CYC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 191
Federal Circuit and Family Court of Australia
(DIVISION 2)
CYC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 191
File number(s): MLG 1414 of 2017 Judgment of: JUDGE YOUNG Date of judgment: 14 March 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority to refuse a protection visa - where the applicant is a citizen of Lebanon - where the applicant is a member of the Sunni sect - where the applicant claims the Authority failed to give consideration of the requisite quality to certain claims – where the applicant says the claims clearly emerged on the materials – where the applicant claims the Authority committed jurisdictional error – application is dismissed with costs Legislation: Migration Act 1958 (Cth) Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
ETA067 v The Republic of Nauru [2018] HCA 46
Plaintiff M1/2021 v Minister for Home affairs (2022) 400 ALR 417
Division: Division 2 General Federal Law Number of paragraphs: 53 Date of hearing: 21 February 2023 Place: Darwin Counsel for the Applicant: Mr Cordiner KC with Mr Viney Solicitor for the Applicant: Holding Redlich Counsel for the Respondent: Mr Barrington Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 1414 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE YOUNG
DATE OF ORDER:
15 March 2023
THE COURT ORDERS THAT:
1.The name of the Minister for Immigration and Border Protection be amended to the Minister for Immigration, Citizenship, and Multicultural Affairs.
2.The application is dismissed.
3.The applicant is to pay the first respondent’s costs in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Young
This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) made on 29 May 2017 to affirm a decision of the Minister's delegate made on 27 February 2017 to refuse the applicant a protection visa.
The applicant is a citizen of Lebanon and a member of the Sunni sect of Islam. His home city is Tripoli in northern Lebanon, although he lived in Beirut for some time before his departure for Australia in 2013. At that time Tripoli was the scene of tension and fighting between armed Sunni extremists: the Salafis (or Salafists), and Alawis (or Alawites), another sect of Islam. The conflict was influenced by the civil war in neighbouring Syria.
The refugee claims of the applicant identified by the Authority relevantly included:
·The applicant and his family lived in an area of Tripoli near to a traditional Alawite area, Jabal Mohsen, and a traditional Sunni area, Bab Al-Tabbaneh, and there was often shootings and violence between these communities.
·Sunnis are expected to support Sunni groups or militias against the Alawites.
·He had been invited to join a Salafi militia but refused. He was scared he would be thought to be a traitor to the Sunni side and Salafists would loiter near his shop in a threatening manner.
·While he was learning to drive he had passed through an Alawite area and was subsequently stopped by Salafis at a checkpoint and accused of providing information to the Alawites. He said he was released because a Lebanese army post was nearby.
·He also said that in 2012 he and his brother had been shining a torch or torches at their home at night and they were accused of sending signals to Alawites and were threatened with shooting. The next day the man who had threatened them came to the applicant’s shop, hit the applicant’s brother and threatened him with a gun.
·He said he subsequently became a target for extremists and they set his rubbish bins on fire, threw rubbish at his shop and damaged it.
·Following the killing of a Salafist in a street battle, shops nearby were told to close. He did not close his shop and was threatened with a gun. The Salafists assaulted him but stopped when a group of elderly women came by.
·The applicant complained to the father of one of the attackers but the father threatened him with a weapon and accused him of working against the Salafists.
·After this the applicant closed his shop and went to Beirut but Salafis, and those associated with them, continued to harass him and harassed the applicant whenever he returned to Tripoli.
·The applicant fled Lebanon in 2013 and came to Australia and since arriving here he has married an Australian Christian and they have a son.
·In the interview with the delegate the applicant made an additional claim that he tried to convince young people in the neighbourhood not to join the extremists. Because of this the extremists considered him an infidel.
·His brother had been forcibly recruited by the Salafis but after about two months the applicant and his family were able to convince his brother to leave the Salafis.
·In a post-interview submission the applicant asserted, among other matters, that his fear of persecution arose cumulatively from multiple factors, including his religion as a Sunni Muslim; a real or imputed political opinion as being pro-Alawite and opposed to the Sunni Salafi campaign of violence; and as a person who married outside his faith to an Australian Christian.
The Authority accepted that the applicant had lived in a dangerous part of Tripoli plagued by conflict. In relation to the applicant's claims to fear harm from Salafis the Authority accepted that the applicant had been invited to join the Salafis but refused.
The Authority also accepted that the applicant had been stopped by Salafis at a checkpoint and questioned while driving a car near an Alawite area. However, the Authority did not accept that if the applicant had been suspected of working with the Alawites or if he was considered a traitor that he would have been released because a Lebanese army post was nearby. The Authority referred to country information that the Lebanese army did not intervene against Salafi militias. The Authority did not accept that the applicant had any adverse profile or was suspected of assisting Alawites. The Authority, while accepting the applicant's claims of subsequent harassment and assault, was not satisfied that this was in any way related to a suspicion of assisting or co-operating with Alawites.
In relation to the assault on the applicant in 2012, the Authority concluded that this had occurred in the immediate aftermath of sectarian violence that resulted in a member of the Salafi group being killed. The Salafis then directed all nearby shops to close but the applicant did not do this until he was ordered to do so. Later Salafis came back and assaulted him. The Authority did not accept that he was assaulted for any reason other than his initial refusal to close his shop. The Authority also considered it implausible that if he was considered a traitor as he claimed that he would go alone to the home of one of the attackers and speak to that person's father.
The applicant asserted that Salafis continued to harass him and that he went into hiding and fled to Beirut. He said, however, that he returned to his family home in Tripoli for visits and while he was taunted he did not suffer any assaults or violence. The Authority accepted that he may have been stopped and harassed in Beirut by Salafists but any such incidents were random and generalised and not related to any incident or groups in Tripoli. The Authority was not satisfied that the applicant had any ongoing adverse profile as a result of these incidents.
The Authority was also prepared to accept the applicant's claim raised in his interview with the delegate that he had spoken to young people and neighbours to try to dissuade them from joining the Salafis and, given his own experience and that of his brother who was formerly a member of a Salafi group, that he had a negative view of such organisations. The Authority accepted that he had counselled persons against joining these groups and engaging in violence. The Authority also noted that the applicant had not claimed to have spoken against the ideology of this group or these groups.
The Authority considered that it was plausible that the applicant's refusal to join the Salafis and his attempts to dissuade young people from joining them may have attracted the attention of Salafis in Tripoli. However, taking into account all these matters, in the absence of any evidence that after the applicant had left his shop any Salafis had ever approached other members of his family to threaten him or search for him or that Salafis had ever visited the applicant's family home or subjected him to further violence, the Authority did not accept that he had any adverse profile with the Salafis or was of interest to them.
In relation to the applicant’s claim about his marriage to an Australian Christian woman, the Authority referred to Department of Foreign Affairs and Trade (DFAT) country information that inter-confessional marriages can attract societal and official discrimination and, “in some circumstances” violence, but noted that other country information indicated that marriage between Muslims and Christians is widespread in Lebanon. The Authority noted that the applicant’s family did not oppose the marriage. The Authority said there was no country information in the referred materials that suggested that someone marrying a person of another religion or from a western country or both was at risk of harm from state or non-state actors. The Authority noted that the DFAT country information said there were limited examples of individuals being targeted on the basis of their religion alone and that discrimination and violence are more likely linked to political views.
The Authority concluded that while the applicant had suffered past harassment and violence at the hands of Salafis, he did not have an adverse profile, particularly given the passage of time since those events. It found that the applicant did not face a real chance of serious harm on the basis of his refusal to join the Salafis, or from any imputed opposition to or adverse opinion of the Salafi movement, or on the basis of any imputed support for Alawites. The Authority was not satisfied that the Salafis would want to harm or harass the applicant for any reason including by reason of his marriage in Australia.
The amended ground of review is as follows:
1The Tribunal (sic) failed to give consideration of the requisite quality to certain claims made by the Applicant which were the subject of substantial and clearly articulated arguments, or which clearly emerged on the materials before the Tribunal.
Particulars:
aIn the materials before the Tribunal, the Applicant clearly expressed (or alternatively, it clearly emerged from those materials) that if he were returned to Lebanon he would have imputed to him a pro-Alawi political opinion (Pro-Alawi Imputed Opinion). That was clear based on the Applicant's arrival interview of 10 July 2013, his statement of 26 October 2016, and his submissions made on 20 February 2017 to the delegate of the Minister ahead of the Initial Decision. It was also clear based on the acceptance of some foundational facts pertaining to the Pro-Alawi Imputed Opinion in the Initial Decision, and the acceptance of the Pro-Alawi Imputed Opinion in the Initial Decision.
bIn its reasons for the Tribunal Decision, the Tribunal failed to make a finding on whether or not the Applicant would or would not have a Pro-Alawi Imputed Opinion, or how the foundational facts raised to support that representation (or which clearly emerged) might bear on any such finding. In this way, the Tribunal failed to give the required level of consideration (i.e., it ignored, misunderstood or overlooked; or failed to engage intellectual process with) to the Pro-Alawi Imputed Opinion.
cThis error was material, and gives rise to jurisdictional error, because there is the possibility that if the Tribunal had engaged in required level of consideration concerning the Pro-Alawi Imputed Opinion, it could have come to a different conclusion.
dFurther or alternatively, in the materials before the Tribunal, the Applicant clearly expressed (or alternatively, it clearly emerged on those materials) that if he were returned to Lebanon he feared persecution due to his marriage to his Christian Australian wife (Christian marriage claim). That was clear based on the Applicant's submissions of 20 February 2017 made to the delegate of the Minister ahead of the Initial Decision, which advanced several essential components or integers to this claim: (i) that the Applicant would be exposed to a real risk of harm if they (himself, his wife, and their child) return to Lebanon due to their interfaith marriage; (ii) Country information identifying that such marriages were not socially accepted, are considered a transgression, and that women face social penalties for them; (iii) that militant Sunni groups (non-State actors) would perceive the marriage to be an insult to their religion and target the Applicant as an infidel, in the context of recent suicide bombings; and (iv) the AAT had previously accepted interfaith marriages in Lebanon expose individuals to a real risk of persecution.
eThe Tribunal purported to deal with the Christian marriage claim under the heading "Marriage" but in so doing failed to engage in the required level consideration (i.e., it ignored, misunderstood or overlooked the Christian marriage claim or its essential components or integers), as the Tribunal's reasons disclose contradictory reasoning concerning inter-faith marriage risk, focus on a claim not made, and state (in contradiction to the evidence contained in the Applicant's 20 February 2017 submissions) that there was no information in the referred materials to suggest a person faces a real chance of harm from non-state actors on the basis of mixed marriage.
fThis error was material, and gives rise to jurisdictional error, because there is the possibility that if the Tribunal had truly engaged in the required level of consideration concerning the Christian Marriage claim, it could have come to a different conclusion.
Grounds 2 and 3 were not pressed.
The submissions of counsel for the applicant adopted a slightly different format to the amended application and the particulars in 1 (a), (b) and (c) were treated as one ground, 1.1 – “the pro-Alawi imputed political opinion”, and the particulars in 1 (d), (e) and (f) were treated as another ground, 1.2 – “the Christian marriage claim”. I will adopt the same approach.
Ground 1.1
The applicant’s submissions
The applicant submitted that the Authority failed to adequately consider all the applicant's claims, relying on AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18]:
It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
a. the subject of substantial clearly articulated argument, relying on established facts; or
b. clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(emphasis added)
As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
a) such a finding is not to be made lightly (NABE at [68]);
b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
[37]While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
[38]Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and
e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
The applicant also referred to Plaintiff M1/2021 v Minister for Home affairs (2022) 400 ALR 417 at [25] - [27] to submit that the quality of the required consideration depended upon the "nature, form and content of the representations" and, at least in part, on "the length, clarity and degree of relevance of representations" of the claimant.
The applicant submitted that an integer or essential component of his claim and three facts or representations (called “foundational facts” in the submissions) giving rise to that claim were overlooked or ignored by the Authority, being a claim that he had a well-founded fear of harm because of a pro-Alawi political opinion imputed to him by armed Salafis.
The three foundational facts were said to be as follows:
·A statement made by the applicant at his entry interview on 30 June 2013[1] which included the representation that “… I have a friend in Jabal Mohsen and those extremists in my area do not want me to visit my friend in Jabal Mohsen, they think that if I go to those friends, then that means I am a traitor …”. This was said to constitute a foundational fact that the applicant visited the Alawi area resulting in the extremists considering him to be a traitor.
·A representation in the applicant's statement dated 26 October 2016 provided prior to his protection visa interview on 15 February 2017 that there were often shootings in the streets of Tripoli by armed militias and "… Muslims are expected by Salafi extremists to support other Sunni groups, and oppose Alawites". This was said to constitute a foundational fact that the applicant, as a Sunni Muslim, was expected by the Salafi extremists to oppose Alawite Muslims.
·Claims made in a post-interview submission on 20 February 2017 that the applicant was the subject of a real or imputed political opinion that he was pro-Alawi and opposed to the Sunni jihad campaign resulting from his refusal to fight for the Salafi militias, preaching religious tolerance to other young Sunnis, and associating with individuals from other faiths.
[1] The Court Book and the applicant’s submissions refer to “10 July 2013” but the interview record was signed by the applicant on 30 June 2013.
It was submitted that some of these matters were accepted by the delegate, including that the applicant had occasionally attempted to encourage youths in his home area not to engage with the militant Salafist groups.
It was also submitted by the applicant that the delegate considered it plausible that the applicant would be imputed as being pro-Alawi and in opposition to the militant Sunni campaign in Lebanon. It was said that the delegate accepted as plausible that the applicant was at moderate risk of harm by militant Salafists and the risk of serious harm in his home area was not far-fetched. (It is correct that the delegate accepted these matters. The delegate found, however, that the applicant would be safe from Salafists in Beirut and other areas of Lebanon and therefore did not have a well-founded fear of persecution for the purposes of s. 5J(1) of the Migration Act).
It was submitted that the Authority was required to “consider (a) the foundational facts supporting the Applicant’s Pro-Alawi Imputed Opinion; and (b) whether or not the Applicant did or did not have a Pro-Alawi Imputed Opinion” but failed to do so or, if it did so, failed to engage in an “active intellectual process” with the claim.
The first respondent’s submissions
The first respondent submitted that the Authority expressly referred to the foundational facts asserted by the applicant including noting that Sunni Muslims are expected to support other Muslim groups and to oppose the Alawites, that the applicant would be considered a traitor by the Sunni Muslims and that he had counselled young people against joining the extremist groups.
It was also submitted that the foundational facts referred to by the applicant are not themselves a claim but rather evidence in support of a claim and it was not necessary that the Authority refer to every piece of evidence advanced by the applicant: ETA067 v The Republic of Nauru [2018] HCA 46 at [13].
The first respondent submitted that the Authority expressly identified that the applicant was making a claim to fear persecution because of a real or imputed political opinion as being pro-Alawite and opposed to the Sunni jihad campaign: see the Authority’s summary of the applicant’s claims at paragraph [7]. The first respondent also submitted that the Authority generally dealt with the asserted foundational facts and the claim of the applicant’s imputed political opinion more generally, particularly at paragraphs [27] - [39] of the Authority’s reasons.
In relation to the first foundational fact asserted by the applicant the first respondent submitted that this was dealt with at paragraphs [29] – [31] of the Authority’s reasons. Counsel for the first respondent in oral submissions appeared to concede that his written submission on this point was incorrect. The asserted first foundational fact concerned a claim made by the applicant in his entry interview about a friend or friends living in the Alawite area of Jabal Mohsen and a claim that he would be considered a traitor by the Sunni extremists as a result of such friendship or friendships. In my view, the assertion or representation is somewhat ambiguous about whether the claimed perception that he was a traitor arose from the fact of him visiting his friends in the Alawite region of Jabal Mohsen or simply from friendship with Alawites.
That specific claim about friendships with Alawites from Jabal Mohsen was not repeated by the applicant and was not included in his written statement to the delegate prepared by his migration agent, although in a post-interview submission to the delegate he said that he was targeted by extremists “… because he preached religious tolerance to other young Sunnis, and associated with individuals from other faiths”. No particulars of his friendship or association in Lebanon with people from other faiths was given and the claim was not raised again.
The delegate’s reasons did not refer to a generalised claim about friendship with Alawites or individuals from other faiths. However, the delegate recorded the applicant as having made a written claim that on one occasion he was “… caught by a group of Salafists, exiting Jabal Mohsen. He was trying to learn to drive and was only driving through there to practice his driving… They accused him of passing information to the Alawites in Jabal Mohsen ”.
Contrary to the written submissions of the first respondent it was this latter claim that was referred to by the Authority. However, it is noteworthy that both claims, although differing in detail, assert in substance that the applicant was imputed with disloyalty to the Sunni jihadi cause because of his connection or suspected connection with Alawites in Jabal Mohsen.
In relation to the second foundational fact asserted by the applicant that Sunni Muslims were expected by the Salafis to support other Sunni groups against the Alawites, the first respondent said that this assertion arose in a single sentence at paragraph [17] of the applicant’s protection visa statement dated 26 October 2016. Further, the assertion was expressly recognised by the Authority in its summary of the applicant’s claims at paragraph [7] of its reasons. The first respondent submitted that, in context, the assertion was context or background given by the applicant to his claim to fear harm from Sunni extremists and did not require separate or detailed consideration.
In relation to the third foundational fact asserted by the applicant: refusing to fight for the Salafi militias, preaching religious tolerance to other young Sunnis and associating with individuals from other faiths, the first respondent submitted that the first component was the subject of express consideration by the Authority at paragraph [28] of its reasons and the remaining components were not substantial clearly articulated claims nor did they clearly emerge from the materials.
The first respondent submitted that the applicant’s assertion that he faced persecution from Salafis “… because he preached religious tolerance to other young Sunnis, and associated with individuals from other faiths” was contained in the post-interview submission to the delegate made by the applicant’s migration agent on 20 February 2017 (Case Book 131) and was not raised before or after. The submission purported to record something said by the applicant to the delegate during the interview. The delegate’s reasons of 27 February 2017 recorded the applicant as raising additional claims during the interview including that “He used to talk to young persons in his neighbourhood, including neighbours and relatives and try and convince them not to join the various militia groups operating in the area. As a consequence of this and the fact that he refused to join them, the members of the militia groups considered him an infidel”. The delegate did not record a claim that the applicant preached religious tolerance or associated with individuals of other faiths.
The first respondent submitted that this isolated assertion about preaching religious tolerance was practically the same as the applicant’s claim to have counselled other young Sunnis against joining the extremists, which was the subject of the applicant’s submission to the Authority dated 23 March 2017 and which was considered by the Authority.
The migration agent’s submission that the applicant claimed to have “associated with individuals of other faiths” was not particularised and was not raised elsewhere but would appear to refer to the applicant’s representation in relation to the Alawites in Jabal Mohsen referred to above.
Consideration
The Authority expressly recorded the applicant’s claim to fear harm from Sunni extremists because of an imputed pro-Alawi political opinion. However, the Authority rejected the applicant’s claim that he was suspected of working with or for the Alawites: Authority’s reasons paragraph [30]. More generally the Authority rejected the applicant’s claims to have a well-founded fear of harm from Sunni extremists, notwithstanding that the Authority accepted that the applicant counselled persons against joining the extremists. The Authority noted that the applicant had not claimed to have spoken against these groups’ ideologies or in support of opposing groups or ideologies: Authority’s reasons paragraph [28]. The Authority did not accept that the applicant had an adverse profile with these groups, particularly with the passing of time: Authority’s reasons paragraph [40].
The Authority was required to consider the applicant’s claims where they were the subject of substantial clearly articulated argument or clearly emerged from the materials: AYY17. The quality of the consideration required depended upon the nature, form and content of the relevant representations, their length, clarity and relevance: Plaintiff M1/2021. The Authority was not required to refer to every piece of evidence put forward in support of a claim: ETA067.
The representation described by the applicant as the first foundational fact was made in his entry interview about a friend or friends living in the Alawite area of Jabal Mohsen. He represented that he would be considered a traitor by the Sunni extremists because of such friendship or friendships. This representation was not included in his written statement of claims made before his protection visa interview. In a possible reference to this representation, the applicant’s migration agent in his post-interview submission said that the applicant had “associated with individuals from other faiths”. There was no particularity to the applicant’s original representation, albeit having been made in an entry interview where the applicant was advised to be brief. Later, when the applicant was legally represented and he was required to advance his claims in writing this matter was not mentioned. Further, the post-interview submission was expressed in extremely general terms and did not clearly refer to a claim by the applicant that he maintained friendships with Alawites living in Jabal Mohsen.
The representation was not a separate claim or an essential component or integer of his claim but potentially evidence of his claim that the applicant was imputed with a pro-Alawite political opinion. Having regard to the ambiguity and lack of detail of the original representation, the fact that it was not set out in the applicant’s written claims and was the subject of only very general reference by the applicant’s migration agent in the post-interview submissions, I am not satisfied that the Authority’s failure to expressly consider the representation constituted a failure to consider an essential component of the applicant’s claim. This conclusion is reinforced because the Authority gave detailed consideration to the applicant’s claim, as articulated by him, that he feared harm because of an imputed pro-Alawite political opinion. In a conclusion of encompassing generality the Authority was not satisfied that any of the matters raised by the applicant indicated that he had an adverse profile with the extremists.
In relation to the representation, described as the second foundational fact, that the applicant, as a Sunni Muslim, was expected by the Salafi extremists to oppose Alawite Muslims, I accept the submissions of the first respondent. The representation was contained in a single sentence of the applicant’s protection visa statement and, although it was relevant to the applicant’s claim, it was more in the nature of background, uncontroversial information explaining the attitudes of the warring factions in Tripoli and, as such, did not require separate or detailed consideration.
In relation to the representations, described as the third foundational fact, that the applicant would have imputed to him a pro-Alawite political opinion because of his refusal to fight for the Salafi militias, preaching religious tolerance to other young Sunnis, and associating with individuals from other faiths, I also accept the first respondent’s submissions. The Authority accepted that the applicant refused to fight for the Salafi militias but did not accept that this led to an adverse interest in the applicant by the Salafis: Authority’s reasons paragraphs [28] and [29].
In relation to the representation that the applicant preached religious tolerance to young Sunnis, this was made once, without elaboration, in the applicant’s migration agent’s post-interview submission to the delegate. The representation was not made in the applicant’s written statement of claims or in his submission to the Authority. It was not a clearly articulated argument and, in practical terms, I am satisfied that the representation is not clearly different from his claim that he counselled young people against joining the religious extremists; if the applicant counselled against religious extremism implicitly, at least, he advocated religious tolerance. As such it does not clearly emerge from the materials as an essential component of the claim. The Authority considered the applicant’s claims in relation to counselling young Sunnis against the religious extremists at paragraphs [28] and [29] of its reasons. The representation about associating with people of other faiths has been addressed above.
I am not satisfied that the Authority failed to consider or failed to adequately consider an essential component of the applicant’s claim.
This ground does not succeed.
Ground 1.2
The applicant’s submissions
The applicant married an Australian Christian woman and they have a child. In consequence he claims to have a well-founded fear of persecution or to face harm should they go to Lebanon. The applicant submitted that the Authority in considering this claim overlooked important country information from the Refugee Board of Canada relating to the “social penalties” in Lebanon attached to interfaith marriage, which was referred to in the applicant’s post-interview submission; potential threats from Sunni extremists or “non-state actors”; a decision of the Administrative Appeals Tribunal in another matter; and a risk caused by his given name (which does not obviously appears to be a Muslim one). He submitted that the Authority’s consideration of this claim was inconsistent and illogical.
The first respondent’s submissions
The first respondent submitted that while the Authority referred to DFAT information “… that inter-confessional marriages can attract significant societal and official discrimination and, in some circumstances, violence” other country information indicated that mixed marriages between Christians and Muslims are widespread in Lebanon, as is religious pluralism within family life. The Authority noted that the applicant and his wife were married in a Muslim marriage and the applicant’s family were not troubled by the wife’s background. The first respondent submitted that the Authority obviously preferred this latter country information. It was said that the Refugee Board of Canada information that “social penalties” attached to interfaith marriages did not in any case amount to a claim that the applicant might suffer a relevant form of harm. It was submitted that the Authority explicitly stated that there was no information in the referred materials to suggest that a person faced a real chance of harm from state or non-state actors on the basis of an interfaith marriage, which was an explicit rejection of that claim. The Authority also referred to DFAT’s assessment that there were limited examples of individuals being targeted on the basis of their religion alone and that discrimination and violence were more likely linked to political views.
The first respondent submitted that it was not clear how a tribunal member accepting a risk in relation to a different marriage between a Lebanese Alawite and a Lebanese Sunni, that is, members of opposing factions in a civil war, was relevant to a marriage between the applicant and his wife and in those circumstances it should not be inferred that the Authority overlooked the claim.
The applicant’s written submission that his first name gave rise to a risk of harm was not raised in the amended grounds of review and the first respondent does not appear to have replied to it in written or oral submissions.
Consideration
The reference to “social penalties” in the Refugee Board of Canada materials referred to in the applicant’s post-interview submissions to the delegate does not expressly define the nature of those penalties. There is a general statement that inter-religious marriages are considered to be a “transgression” by Lebanese faith communities because political power is formally divided between such communities and there is a consequent perception that through inter-religious marriage one party is leaving his or her original community and thereby weakening it politically. The materials also note that there is a risk of the children of such marriages being considered “illegitimate”.
I accept the submission of the first respondent that this does not clearly constitute a claim that the applicant, his wife or child might suffer a relevant form of harm. In my view, the Authority’s statement that there is “… no information in the referred materials to suggest a person faces a real chance of harm from state or non-state actors on the basis of mixed marriage …” is to be understood in that way and is accurate.
In relation to the applicant’s related submission that the Authority’s acknowledgement of the statement in the DFAT country information that inter-confessional marriage can attract, “in some circumstances, violence” was inconsistent with the Authority’s statement that there was no information in the referred materials to suggest a real chance of harm from state or non-state actors on the basis of a mixed marriage, neither the applicant nor the first respondent referred to the Authority’s footnote referencing that remark in the DFAT Lebanon country information report 2015. That country information report was not included in the Court Book. I asked both parties if they wished me to consider the footnoted reference to that report. Both stated they did not. In the circumstances, I have not considered the footnoted reference referred to by the Authority. It is unclear therefore in what circumstances the parties to an inter-confessional marriage might attract violence. It is possible, as counsel for the first respondent remarked, that it refers to family hostility to such a marriage, a circumstance not applying in this case.
I am not satisfied that the Authority’s consideration of this material was inconsistent or illogical.
In relation to the applicant’s submission that his first name was relevant to the Authority’s consideration of this claim, the applicant stated in his entry interview that the extremists “… mock my name because it sounds Christian, that disappointed me a lot”. As far as I can see from the materials in the Court Book this representation was not made again by the applicant. I do not see its relevance to the claim of the applicant to fear harm arising from his marriage to an Australian Christian woman. I am not satisfied it is a clearly articulated claim or one that clearly emerged from the materials. I am not satisfied it is an essential component of his claim or claims.
This ground does not succeed.
The application is dismissed. The applicant is to pay the first respondent’s costs in the sum appearing in Schedule 2, Part 2, Division 1 of the Rules, being $7,853.
I certify that the preceding fifty three (53) numbered paragraph is a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 15 March 2023
0
9
0