CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 688
•30 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 2)
CVI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 688
File number: SYG 2013 of 2017 Judgment of: JUDGE KENDALL Date of judgment: 30 August 2022 Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – whether the IAA failed to assess relevant information – whether the IAA’s assessment of whether the applicants faced serious or significant harm was “irrational” or “unreasonable” – whether the IAA’s conclusions regarding the applicants’ claims were “irrational”, “illogical” or “unreasonable” – ministerial intervention – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 351, 473CB, 473DA, 473DC, 473DD, 476 and Division 3 of Part 7AA Cases cited: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545
Bala v Minister for Immigration & Border Protection [2019] FCA 600
CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
EAT17 v Minister for Immigration & Anor [2018] FCCA 3036
EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177
GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v Pandey [2014] FCA 640
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of hearing: 3 August 2022 Place: Perth Applicants: First and second applicants, in person Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections 8 September 2022 In paragraph 77, the words “a statutory discretion pursuant to s 351(1) of the Act to substitute a more favourable decision” have been removed from the end of the final sentence and replaced with the words “broad discretionary powers to assist applicants in situations such as this”. In paragraph 78, the words “the power to do so” have been removed from the end of the final sentence and replaced with the words “broad discretionary powers”. ORDERS
SYG 2013 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CVI17
First Applicant
CVJ17
Second Applicant
CVK17
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE KENDALL
DATE OF ORDER:
30 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(AS CORRECTED)JUDGE KENDALL:
Background
The applicants are citizens of Lebanon (Court Book (“CB”) 51, 77 & 181). The first and second applicants are husband and wife respectively (CB 11). They arrived in Australia by boat in September 2013 (CB 180). The third applicant is their son. He was born in Australia in 2014 (CB 180-181).
On 23 August 2016, the then Department of Immigration and Border Protection (the “Department”) invited the applicants to apply for a protection visa (CB 36-37).
On 21 September 2016, the first applicant applied for a Temporary Protection (Class XD) (Subclass 785) visa (the “visa”) (CB 38-106). The second and third applicants were included in that visa application as members of the first applicant’s family unit.
The first applicant provided a statement with his visa application (CB 90-94) in which he outlined his protection claims as follows:
(a)he is a Sunni Muslim who was born in a village in North Lebanon and did not live elsewhere in Lebanon (CB 90);
(b)Hezbollah have forced many Sunnis to fight in Syria on their behalf;
(c)he worked as a driver in Lebanon, transporting goods to a vegetable market in Tripoli;
(d)he was threatened and beaten by Alawis in the market in 2012 and asked to pay money for entering the market because he was Sunni. The first applicant refused to pay until one of the Alawis held a gun to his head;
(e)a few months later, he was assaulted again by Alawis in the same market. He stated that he was punched when he refused to pay money and, being scared for his life, paid the man the money;
(f)he was assaulted on multiple occasions by Shias from Habcheet in 2013. He was abused, sworn at, insulted on the basis of his religion and punched in the face (CB 91);
(g)between February and June 2013, the first applicant worked for another person putting up posters of “Harari and his son” which included mottos like “no to war” and “yes for peace”. He also put up posters for a Christian political party known as “Lebanese Forces party” or “Jaja”;
(h)in May 2013, while putting up posters, a man stopped and stabbed the posters with a knife and punched him, telling him to take down the poster or he would shoot him. The first applicant claimed the man was Hezbollah as he had a Hezbollah sticker on his car and it was a car the first applicant recognised as being driven by Hezbollah militants;
(i)in June 2013, while postering, he was approached by men with Hezbollah stickers on their cars (and who identified themselves as Hezbollah militants) who abducted him when he refused to work for them. The first applicant claims that he was held for one hour and, when he was released, he was told he had one week and that, if he did not work for them, they would kill him (CB 92); and
(j)he did not travel outside of his village after that or put up any more posters. He took a few weeks to make necessary arrangements and he and his wife (the second applicant) fled Lebanon (CB 93).
On 10 October 2016, the first applicant provided a “corrected” visa application to the Department (CB 122-163). He also provided translations of various documents and supporting material (CB 164-169).
On 25 January 2017, the Department invited the first applicant to attend an interview scheduled for 9 February 2017 (CB 171-173). The first applicant attended that hearing (CB 184).
On 31 March 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visas (CB 180-194). The delegate found that, although the first applicant had experienced conflict with some Shia and Alawites residents of Tripoli, the first applicant had not been forcibly recruited by Hezbollah (either to join the war in Syria or to become a supporter) (CB 185). The delegate ultimately determined that there was “no real chance” that the first applicant would face a real chance of serious harm from the Shia, Alawites or from Hezbollah and that his fear of persecution was “not well-founded” (CB 188).
The delegate’s decision was referred to the Immigration Assessment Authority (the “IAA”) on 5 April 2017 (CB 196).
On 29 May 2017, the IAA affirmed the delegate’s decision refusing to grant the applicants the visas (CB 210-221).
On 26 June 2017, the applicants applied to this Court for judicial review of the IAA’s decision. The application for judicial review is brought pursuant s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the IAA has fallen into jurisdictional error.
the IAA’s decision
It is not disputed that the first applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act is unusually rigid and limits the procedural rights of those who have matters before the IAA.
Relevantly, s 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” which is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made. The IAA can, however, obtain “new information” - defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s 473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act. That section relevantly provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in this matter spans 30 paragraphs and, with legislative attachments, is 12 pages in length.
This Court is generally reluctant to “copy and paste” large portions of the IAA’s decision (preferring, instead, to summarise the IAA’s “core” findings). At times, however, it is useful to provide substantial portions of the IAA’s reasons in order to draw attention, in some detail, to the IAA’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32]. This is particularly the case when (as was the case here) the applicants appeared before the Court without legal representation and had difficulty articulating their primary concerns.
The IAA began by explaining (at [1] and [2]) that:
(a)the applicants are a husband, his wife and their Australian born child (respectively);
(b)the applicants are Sunni Muslims from a village in North Lebanon;
(c)the applicants first arrived in Australia by boat, undocumented, in September 2013; and
(d)on 21 September 2016, the applicants lodged a combined application for temporary protection visas. The second and third applicants were included in the application as dependent family members of the first applicant and did not have claims of their own to protection.
The IAA then explained (at [2]) that only the first applicant had made his own claims to protection and he would be referred to in the IAA’s Decision Record as “the applicant”.
The IAA then detailed the information before it, noting that:
(a)it had had regard to the material referred by the Secretary under s 473CB of Act; and
(b)no further information had been obtained or received.
In relation to the applicant’s claims for protection (and noting that the applicants’ claims were contained in the information referred to it by the Department) the IAA summarised those claims as follows:
7.He claims that he comes from a Sunni village in [omitted], North Lebanon. The neighbouring village is Shia. Because of the war in Syria the applicant's area is increasingly unsafe. Violence is directed against Sunnis by Shia militant groups, including Hezbollah. The inhabitants of the Shia village come to the applicant's village and abuse the Sunnis. They carry guns and swear and if anyone speaks up they are killed.
8.The applicant experienced three instances of what he described as serious harm which he experienced in the course of his work. On one occasion he had taken vegetables to market in Tripoli. Alawites demanded that he pay them money to enter the market. He refused to pay until one held a gun to his head. Some months later he was taking coal to the same market when an Alawite man demanded money. When the applicant refused the man punched him and then the applicant paid. On both occasions the Alawites referred to the fact that the applicant is Sunni. Another time the applicant took a load of timber to the neighbouring Shia village. The Shia man refused to pay the applicant and stated to abuse him and insult his religion. When the applicant insisted on being paid, the Shia man punched him and other Shias joined in.
9.In February 2013 the applicant was doing another job which involved putting up posters on billboards. Some of the posters were for Rafiq Harari (a Sunni politician) and some were for Samir Geagea (a Christian politician). A couple of times he was abused and punched by a man from Hezbollah who took issue with the poster the applicant was erecting. In June 2013 some men approached him in a car with Hezbollah stickers and said that he should work for them. When he refused they put him in the car and took him to a place where he was detained for one hour. They offered him money to work for them - to go to Syria and fight, and to spy for them. The applicant said that he would think about it and they released him. He left Lebanon two or three weeks later because he was afraid that they would kill him if he refused to do what they asked. During that time he was afraid to leave his village and said that he stayed with different relatives.
10.He fears that if he returns to Lebanon he will be killed by the men who tried to recruit him. He fears that he will be harmed as a Sunni and because he will be imputed to hold a political opinion of opposition to Hezbollah, Shias, Shia militants and Alawis. He also fears that he may be harmed due to ongoing sectarian and political violence which is prevalent throughout Lebanon.
Under the heading “Refugee assessment”, the IAA then summarised the legislative provisions relevant to an assessment of refugee status (as per s 5H of the Act) (at [11]) and detailed the meaning and interpretation of a “well-founded fear of persecution” (as per s 5J of the Act) (at [13]).
The IAA then assessed the first applicant’s protection claims in light of the country information before it, determining as follows:
14.Country information states that as a consequence of the civil war in Syria, violence has spilled over into Lebanon. This includes targeted political and sectarian violence, as well as generalised violence. However, not all regions of Lebanon are affected to the same extent. DFAT advises that “Attitudes towards Syria have been a key fault line in Lebanon's domestic politics since 2005, with Shi’a groups tending to support Syria’s involvement in Lebanon and Sunni groups tending to oppose it. This has heightened existing sectarian divides between Lebanon’s Shi’as and Sunnis, which have been further exacerbated by Hezballah’s active support for the Syrian regime during the current conflict in Syria” (citing Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report – Lebanon”, 18 December 2015, Cl5EC96CF14155 at 2.6).
15.The applicant claims that he fled Lebanon after Hezbollah members tried to forcibly recruit him.
16.Country information indicates that Hezbollah does not forcibly recruit members to its political or military wings (citing Canadian IRB: Immigration and Refugee Board of Canada “Lebanon: Recruitment practices of Hezbollah, including forced recruitment, such as Shi’ite youth; consequences for those that refuse to join; availability of state protection; regions controlled by Hezbollah, including ability to locate a person wanted by the group who returns to Lebanon; presence of Hezbollah spies or informers in areas outside the organization’s control; whether Lebanese Shi'ite students returning from international study are considered spies upon returning to the country (2013- October 2015)”, 29 October 2015, OGFDFC61A73). Most of its membership comes from the Shia community but some Christians and Sunnis also support it, and a report considered by the delegate states that it operates a particular militia brigade specifically for Christian and Sunni fighters (citing “Hezbollah’s recruiting of Sunnis in the Bekaa”, Now, 18 September 2015, CXBD6A0DE13858). This report, from September 2015, states that Hezbollah had been recruiting to this brigade in the Bekaa (an area with a large Shia population where Hezbollah is influential) (citing DFAT, “DFAT Country Information Report- Lebanon”, 18 December 2015, CISEC96CF14155 at 5.1). The report indicates that recruits were offered money, weapons, and other enticements, consistent with the applicant’s own evidence about their methods. It states that recruits were not sent to Syria to fight, but rather were being recruited to serve Hezbollah's domestic political agenda. While the report does not suggest that force was being used to recruit to this brigade, it reported that some locals in the particular village who had stood up to Hezbollah's activities had been harmed.
17.On the basis of this information and on the applicant’s own account, I have doubts about the claim that Hezbollah attempted to forcibly recruit him either to fight in Syria or as a spy. There is no information before me to suggest that Hezbollah recruits in areas of Lebanon such as [omitted], where the applicant lives, and where historically it does not have a strong power base and influence, unlike in the Bekaa Valley. The applicant is an older man who does not appear to be the kind of target described in the report mentioned above. He does not appear to have any particular aptitude to be either a fighter or a spy. He is from a religious faith that does not generally support Hezbollah, and whose members are generally opposed to Hezbollah and engaged in fighting against Hezbollah’s allies in Syria. The available information does not indicate that Hezbollah has any shortage of willing recruits that might necessitate the recruitment of unwilling fighters. Having regard to all of the available information, I am satisfied that even if the applicant was approached by Hezbollah or its supporters in his home area, he would not have been subjected to serious harm for refusing to join them, or if he continued to refuse.
18.I accept that the applicant experienced two incidents where he was forced to pay money to Alawites under the threat of violence and in which he was assaulted; where a Shia refused to pay him for a service performed and again the applicant was assaulted; and that there were occasions where the applicant, and other Sunni residents, were subjected to insults, abuse and the threat of harm in his village. I accept that these incidents occurred in a context of heightened sectarian tension. However, I am satisfied that they represent essentially random incidents of minor thuggery and extortion, albeit with sectarian overtones, which do not constitute any form of serious harm as defined in s.5J(5). I am not satisfied that there is a real chance that they would be repeated or would escalate in the future to the level of serious harm.
19.Similarly, I accept that the applicant was subjected to minor harassment while putting up posters deemed offensive by Hezbollah members, but I do not accept that their response reflected or was carried out on behalf of the Hezbollah organisation as such. In these circumstances, I accept that the applicant may again be threatened, harassed and possibly subjected to minor assault if he were to engage in similar work in the future, but I am not satisfied that he would face a real chance of being subjected to serious harm as defined in s.5J(5). Even if he were imputed to be a political opponent of Hezbollah, DFAT advises that non-Shia critics of Hezbollah are not at risk of harm unless that present a direct threat to Hezbollah’s political power. The available evidence does not suggest and I am satisfied that the applicant would not be viewed in this way, and I am satisfied that he is not at risk of harm from Hezbollah as an actual or perceived opponent of theirs. Country information indicates that anti-Syrian regime fighters and anti-Syrian activists may be at some risk of harm but the applicant does not claim to be such a person and does not claim to have experienced harm in the past for these reasons.
20.DFAT describes Lebanon as a diverse country with a high degree of religious tolerance. DFAT notes limited cases of individuals being targeted purely on the basis of their religion and assesses that discrimination and violence are more likely linked to political views than religious affiliations, although as noted above, political affiliation is generally linked with religion in any case, so that a political view may be imputed on the basis of a person’s religion (Ibid at 3.12). The applicant’s home region, [omitted], is a Sunni majority area with a small population of Alawites (Ibid at 2.14), and the available information does not indicate that Sunnis are at risk of sectarian violence there. In these circumstances, and accepting that there is some low level hostility between neighbouring Sunni and Alawite communities, I am not satisfied that the applicant faces a real chance of being targeted and subjected to serious harm on the basis of his Sunni faith in his home region, despite the presence of Shias in the neighbouring village.
21.DFAT advised in its December 2015 Country Report on Lebanon that since 2013 and 2014 incidents of sectarian violence in Lebanon had decreased, ostensibly due to successful intervention by the Lebanese authorities and new co-operation between the traditionally opposed political actors, Hezbollah and the generally Sunni Future Movement (Ibid at [2.38] and [3.16] and [3.21]). DFAT describes Lebanon as broadly stable, despite that stability being tested by the conflict in Syria. DFAT assessed that while the security situation in [omitted] Province is complicated by its long border with Syria, there was only a low risk of residents being affected by generalised violence, which is largely the result of cross-border attacks by the Syrian authorities aimed at anti-regime fighters (Ibid. at [3.53] and [3.26]. While the applicant has claimed that there is no security in Lebanon because of the Syrian war, and has complained of bombings and insecurity, he has not provided specific evidence of such attacks on his village. In my view the available information does not support a finding that sectarian or other generalised conflict occurs to such an extent in the [omitted] region that a resident with the characteristics of the applicant could be considered to face a real chance of harm there.
22.I note that the applicant's work required him to travel into Tripoli, and country information indicates that Sunnis have been attacked there, mostly in a particular area affected over a long period of time by violence between the Sunni and Alawite residents; Sunnis have also been the target of some mass casualty bomb attacks. However, these have not occurred for some time, as noted above, the security situation has improved over the last two years, including in Tripoli, and DFAT assesses that the risk to Sunnis in areas outside that particular neighbourhood, where there is no evidence to suggest the applicant has any need to go, is low (Ibid. at 3.21-3.23). In these circumstances, I am satisfied that there is not a real chance that the applicant faces harm as a Sunni or an imputed opponent of Hezbollah, or in generalised violence, should he need to travel into Tripoli for employment or other reasons, if he returns to Lebanon. Nor, for the reasons set out above, am I satisfied that he faces a real chance of serious harm for those reasons in his home area.
On the basis of the above, the IAA concluded (at [23]) that the first applicant did not meet the requirements of the definition of refugee in s 5H(1) and s 36(2)(a) of the Act.
The IAA then undertook an assessment of the complementary protection guarantees in s 36(2)(aa) of the Act. In this regard, the IAA explained as follows:
24.A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
In relation to the above, the IAA further explained (at footnote 10 in its decision) that:
In MIAC v SZQRB (2013) 210 FCR 505, the Full Federal Court held that the “real risk” test in the complementary protection provisions imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” (The Court in that case was considering the language in the Refugees Convention).
Having assessed the meaning of “significant harm” (as per s 36(2A) of the Act), the IAA then determined as follows:
26.The applicant has not made specific claims to complementary protection separate from those put forward in relation to the refugees criteria.
27.As discussed above, I have found that the applicant does not have a well-founded fear of serious harm in the security climate prevailing in Lebanon now and for the reasonably foreseeable future, in that there is no real chance that he would face serious harm in Lebanon for any of the reasons claimed, including as a Sunni, a person perceived to be opposed to Hezbollah for any reason, or in the context of general insecurity and sectarian conflict. Based on the same information, for the reasons set out above, and having regard to the various forms of significant harm as defined in the Act, I am also satisfied that there is not a real risk that he would face significant harm for these reasons. While I have accepted that the applicant has in the past and may possibly in the future face low level harassment, intimidation and even a minor assault, I am not satisfied that this constitutes significant harm, as defined, including cruel, inhuman or degrading treatment or punishment. I am satisfied that the applicant does not face torture, the death penalty or arbitrary deprivation of life.
On the basis of the above, the IAA concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the first applicant would will suffer significant harm. As such, the IAA determined, the first applicant did not meet s 36(2)(aa) of the Act. Further, as the first applicant did not meet the definition of refugee or the complementary protection criterion, it followed (the IAA determined) that the second and third applicants did not meet the family unit criteria in either s 36(2)(b)(i) or s 36(2)(c)(i) of the Act (at [29]-[30]).
On the basis of the above, the IAA affirmed the decision not to grant the referred applicants the protection visas (at [31]).
application To this Court
In their application for judicial review filed in this Court on 26 June 2017, the applicants provide four “grounds of review”, as follows (without alteration):
1.The Delegate accepted that I experienced incidents which were considered essentially random incidents of minor thuggery and extortion. The Delegate failed to consider that I was attacked as Sunni.
2.The Delegate accepted that I was subjected to minor harassment while putting up posters deemed offensive by Hezbollah yet failed to accept that I was harmed by Hezbollah who wanted me to work for them as informer.
3.I do believe that the Delegate misunderstood my genuine fear of harm and that I will suffer significant harm and will be subjected to cruel inhuman treatment and punishment.
4.The Delegate failed to understand my well-founded fear of harm as a result of what happened to me and misapplied the law.
On 28 September 2017, procedural orders were made by Registrar Morgan of this Court giving the applicants an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were filed by or on behalf of the applicants.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 26 June 2017, a Court Book numbering 223 pages (marked as Exhibit 1) and written submissions filed by the Minister on 21 July 2022.
On 3 August 2022, the first and second applicants appeared before the Court without legal representation. They were assisted by an Arabic interpreter. At the commencement of the hearing, the Court confirmed with the applicants that they had received a copy of the Court Book and the Minister’s written submissions. Whilst both the first and second applicants appeared at the hearing, only the second applicant addressed the Court.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented party to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the second applicant an opportunity to outline orally what she thought the IAA “did wrong”.
To assist the applicants, the Court explained to them what this Court can and cannot do. The Court explained that its task is limited to assessing whether the IAA fell into jurisdictional error. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims for protection (or integers of those claims): Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained to the applicants that this Court cannot review the merits of the IAA’s decision or grant the applicants the visas that they seek. Rather, the role of the Court is restricted to determining if the IAA made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the second applicant told the Court that she and her husband had explained to the Department that they had “escaped from Hezbollah” (stressing that this is an international terrorist group) and she did not believe that this evidence was considered. The second applicant also explained that Hezbollah started “taking men and children and forcing them to fight” – noting that this had happened to her husband and that he “did not have any choice in that”. She emphasised that, when this was explained to the Department, they said they would “check out this information”. They did so but then said “it was not happening”. The second applicant stressed that, without being “on the ground” in Lebanon, people cannot understand what happens in the country.
To the extent that the second applicant’s oral submissions address the issue of jurisdictional error, they will be discussed below.
Consideration
The applicants’ grounds of review lack particulars. While there is certainly jurisprudence to the effect that “a failure to particularise a ground of review” can warrant the dismissal of an application on that basis alone (WZATH v Minister for Immigration and Border Protection [2014] FCA 969), this Court’s preferred approach (noting the reasoning in Bala v Minister for Immigration & Border Protection [2019] FCA 600) is to be mindful that, where applicants are unrepresented and may not have the adequate knowledge or ability to prepare for a hearing, or to understand what is required of them, the Court should read the applicants’ grounds of review as broadly as possible and remain astute to the possibility of legal error in the IAA’s decision and raise any concerns in that regard with the Minister. Further, in its duty to applicants as unrepresented litigants, the Court should remain astute to error in the IAA’s decision and, to the extent that this decision reveals any material error, the Court should seek to address that error: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Ground 1
Ground 1 provides:
1.The Delegate accepted that I experienced incidents which were considered essentially random incidents of minor thuggery and extortion. The Delegate failed to consider that I was attacked as Sunni.
Ground 1 (indeed, grounds 1 to 4) refer to “the delegate”. The Court proceeds on the basis that the applicant is referring to the IAA as the Court has no jurisdiction in relation to the delegate’s decision: ss 476(2) and (4) of the Act. Further, any errors found in the delegate’s decision would, in effect, be “cured” by the IAA’s decision on review: Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38].
In relation to ground 1, the applicants are, in effect, arguing that that the IAA failed to assess relevant information. Specifically, that the applicants are Sunni and were persecuted (by Hezbollah) because they are Sunni. Those concerns were arguably also raised by the applicants in oral submissions before this Court.
Having reviewed the IAA’s decision, it cannot be said that the IAA failed to assess any risk of harm to the applicants on the basis of their being Sunni.
Relevantly, in relation to the refugee criteria in s 36(2)(a) of the Act, the IAA writes (emphasis added):
18.I accept that the applicant experienced two incidents where he was forced to pay money to Alawites under the threat of violence and in which he was assaulted; where a Shia refused to pay him for a service performed and again the applicant was assaulted; and that there were occasions where the applicant, and other Sunni residents, were subjected to insults, abuse and the threat of harm in his village. I accept that these incidents occurred in a context of heightened sectarian tension. However, I am satisfied that they represent essentially random incidents of minor thuggery and extortion, albeit with sectarian overtones, which do not constitute any form of serious harm as defined in s.5J(5). I am not satisfied that there is a real chance that they would be repeated or would escalate in the future to the level of serious harm.
Further, in relation to any complementary protections as per s 36(2)(aa) of the Act, the IAA writes (emphasis added):
27.As discussed above, I have found that the applicant does not have a well-founded fear of serious harm in the security climate prevailing in Lebanon now and for the reasonably foreseeable future, in that there is no real chance that he would face serious harm in Lebanon for any of the reasons claimed, including as a Sunni, a person perceived to be opposed to Hezbollah for any reason, or in the context of general insecurity and sectarian conflict. Based on the same information, for the reasons set out above, and having regard to the various forms of significant harm as defined in the Act, I am also satisfied that there is not a real risk that he would face significant harm for these reasons. While I have accepted that the applicant has in the past and may possibly in the future face low level harassment, intimidation and even a minor assault, I am not satisfied that this constitutes significant harm, as defined, including cruel, inhuman or degrading treatment or punishment. I am satisfied that the applicant does not face torture, the death penalty or arbitrary deprivation of life.
The IAA’s analysis does not exist in a vacuum. The statutory context dictates what can and cannot be assessed when making determinations of the sort made here.
The Court notes that, relevantly, in relation to protection visas, s 36 of the Act provides:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm …
In assessing whether an applicant is a refugee (as per s 36(2)(a) above), the IAA is guided by s 5H of the Act, which provides:
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; ….
Section 5J of the Act then provides:
5J Meaning of well‑founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
….
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c)the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In relation to the complementary protections afforded (as per s 36(2)(aa) above), s 36(2A) relevantly provides:
(2A) A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.
It is clear from the above that the IAA did accept that the threats and assaults described by the first applicant had occurred and, importantly, that these events had sectarian overtones. However, having assessed the relevant country information, the IAA concluded that the incidents were, in effect, minor and did not give rise to a “real chance of serious harm” in the future as per ss 5J(4)(b) and 5J(5) of the Act. Nor did the first applicant’s experiences evidence a real risk that he would face “significant harm” in the future for any of the reasons claimed by the applicant (as per s 36(2A) of the Act).
As explained by the Minister (in written submissions filed on 21 July 2022 at [17]), whether conduct is sufficiently serious to amount to serious or significant harm “is a matter of fact and degree” for the IAA’s consideration: referencing Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [51]. Here, having assessed the relevant legislative criteria and the country information before it, the IAA determined that, although it did not doubt that the events in question occurred, those events did not amount to harm of the sort that the Act was intended to cover.
To the extent that the applicants are suggesting that the country information relied on was “incorrect” or that “other country information” should have been referenced, the Court again disagrees. As this Court has explained elsewhere (relevantly, in EAT17 v Minister for Immigration & Anor [2018] FCCA 3036), the accuracy of country information is a matter for the IAA (not for this Court). Further, this Court would be engaging in an impermissible merits review if it made its own assessment of country information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The choice and interpretation of country information is also a factual matter for the IAA alone: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 84 ALD 545; NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
To the extent that the applicants are suggesting that the IAA’s assessment of whether the applicants faced serious or significant harm was “irrational” or “unreasonable” the Court again disagrees.
The principles in relation to legal unreasonableness were summarised by Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] as follows:
…The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
…
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
Here, the IAA’s findings (and its approach when assessing the evidence before it) was, contextually, reasonable. It cannot be said here that the IAA made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33]. Further, it cannot be said that the IAA’s findings are lacking an independent reasoning process or logical connections or are based on subjective grounds or insecure assumptions: CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 at [26]-[28]. Disagreement with the IAA’s decision, however strong, does not evidence error on the basis of irrationality.
The IAA assessed the evidence that the applicants had provided and the country information before it. There is no suggestion that that evidence was not reliable. The IAA assessed and ultimately relied on information from respected authorities. In the circumstances, it cannot be said that only one conclusion was open to the IAA (namely, to accept the applicants’ claims).
Overall, the Court rejects any suggestion that the IAA’s findings were not supported by probative material or that the conclusions drawn could not reasonably be drawn from the facts, evidence and country information relied upon.
No error arises in relation to ground 1
Grounds 2 and 3
Grounds 2 and 3 provide:
2.The Delegate accepted that I was subjected to minor harassment while putting up posters deemed offensive by Hezbollah yet failed to accept that I was harmed by Hezbollah who wanted me to work for them as informer.
3.I do believe that the Delegate misunderstood my genuine fear of harm and that I will suffer significant harm and will be subjected to cruel inhuman treatment and punishment.
Arguably, the applicants are again suggesting here that the IAA’s conclusions were irrational, illogical or unreasonable and not open to it on the information and evidence before it.
For the reasons outlined above in relation to ground 1, the Court again disagrees.
In assessing the applicants’ claims (all of which were assessed by the IAA), the IAA forensically assessed the country information before it. As accurately summarised by the Minister in this regard (at [9]-[14] in written submissions filed on 21 July 2022):
(a)the IAA expressed doubt about Hezbollah having forcibly recruited the first applicant to fight or work as a spy and found that the first applicant would not have been subjected to serious harm, even if he had been approached by, and refused to join, Hezbollah (at [17]). In reaching this conclusion, the IAA had regard to the fact that Hezbollah did not have a strong power base in the first applicant’s home region, the first applicant was from a religious faith not normally supportive of Hezbollah and had no particular aptitude as a fighter or spy. The IAA also noted country information indicating Hezbollah does not forcibly recruit members (at [16]);
(b)the IAA accepted that the first applicant had experienced two incidents where he was forced to pay money, threatened and assaulted by Alawites (at [18]). However, the IAA found that the incidents, while having sectarian overtones, were essentially random acts of minor thuggery and extortion, which did not constitute serious harm (at [18]);
(c)the IAA accepted that the first applicant was subjected to minor harassment while putting up posters deemed offensive by Hezbollah (at [19]). The IAA did not accept that the individuals’ response was carried out on behalf of Hezbollah. While the IAA accepted that the first applicant may be threatened, harassed or subjected to minor assaults in the future if he engaged in similar work, it was not satisfied that he would face a real chance of serious harm, as it did not consider that the first applicant would be imputed to be a political opponent of Hezbollah (at [19]);
(d)the IAA went on to consider whether the first applicant faced a real chance of serious harm by reason of his Sunni faith. The IAA considered that the first applicant’s home region was a Sunni majority area situated near a Shia village and concluded that there was not a real chance that the applicant would be targeted and subjected to serious harm on the basis of his Sunni faith (at [20]); and
(e)the IAA found that the first applicant operated mainly in Tripoli and that, although Sunnis have been attacked there, noted that this occurred mostly in a particular area affected by ongoing violence and that there was no evidence to suggest that the first applicant needed to go to that neighbourhood. The IAA was therefore not satisfied that the first applicant faced a real chance of serious harm in his home area (at [22]).
On the basis of the above, the IAA concluded that the first applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and thus did not meet s 36(2)(a) of the Act (at [23]).
Further, again on the basis of the all of the evidence before it, the IAA determined (at [28]) that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Lebanon, there was a real risk that the applicants would suffer significant harm. Importantly, the IAA was not satisfied that the harassment, intimidation and assault suffered by the applicant constituted “significant harm” (including cruel, inhuman or degrading treatment or punishment, or would in the future) as per s 36(2A) of the Act.
Overall, the IAA’s reasons in this regard demonstrate that it gave careful consideration to the evidence before it. Overall, while the applicants may well disagree with the conclusions drawn, it cannot be said here that the IAA “could not possibly” have come to the conclusions it came to in relying on and assessing the information it ultimately referenced.
The IAA’s decision, contextually, is neither illogical nor irrational.
No error arises in this regard.
Ground 4
Ground 4 provides:
4.The Delegate failed to understand my well founded fear of harm as a result of what happened to me and misapplied the law.
To the extent that ground 4 suggests that the IAA’s conclusions about the likelihood of harm are illogical, the Court disagrees and repeats its findings in relation to grounds 1, 2 and 3 as above.
In so far as there are concerns about the IAA’s legal framework, the Court again references its analysis above of the relevant statutory framework for both the refugee criteria in s 36(2)(a) of the Act and the complementary protections afforded in s 36(2)(aa) of the Act.
It cannot be said here that the IAA erred in its interpretation of this statutory context, which it clearly sets out at [11] and [13] (in relation to its assessment the refugee criteria in s 36(2)(a) of the Act and [24]-[25] (in relation to its assessment of the complementary protections in s 36(2)(aa) of the Act.
No error arises in this regard.
Ministerial Intervention
The applicants pleaded with the Court for a favourable outcome. They explained that they arrived in Australia from Lebanon in 2013. The IAA’s decision was handed down in 2017 and the couple now has three children – all of whom have been educated here and who now only speak English. The applicants emphasised that the situation in Lebanon has deteriorated since the IAA delivered its decision and that it is now unsafe for them to return.
It is conceivable that the country information now available paints a different picture to that which was available to the IAA in 2017. The Court cannot, however, take that “changing situation” into account when assessing whether the IAA fell into error. The IAA’s decision can only be assessed on the basis of the material before it at the relevant time and by reference to circumstances as they existed at the relevant time: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; EGW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1177; GLX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 9.
This Court’s jurisdiction is limited and, without evidence of jurisdictional error on the part of the IAA, the Court cannot assist the applicants – regardless of the current situation in Lebanon.
While the Court cannot assist the applicants (as no issue of jurisdictional error arises) the Court nonetheless draws the applicants’ attention to the Minister’s discretionary powers. Where, as here, the IAA has affirmed a decision refusing to grant the applicants visas because of a failure to meet a mandatory criteria for the grant of that visa, and that decision has been upheld on review, the Minister has broad discretionary powers to assist applicants in situations such as this.
While the Court has no power or ability to compel (or indeed ask) the Minister to exercise his discretionary powers, the Court notes (for the applicants’ benefit) that the Minister does have broad discretionary powers.
Conclusion
The application for judicial review filed by the applicants on 26 June 2017 has failed to identify any jurisdictional error on the part of the IAA. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 30 August 2022
13
22
1