the exercise of its powers.[24]
[23] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [98] (Robertson J).
[24]Craig v South Australia (1995) 184 CLR 163, 179; see also BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76, [19].
In Craig v South Australia,[25] the Court stated:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. (Emphasis added)
[25] (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
It is settled that failure to refer to evidence, where critical to the review, may constitute a jurisdictional error.[26] The inference that a tribunal has failed to consider an issue may be drawn from the failure to deal expressly with it in its reasons.[27]
[26]SZRKT (2013) 212 FCR 99, [69], [98], [111]-[112].
[27] Applicant WAEE, (2003) 236 FCR 593, [47].
However, an inference that a tribunal had not considered an issue should not be lightly made, particularly where the reasons are otherwise comprehensive and the issue had at least been referred to at some point.[28] Further, it may be unnecessary to make a finding on a particular matter if it was subsumed in findings of greater generality or because the factual premise on which it is based, had been rejected.[29] In Minister for Immigration and Border Protection v SZSRS,[30] the Full Court stated:
. . . The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were the rejected or given little or no weight . . .
[28] Ibid.
[29] Ibid.
[30] (2014) 309 ALR 67, [34] (Katzmann, Griffiths and Wigney JJ) (omitting citations).
It was also common ground that the applicant bore the onus of establishing an inference that the Tribunal had not considered a matter.[31]
[31] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, [53].
The correct approach to the consideration of whether a decision-maker has failed to consider relevant material was stated in Minister for Immigration and Citizenship v SZRKT.[32] Robertson J examined in some detail the line of authority which considered the distinction between claims and evidence and concluded that the distinction was not clear. For that reason, while his Honour accepted that the distinction between an applicant’s claim and evidence may provide a useful tool of analysis, it did not furnish an answer to the question whether a tribunal’s failure to consider a matter constituted jurisdictional error. Robertson J preferred to state a test by reference to the importance of the material to the exercise of the decision-maker’s function. Further, as concerned corroborative evidence, his Honour recognised[33] that whether it was necessary for a tribunal to refer to every document corroborating a claim must depend upon the circumstances of the case and the nature of the evidence. Robertson J stated as to these issues:
The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error…
In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.
The Full Court approved of this approach in MZYTS;[34] see also DHS17 v Assistant Minister for Immigration and Border Protection.[35]
[32] (2013) 212 FCR 99.
[33](2013) 230 FCR 431, [112], citing VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC, 117, [77].
[34] (2013) 230 FCR 431, [70].
[35] [2018] FCAFC 209, [56].
As concerns the cogency of corroborative material and its place in an applicant’s claims, in BXK15 v Minister for Immigration and Border Protection,[36] North ACJ and Charlesworth J suggested that the critical question in determining whether the Tribunal’s failure to address corroborative evidence constituted a jurisdictional error was:
[36][2018] FCAFC76, [23]; cf albeit in a different context, Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309, [96]-[100] (Griffiths and Moshinsky JJ, Logan J agreeing). As counsel for the applicant properly acknowledged, Gill was decided by a Full Court before Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
…whether the Tribunal could possibly have assessed the appellant’s credibility (and hence the substantive issues) differently had it been conscious of the content of the statements at the time that it engaged in its own reasoning process.
The order in which the Tribunal decided to deal with the evidence is also significant.
Since ignoring material relevant only to fact finding does not of itself establish jurisdictional error, it is also necessary to address the materiality of the suggested error. An error by a decision-maker is a jurisdictional error if it materially affects the Tribunal’s exercise of its statutory power.[37] As the applicant submitted, to be a jurisdictional error, a failure to consider the material must either directly or constructively have resulted in the Tribunal failing to consider an applicant’s claims to meet the statutory criteria.[38] In Hossain v Minister for Immigration and Border Protection,[39] the plurality stated (omitting citations):
…the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which it was made. The threshold would not ordinarily be met, for example…where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected the decision that was made.
…Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
[37] Hossain v Minister for Immigration and Border Protection [2018] HCA 34, [30]-[31]
[38] SZRKT (2013) 212 FCR 99 [98]
[39] [2018] HCA 34, [30]-[31] (Kiefel CJ, Gageler and Keane JJ).
I apply these principles to the present application.
Resolution
The mandatory consideration to be addressed by the Tribunal in the present case was whether the applicant met one of the criteria upon which it might have been satisfied that he held a well-founded fear of persecution. An essential question in this case was whether the Tribunal was satisfied that the applicant held a well-founded fear of persecution based upon his political opinion. Contrastingly, it was not mandatory that the Tribunal provide reasons explaining its view upon – or to provide a line-by-line refutation of – every item of evidence that had been placed before it. The Tribunal was only obliged to set out its findings on material questions of fact and to refer to the evidence on which those findings were made. While the Tribunal was obliged to review the decision, a failure to refer to an item of evidence would not have constituted a breach of that obligation unless it was of such importance to the exercise of its function that it could not be said the Tribunal had properly addressed the issue brought forward for review. A conclusion about whether the failure was of such seriousness is to be determined upon consideration of the cogency of the material, the place which it took in the context of the applicant’s claims to protection and the order in which the evidence had been evaluated.
The applicant grounded his submission on the Reasons at [80(4)] where the Tribunal had identified a problem with his evidence regarding the return of his wife and child to Lebanon in 2015. His substantive complaint was that the Tribunal had relied on this adverse issue without considering three matters: (1) the applicant’s explanation that his wife was under pressure to return; (2) her contemporaneous belief she could return to Australia; (3) the corroborative evidence from Mr Assaf or Dr Bitar.
It was common ground that the review gave rise to two questions. First, could it be inferred from the Tribunal’s failure to refer to the applicant’s explanation for his wife’s return to Lebanon, or the corroborative evidence for his wife’s return, that those materials were not considered? Secondly, if the Tribunal did not consider those matters, did such failure constitute jurisdictional error?
Was the material ignored?
The applicant submitted that it should be inferred the Tribunal had not taken into account his evidence, or corroborative evidence regarding his wife’s return to Lebanon for the following reasons:
a)the issue of the applicant’s wife’s return to Lebanon was significant in the context of the review. This was said to be so because the Tribunal had suggested that the second and third applicants had no objective or subjective fear of harm. The second applicant’s explanation for her return, was it was said, highly relevant to the assessment of the applicants’ claims;
b)the explanation and evidence raised three factual premises:
i)there was social pressure on his wife to return to Lebanon;
ii)her father’s doctor had said she needed to return; and
iii)the applicant’s wife believed any risk of harm would be temporary because she could return on a tourist visa.
c)the Tribunal made no reference or findings in relation to the factual premises in its reasons;
d)each factual premise alone, if accepted, supported the applicant’s position that his wife feared harm in Lebanon but felt the risk was worth taking due to her father’s health;
e)in those circumstances, for the Tribunal to consider the applicant’s explanation for his wife’s return, it needed to identify which factual premises it accepted and how they had affected its view of the second applicant’s return to Lebanon.
The issue arising on review of the delegate’s decision was whether the applicant had a well-founded fear of persecution for reasons of religion, membership of a particular social group or his political opinion. The Tribunal was required to conduct a review, including of whether the applicant’s fear was well-founded having regard to the bases on which his claim to fear persecution was made. I have set out above the evidence, information and submissions that were before the Tribunal. Of central relevance to the ground of review was the applicant’s statutory declaration, the declaration by Mr Assaf, the brief report from Dr Bitar and the applicant’s pre-hearing submissions.
It was common ground that the Reasons did not expressly refer to all of the matters which the applicant alleges were not considered by the Tribunal. Accordingly, the court is entitled to infer that matters not mentioned in the Reasons were not considered material to the findings of fact that were made. Equally, the Tribunal was not required to refer to all of the evidence. All of the matters which the applicant alleged the Tribunal had failed to consider, including the fact of his wife’s departure, were discussed in his statutory declaration and submissions; documents which were referred to in the Reasons at some length. The inference that the Tribunal had not considered those matters should not be lightly made and to that end, its Reasons should not be scrutinised “with an eye keenly attuned to error.”
The Tribunal referred to the applicant’s statutory declaration on nine occasions throughout its Reasons. This consideration weighs against the drawing of an inference that the material was not considered, particularly where the Reasons were, as here, comprehensive. As the statutory declaration was identified by the Tribunal on some nine occasions, I am disinclined to infer that it has overlooked. Consistently, with Applicant WAEE, the fact of the applicant’s wife and child’s departure from Australia had been referred to in the Reasons at both [23] and [80(4)].
My disinclination to infer that the Tribunal overlooked material is reinforced by the fact that the matters which the applicant contends were not considered were also referred to in detail in the applicant’s pre-hearing submissions. Those submissions were also referred to in some detail by the Tribunal. In particular, the Tribunal referred to the submission that the applicant’s wife and children lived under virtual house arrest and that their eldest daughter was unable to go to school: [24]. Whether the Tribunal considered this aspect of the applicant’s submission is to be evaluated in the context that the three preceding paragraphs of the submission summarised the applicant’s evidence regarding the impact on the second applicant’s mental health arising from the separation from her father. Again, I accept that it would be unreasonable to infer that the Tribunal had regard, in isolation, to that final paragraph and not to those immediately preceding it. The preferable inference is that the Tribunal did consider those matters.
Reading the Reasons fairly and as a whole, I think it is implausible that the matters addressed above in the applicant’s statutory declaration and submissions were not considered by the Tribunal.
The Tribunal squarely identified as issues, both that the applicant’s wife had departed Lebanon and that the applicant had tried to convince her not to go: [23], [80(4)]. The gravamen of the applicant’s complaint is that the Reasons do not disclose whether the Tribunal had regard also to the matters in his statutory declaration at [64]-[67], the corroborating evidence which explained the circumstances of their departure for Lebanon and more precisely, the applicant’s evidence as to the reasons why they had departed and, by extension, why those reasons bore upon the consideration of whether his fear of harm was well-founded.
The Tribunal discussed six central concerns with the applicant: [80]. It is of importance to the context of the applicant’s complaint that the third matter put to the applicant at [80(3)] (being immediately before the impugned paragraph), contained an express finding “that the applicant’s father-in-law is very unwell.” The Tribunal’s consciousness of that illness provides the context for the fourth matter that was put to the applicant; namely, that the decision of his wife to return to Lebanon on might be “because they did not have a well-founded fear of persecution and there is no risk of significant harm, rather than despite the fear of harm”: [80(4)]. On any view, this involves direct confirmation that the Tribunal had considered that the reason the applicant’s wife had departed Australia for Lebanon was because of her father’s illness.
Paragraph [80(4)] of the Reasons, serves to confirm that the Tribunal discussed its concerns arising from the departure of the applicant’s wife at the hearing and that it recorded, albeit in a summary way, the evidence which he gave in reply. In my view, it is proper to infer that the Tribunal’s discussion with the applicant of this issue occurred against the background that the Tribunal had put to him that his father-in-law was very unwell. The sequence in which the Tribunal addressed the matters at [80(3)] and [80(4)] can sensibly be understood this way. It would involve a strained construction of that reasoning to suggest that the Tribunal did not put to the applicant the fact of his father-in-law’s significant illness as providing the context for which his wife had departed from Australia to Lebanon to be with her sick father.
As noted earlier, the hearing was of four hours’ duration. Contextually, the Tribunal expressly referenced its finding that the applicant’s wife and children had departed Australia to the applicant’s statutory declaration and in particular, to [68] of that declaration: [23]. This supports a strong inference that that paragraph had been considered. Each of [64]-[68] appeared on the same page of the declaration. The likelihood that [64]-[67] of the declaration were ignored strikes me as entirely remote. Equally remote is the idea that the Tribunal commenced its consideration of the applicant’s statutory declaration by selecting [68] in isolation and not first considering, in an orthodox manner, each of the preceding 67 paragraphs of his evidence.
I accept the Minister’s submission that it is unreasonable to infer that the Tribunal had regard to [68] of the applicant’s statutory declaration in isolation, divorced from the other matters that were addressed in [64]-[67]. In those paragraphs of the declaration, the applicant had addressed the illness of his father-in-law, the progressive deterioration of the disease and the approaches being made by members of the Lebanese community urging the applicants to return to Lebanon. The applicant also addressed the corresponding and increasing anxiety exhibited by his wife, the familial arguments and, inferentially, that he relented to his wife’s desire to return to her father’s side. I have set out the text of [64]-[69] of the declaration above. Further, the applicant’s submission referred to the ‘impossibly difficult choice’ faced by his wife of returning to Tripoli to care for her father in his dying days, suggesting that her safety could not be purchased at the expense of neglecting her parents in their most difficult days. In my view, it was inherent in the finding at [80(3)] that the second applicant’s father was very ill, and that each of these matters had been considered.
The other factor relied upon by the applicant – the difficulty in returning to Australia – lies in a different category. Both the applicant’s statutory declaration and pre-hearing submission raised the prospect of the applicant’s wife being unable to return to Australia. The statutory declaration spoke of an erroneous belief to the contrary, based upon supposed legal advice, that the applicant’s wife could return to Australia. Accordingly to his statutory declaration at [69], this belief was apparently held by the applicant at the time his wife had left Australia. Contextually, this issue was located in the applicant’s declaration and submission in immediate proximity to the matters in [68] of the declaration and to which the Tribunal made express reference: [23].
Once the Tribunal identified and considered and accepted the evidence concerning the applicant’s father-in-law’s acute illness and the compulsion of his wife’s return to Lebanon, it was not necessary for the Tribunal to expressly record each of the component reasons for her decision to return. In my view, having regard to all of the evidence and submissions that were before the Tribunal, its acceptance of the reasons why she had done so was subsumed in the finding of greater generality which accepted the applicant’s case that they had returned to Lebanon despite their fear of harm. It follows that I consider there was subsumed in its more general finding that the Tribunal accepted the applicant’s wife had returned to Lebanon, that the reasons for her doing so were based upon her father’s ill-health, the pressure under which she had been placed to return and her own emotional desire to do so. All of those matters were thus accepted by the Tribunal. In my view, they did not inform in any direct way whether the applicant’s wife held a well-founded fear of harm. Insofar as they might have had some bearing on the question of whether the applicant’s wife had decided to return to Lebanon despite any such fear of harm, the evidence did not rise any higher than that. There was no direct evidence from the applicant’s wife (or by the applicant) that she held a well-founded fear of harm for any reason. Considered in this way, the applicant’s contention rested upon an assumption that his wife held a fear of suffering harm if she returned to Lebanon.
In any event, in the decision under review, the delegate found that the second and third applicants had made no separate claim for protection. The Tribunal was conscious that the applicant’s wife had not made any claim of her own to protection and so was not contending that she held a well-founded fear of harm.[40] Her claim for a visa was only made on the basis that she was a member of the applicant’s family unit.
[40]Delegate’s decisional record, Section 1, Applicant Details; RRT decision, [2]; Tribunal’s Reasons, [21].
I accept the Minister’s submission that it was not clear on the evidence whether the applicant’s wife had in fact made a decision to depart to Lebanon on the basis of erroneous advice concerning her ability to return to Australia. Having regard to the content of the applicant’s statutory declaration, an available inference is that such erroneous belief was held by the applicant. However, the evidence in his declaration did not go so far as to indicate that she too held such belief at the time of her departure. It follows that I cannot decide whether the Tribunal took into account whether the applicant’s wife had made a decision to depart for Lebanon on the basis of a mistaken belief as to her ability to return to Australia. The evidence on this issue was not cogent.
Corroborating evidence
The Minister accepted that neither the declaration of Mr Assaf nor the letter from Dr Bittar were referred to in the Reasons. Earlier, I have referred to the matters which were addressed in those documents.
The statutory declaration of Mr Assaf was one of three documents supplied to the Tribunal on 28 October 2016; the other two documents were the applicant’s statutory declaration and a letter from Mr Hussein El Hawli. The Reasons referred frequently to the applicant’s declaration. They also referred to the letter from Mr Hussein El Hawli: [50].
This invites attention to whether it is likely that the Tribunal, having received three documents as attachments to the one email and having referred expressly to two of them, simply ignored the third; namely, Mr Assaf’s declaration. Mr Assaf’s declaration relevantly confirmed that he witnessed the deterioration in health of the applicant’s father-in-law, the pressure that had been placed on the applicant’s wife to return to Lebanon and that she had encountered great difficulty in making her decision to leave Australia. Critically, the Tribunal acknowledged that it had received evidence from Mr Assaf: [4]. Although the hearing was of four hours’ duration, the applicant did not seek to discharge his onus of proof in part by tendering a copy of the transcript of the Tribunal hearing. Although it is not entirely clear, it appears that Mr Assaf and the applicant were the only witnesses who attended the hearing to give evidence.
As noted, the Reasons at [23] and [80(3)-(4)] implicitly accepted that one reason the applicant’s wife had left Australia for Lebanon was that she had decided to do so because of her father’s grave illness.
Collectively, those matters supported a conclusion that the declaration of Mr Assaf had not been ignored, but that his evidence was not considered sufficiently relevant or material to be mentioned. Having regard to the circumstance that Mr Assaf’s evidence went no further than the applicant’s own evidence relating to the societal pressure that was placed on the applicant’s wife to return to Lebanon, it was open to the Tribunal to rely expressly upon the applicant’s evidence without referring also the corroborative evidence of Mr Assaf.
Equally, in the case of Dr Bittar, the applicant relied upon this evidence as being corroborative of the deterioration in health of the applicant’s father-in-law and of the pressure that had been placed on the applicant’s wife to return to Lebanon. Dr Bittar’s letter was the fifth of five attachments to an email sent by the applicant’s migration agent on 2 November 2016. Three of the other attachments were letters from Mr El Mourad, Dr Nabil Chahid Ali and Ahmad Jalal Ghemrawi, and were referred to in the Reasons: [51], [52], [129].[41] The matters addressed by the Tribunal as summarised at [86] above obviated the need to have referred expressly to Dr Bitar’s report which took the matter no further than the finding which was made at [80(3)].
[41]The Reasons at [129] refer to Folio 42 of Tribunal file. Folio 42 was shown to be the letter from Ahmad Jalal Ghemrawi.
Further, nothing in the Reasons is in any way suggestive of a finding by the Tribunal that it rejected the applicant’s evidence that the father-in-law’s health had deteriorated or of the pressure that had been placed on the applicant’s wife to return to Lebanon. The present case stands in marked contrast, for example, to those in which the Tribunal has expressly rejected a contention made by an applicant but ignored objective independent evidence to the contrary: cf SZSRS;[42] DAO16 v Minister for Immigration and Border Protection;[43]
[42] (2014) 309 ALR 67.
[43] [2018] FCAFC 2.
Seen from this perspective, the corroborative evidence of Mr Assaf and Dr Bittar was not necessary to its finding that the applicant’s wife and child had returned to Lebanon by reason of the applicant’s father-in-law’s ill-health. Nor was it necessary to the implicit finding that the applicant’s wife had been faced with societal and family pressure to return to her father’s side.[44]
[44] In another context, these were matters upon which judicial notice might have been taken.
For those reasons also, nor was their evidence material to the findings.
It is useful in the circumstances of the case to employ as a tool of analysis the distinction between a failure to advert to evidence which might have led to a different finding of fact, and a failure to address a contention which, if accepted, might have established that the applicant had a well-founded fear of persecution. The substantive basis upon which the applicant sought review was the absence of direct reference to his evidence about the reasons why his wife and child had left Australia. Accepting that no bright line can be drawn between evidence and claims, the matters upon which the applicant was relying did not rise to the level of constituting a free-standing claim upon which he asserted a well-founded fear of persecution. It follows that, had the material been ignored, this would not of itself found jurisdictional error. Before that conclusion could be drawn, however, it must be demonstrated that a failure to refer to the evidence was critical to the review. In view of the affirmative findings that were made, the evidence was not critical.
Further, I do not consider that the evidence about which complaint is made was cogent and material or critical to the review. The Minister submitted that the applicant overstated the importance of the matters alleged to have been overlooked in the Tribunal’s reasoning. The fact of the second applicant’s return was relied on by the Tribunal in relation to: (1) its finding that the applicant’s evidence had evolved over time and that the applicant had embellished or exaggerated past facts and circumstances in order to weave a narrative that gives him a political profile within the FMP; and (2) its findings regarding the extent of the applicant’s independent political profile within the FMP.
Viewed collectively, I am not persuaded that the applicant has discharged the onus of demonstrating that the Tribunal did not consider the matters upon which he relies in contending that there was a failure to consider the reasons why his wife had departed for Lebanon with their child.
Materiality
If, contrary to my conclusion, the material had been ignored, it is necessary to consider whether the evidence was material in the requisite sense. Upon the principles stated above, the threshold of materiality would not ordinarily be met in the event of a failure to consider evidence if such failure (being the obligation to conduct a review without ignoring relevant material) could have made no difference to the decision that was made, having regard to the circumstances in which it was made.
The applicant submitted that the failure to consider the evidence explaining the context and circumstances of his wife’s departure to Lebanon was material to the Tribunal’s conclusion that he did not satisfy the protection criteria. In particular, it was submitted that the Tribunal had relied on the return of the applicant’s wife as one fact supporting the finding that the applicant had not been credible about his political involvement with his father-in-law and led to the conclusion that the applicant had no political profile and would not be a political activist upon return to Lebanon.
While the applicant conceded that the Tribunal had relied on other problems with his evidence, it was submitted that the failure to consider the explanation for the return to Lebanon was still material to its decision. The applicant submitted that the explanation remained material as the Tribunal had not identified any of the problems at [102] as an independent basis for its findings at [103]-[106]. Further, it was submitted that the Tribunal had not identified the weight being given to each respective problem. It was further submitted that the Tribunal might have assessed the applicant’s credibility differently if it had considered his explanation for his wife’s return to Lebanon.
Consideration of how the Tribunal has framed its Reasons is significant in assessing whether or not a particular finding is material to the Tribunal’s ultimate conclusion. As stated above, the Tribunal’s discussion with the applicant as to the reasons why his wife had departed Australia occurred in the context that it had accepted her father was very unwell. On a fair reading of the Reasons, I consider that the Tribunal was clearly aware of the gravamen of the matter which the applicant alleges the Tribunal had failed to consider. In those Reasons, the Tribunal recorded that on one of two postulated alternative views, the applicant’s wife felt compelled to return to Lebanon despite an alleged risk of serious or significant harm. The Tribunal recorded that it had considered and raised with the applicant the issue that the fact of his wife’s return might be interpreted in different ways; namely, that she had returned home, either because she did not have a well-founded fear of persecution and there was no real risk of significant harm, or that she had done so despite the fear harm. The Tribunal then recorded the applicant’s oral evidence which it is convenient to repeat:
The applicant said that he had tried to convince his wife for a year not to go, but she had to go and she could not leave the children behind. He took solace from the fact that they have security: [80(4)]
In those circumstances, to the extent the Tribunal did not expressly refer to the component reasons that lay behind her compulsion, I consider it did not do so because it did not consider them to be relevant or material.
The applicant conceded that the Tribunal had relied on other problems with his evidence when finding that his evidence had evolved over time and had been embellished and exaggerated. In fact, the Tribunal identified some 16 reasons why it had reached that conclusion, the first of which had been his delay of more than one year before applying for protection: [102](a)-(p).
In my view, even if the Tribunal had not considered the evidence (which I consider it had), it did not fall into jurisdictional error as the evidence was not sufficiently cogent or critical to the review. In contrast with BXK17, here the evidence that was said not to have been considered did not go to the proof of the claims. At most, it was proof of matters which explained issues that may have detracted from the claim. The materiality of the alleged failure to consider it is to be evaluated in the context that the Tribunal had accepted the applicant’s father-in-law was very ill and that his wife had returned to Lebanon, in effect, for that reason. Further, insofar as the applicant had relied upon supposedly erroneous legal advice, his evidence did not rise to the level of establishing that his wife had taken account of that matter as a reason why she might more easily have made a decision to return to Lebanon. His submissions could rise no higher than his evidence. The Tribunal plainly took account of his evidence at [80(4)] that he had attempted to persuade her to remain. Objectively, had the applicant held an erroneous assumption (based on poor legal advice) that his wife might more easily return to Australia, this did not materially inform an assessment of whether he held a well-founded fear of harm or of his credibility on other issues.
While, on one view, the Tribunal’s postulating that the applicant’s wife’s return to Lebanon may carry an implicit finding that she did not subjectively hold a well-founded fear of persecution (or face a real risk of significant harm) in Lebanon, this did not entail rejection of a contention that she felt compelled to return. On that view, the fact of her return to Lebanon was at its highest no more than neutral. It does not tend to prove that the applicant’s wife held a well-founded fear of persecution in Lebanon. Further, since his wife had made no separate claim to protection, it would not have supported the applicant’s claims. The fact of the applicant’s wife returning to Lebanon did not have any bearing on the applicant’s specific and evolving claims to fear harm. As concerned the applicant’s credibility or political profile, this consideration could not reasonably be said to have outweighed 15 other adverse matters going to his credibility and political profile.
In all of the circumstances, I do not accept that, if it had done so, for the Tribunal to have ignored this material affected the exercise of its powers. Any failure to consider the material was not critical to the review.
It follows that in my view, if the Tribunal had failed to consider evidence, such failure could have made no difference to the decision that was made.
Conclusion
The application should be dismissed.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 26 November 2019
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