CZG16 v Minister for Immigration

[2019] FCCA 545

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZG16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 545

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered aspects of the applicant’s claims – whether the Tribunal acted unreasonably or irrationally in not accepting applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.476

First Applicant: CZG16

Second Applicant: CZH16

Third Applicant: CZI16

Fourth Applicant: CZJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2779 of 2016

Judgment of: Judge Manousaridis

Hearing date: 23 February 2018

Date of Last Submission: 23 February 2018

Delivered at: Sydney

Delivered on: 8 March 2019

REPRESENTATION

Counsel for the Applicants: Mr J R Young

Solicitors for the Applicants: Shiba Legal

Counsel for the First Respondent: Mr P Knowles

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2779 of 2016

CZG16

First Applicant

CZH16

Second Applicant

CZH16

Third Applicant

CZI16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are nationals of Lebanon, apply for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Protection (Class XA) visa (Protection visa). The second, third, and fourth applicants applied for a Protection visa as members of the family unit of the first applicant (applicant).

2. It would be convenient to set out the applicant’s claims for protection as set out in a written statement that accompanied his application for a Protection visa.  

Claims for protection

1. In 1994 the applicant volunteered to the General Secretary of the Ministry of Interior. After undergoing four months of training, the applicant was allocated to the General Security office in Beirut at the Secretary General of the Directorate. He was appointed the lowest rank.[1]

   [1] CB83

2. In about 1999 the Secretary General of the Beirut office retired, and the applicant took his place. The position was a sensitive one because, in that position, the applicant saw all secret correspondence. The applicant remained in that position until 2014, when he retired. He retired, however, because he became afraid for his safety.[2]

   [2] CB83

3. The applicant’s fear arose from an incident that occurred “[a]bout 2 months ago”. While the applicant was parking his car a person approached him and asked the applicant to provide him with secret information because the applicant was the only person “allowed to enter the secret page on the computer”, and “no one had access except” the applicant and his supervisor.[3]

   [3] CB83

4. About five days later the same person came back to the applicant when the applicant was leaving the car park. The man offered the applicant any figure the applicant would request in return “for that information”. The applicant refused. The man then said he had been sent by a “fundamental militia group” who wanted “that information”, and they would kill the applicant and his family if the applicant did not provide “such information”. The man also told the applicant he and his family would be killed if the applicant told anyone from the General Security.

5. After these incidents with the man, the applicant considered what he should do. If the applicant informed the General Security, they might not believe him, and they might refer the applicant to a military court and dismiss him from his employment. If, on the other hand, the General Security would believe him, they would change the applicant’s position and, at that point, “the group” would kill the applicant and his family. The applicant decided to resign and leave Lebanon as soon as possible. By that time the applicant and his family had been granted visas to enter Australia.[4]

   [4] CB84

6. The Lebanese government is unable to protect the applicant and his family “because those fanatic militants have infiltrated the Lebanese society and [are] merciless and inhuman”. They are responsible for all explosions at Al Dahieh in Beirut, as well “as the explosion against the Iranian embassy”; and “[t]hey also attempted to kill the director general of the General Security”.[5]

   [5] CB84

Tribunal’s reasons

1. The Tribunal accepted the applicant worked for 20 years in an administrative role in the Surete-Generale (SG), and that he had resigned from that position after he had been granted a visa to enter Australia. The Tribunal otherwise found the applicant’s claims lacked credibility; that the applicant was not a reliable, credible, or truthful witness; and that the applicant fabricated his claims in order to be granted a protection visa.[6] Thus, the Tribunal did not accept the applicant has ever been approached by terrorists requesting information. [7] The Tribunal relied on a number of matters.

   [6] CB208, [33]

   [7] CB208, [34]. The applicant claimed before the delegate and before the Tribunal that he had been approached three times.

2. First, the claim that a terrorist group would choose to elicit information from the applicant in such a public manner, namely, by approaching him three times[8] in a public car park that is used by other SG members, and only four minutes’ walk from the SG office, lacked credibility.[9] Further, given the applicant claimed “they knew everything about him”, it was reasonable to believe the terrorist group could have chosen a much more private location, such as the applicant’s house.[10]

   [8] The applicant claimed before the delegate and before the Tribunal that he had been approached three times.

   [9] CB208-209, [34]

   [10] CB209, [35]

3. Second, the Tribunal found it particularly implausible that the applicant did not report his being approached by terrorists to his superiors. The Tribunal said it was reasonable to believe that someone working in as sensitive an area as the applicant claimed he worked in for as long as he claimed, would be aware of security protocols, and that reporting approaches by any suspicious person, let alone a terrorist, would be a basic element of those protocols.[11]

   [11] CB209, [36]

4. Third, the Tribunal did not accept the applicant failed to report the approaches because he feared being arrested and investigated or referred to a military court and dismissed. Given the applicant was innocent it lacked credibility he would have been arrested for being approached by a terrorist.[12]

   [12] CB209, [37]

5. Fourth, the Tribunal did not accept the applicant failed to report the approaches because he feared he would be relocated and his family would be harmed after the terrorists found out. The Tribunal found it made little sense why the applicant would have been moved from his employment simply for reporting an approach by a member of a terrorist group, and the applicant could not explain how the terrorists would know he had been moved.[13]

   [13] CB209, [38]

6. Fifth, the timing of the approach by the terrorist was “extremely coincidental”. Here the Tribunal referred to the applicant having been granted a visa in May, the applicant being approached after his visa had been granted, and the applicant leaving Lebanon in July. The Tribunal also found it “extremely coincidental” that over the fifteen years that he had worked with the SG he had not been approached once, yet he now claimed he had been approached three times in quick succession.[14]

   [14] CB209, [39]

7. Sixth, the Tribunal relied on two “more minor issues”. One is that in his written statement the applicant claimed he had been approached twice, but before the Tribunal the applicant claimed he had been approached three times.[15] The other matter is that, according to the applicant, he maintained the same routine of driving in his uniform in the same car at the same time to the same car park rather than using shared taxis or buses without his uniform, thus indicating the applicant was not a person who was fearful of terrorists.[16]

   [15] CB209, [41]

   [16] CB209, [41]

8. The Tribunal finally referred to documents the applicant had provided, but the Tribunal gave them little weight, and gave greater weight to the implausibility of the claim.[17]

   [17] CB209, [42]

9. Relevant to the grounds on which the applicant relies is a matter to which the Tribunal referred but on which the Tribunal said it did not rely. That concerns the date on which the applicant became eligible for a pension. The Tribunal noted that because the SG came under the Ministry, the applicant was a public servant. That meant that for Lebanese public servants a “lifetime option becomes available after 20 years’ service” which, the Tribunal said, meant that the applicant would have become eligible to that option in June. The applicant, however, provided a document that showed he became eligible for a pension after 18 years’ service. The Tribunal said:[18]

   I am willing to accept this to be the case, although he indicated that he could have taken the pension at 18 years (which would indicate he didn’t) and that a larger pension accrued at the 20 year mark. That the actions occurred at the 20 year anniversary of his employment remains coincidental, however does not form part of my reason for failing to accept the claim.

   [18] CB209, [40]

Grounds of application and submissions

1. The application contains two grounds, but the applicant does not press ground 1. The applicant also does not press paragraphs (d) and (e) of the particulars to ground 2. The applicant, therefore, relies on the following ground and particulars:

   The Second Respondent made jurisdictional error by making a decision which was arbitrary or unreasonable.

   Particulars

   a.  The Second Respondent made unreasonable or stereotypical assumptions about how a member of a terrorist group would conduct himself.

   b.  The Second Respondent made such use of the issue of timing of the approach as to be unreasonable.

   c.  The Second respondent failed to deal adequately or at all with the totality of reasons given by the Applicant for his failure to repeat the approaches by the member of the suspected terrorist organisation or network.

2. In his written submissions counsel for the applicant submits the Tribunal’s rejection of the applicant’s claims rested on two planks. The first was the applicant’s not reporting to superiors the approaches he claimed occurred (Approaches). The second plank is the timing of the applicant’s claim that he had been approached, namely, after the applicant had been granted a visa to enter Australia.

3. As to the first plank, counsel submits the Tribunal mischaracterised the applicant’s explanation for not reporting the Approaches. The explanation the applicant gave was that the nature of the Approaches led him to fear the terrorists for the harm they might do him and his family. Counsel submits the Tribunal did not consider this aspect of the applicant’s claims, but instead “concentrated exclusively on whether the Applicant knew of the security protocols, and whether he might be investigated if he reported the approaches”.[19] Counsel submits that “[f]raming the question in this way was . . . fundamentally unfair and unreasonable”.[20] As for the second plank, counsel for the applicant submits that the Tribunal’s relying on the time the applicant alleged the Approaches occurred, namely, after he had been granted a visa, and after he resigned from his employment in circumstances where he was entitled to draw a pension, “is beyond reasonable suspicion”;[21] and that the Tribunal’s reliance on these matters is “arbitrary and unjust” because “[c]oincidence as to timing may invite suspicion but it cannot be sufficient”.[22]

   [19] Applicant’s Written Submissions, [19]

   [20] Applicant’s Written Submissions, [19]

   [21] Applicant’s Written Submissions, [16]

   [22] Applicant’s Written Submissions, [17]

4. In oral address counsel for the applicant submitted the Tribunal adopted a form of reasoning which was implicitly unreasonable because it did not consider properly the nature of the explanation the applicant put forward for not reporting the Approaches. Counsel otherwise repeated the substance of the submissions set out in his written submissions, noting that these covered paragraphs (b) and (c) of the particulars to ground 2. Counsel for the applicant also made submissions in support of paragraph (a) of the particulars to ground 2.

5. In his written submissions, counsel for the Minister submitted that the Tribunal’s reasoning was rational, and its findings were open on the evidence before it.[23] Counsel submits it was neither irrational nor unreasonable for the Tribunal to find that a terrorist militia member would be unlikely to approach or threaten a security official in an open public car park near the headquarters of a security agency on three occasions within a short period, noting that common sense would suggest that such an approach would more likely occur in a less public setting.[24] Counsel further submits the Tribunal did not misconstrue the applicant’s evidence. The applicant gave two reasons why he did not report the Approaches to the security agency, and the Tribunal addressed those reasons, as well as questioning the applicant about the genuineness of his fear that he would be harmed because he would be transferred in circumstances where the Tribunal found the applicant could not explain how the militia would become aware of the transfer.[25] Finally, counsel for the Minister submits the Tribunal made no error in the manner on which it relied on the time the applicant claimed a terrorist member had approached him.[26]

   [23] First Respondent’s Outline of Submissions, [14]

   [24] First Respondent’s Outline of Submissions, [15]

   [25] First Respondent’s Outline of Submissions, [16]

   [26] First Respondent’s Outline of Submissions, [17]

6. From these competing submissions, and the particulars to ground 2 on which the applicant relies, the following questions arise:

   a)Did the Tribunal fail to consider, or properly consider, the explanation the applicant gave for not reporting the Approaches?

   b)Did the Tribunal act unreasonably or irrationally by relying on the time at which the applicant claimed the Approaches occurred as a reason for doubting the credibility of the applicant’s claim?

   c)Did the Tribunal rely on an unreasonable assumption about how a terrorist would conduct himself?

   d)Did the Tribunal otherwise fail to deal with the totality of the reasons the applicant gave for not reporting the Approaches?

Did the Tribunal fail to consider applicant’s explanation for not reporting the Approaches?

1. When assessing whether the Tribunal considered the applicant’s claim that he did not report the Approaches because he was afraid to do so, it is important to appreciate the relevance of the reason or reasons the applicant gave for not reporting the Approaches to the assessment of the applicant’s claims that he was approached by a member of a terrorist group.

2. If, as the applicant claimed, he had been approached by a person who was a member of a terrorist group, it was relevant to assessing the credibility of that claim to consider whether the applicant reported the Approaches. That is so because it is reasonable to suppose that a person in the position of the applicant who had been approached by a member of a terrorist group would report it. In those circumstances, an unexplained failure by the applicant to report the Approaches would be a ground for doubting the credibility of the claim. The applicant, however, gave an explanation for his not reporting the Approaches. He said he did not report the Approaches because he was afraid he would either not be believed, in which case he feared he would be dismissed from his employment and be referred to a military court, or he would be believed, in which case his employer would change his position and, at that point, the terrorist group would kill the applicant and his family. If this explanation were accepted by the Tribunal, then the applicant’s not having reported the Approaches would not have been available as a reason for doubting the credibility of the applicant’s claims that he had been approached by a member of a terrorist group.

3. The Tribunal addressed each aspect of the applicant’s claims. It considered the relevance of the applicant’s not having reported the Approaches. It was of the view that the applicant’s not reporting the Approaches was a reason that undermined the credibility of the applicant’s claim that he was approached. The Tribunal, however, was aware that the applicant had given an explanation that, if accepted, was capable of removing what would otherwise be available as a reason for not accepting the credibility of the applicant’s claim that he had been approached by a member of a terrorist group. The Tribunal, however, did not accept the explanation on the ground that the explanation itself lacked credibility. That is, the Tribunal found the applicant’s fear that he would be arrested and referred to a military court lacked credibility, given the applicant was innocent; and that the applicant’s fear that, if he were believed, he and his family would be killed also lacked credibility because it made little sense why the applicant would have been moved from his employment simply for reporting an approach by a member of a terrorist group, and the applicant could not in any event explain how the terrorists would know he had been moved.

4. For these reasons I do not accept the applicant’s counsel’s submissions that the Tribunal did not consider or properly consider the explanations the applicant gave for not reporting the Approaches, or that the Tribunal concentrated exclusively on whether the applicant knew of the security protocols, and whether he might be investigated if he reported the Approaches.

Unreasonable or irrational to rely on timing of Approaches?

1. Counsel for the applicant accepts that “[c]oincidence as to timing may invite suspicion”, but he submits that “it cannot be sufficient”.[27] To the extent counsel intends to submit that the Tribunal relied only on the time the applicant claimed the Approaches occurred, I would not accept the submission. The Tribunal did not rely only on the time the applicant claimed the Approaches occurred in finding the applicant’s claims lacked credibility. As I have already set out, the Tribunal relied on the applicant’s not having reported the Approaches (rejecting the applicant’s explanation for not reporting the Approaches) and, to a lesser extent, the applicant having stated in his written statement that he had been approached twice but later claiming he had been approached three times, and the applicant maintaining his usual routine after he had first been approached.

   [27] Applicant’s Written Submissions, [17]

2. Counsel for the applicant might also be taken to submit it was unreasonable for the Tribunal to rely on the timing of the approaches as a reason for doubting the credibility of the applicant’s claim. Counsel submitted that although “[t]iming issues may always be considered”, the applicant “could easily have made his stay more apparently plausible (if it was invented) if he claimed that the approaches happened before May and that he applied for the visitor’s visas to get the family out of Lebanon”.[28] There are a number of matters to note about this submission. First, it does not identify how the applicant’s claim could have been rendered more plausible had it been (falsely) claimed that the applicant had resigned before he applied for the visa. The applicant’s claim that it was his fear that accounted for his applying for a visitor visa would have had to deal with the consistency of such asserted fear with the time it had taken the applicant to apply for and be granted the visitor visa. It would also have had to deal with the objective fact of the time he resigned from his employment. Second, and more importantly, it is not open to claim as unreasonable the Tribunal’s reliance on a matter it considered to be implausible on the ground that a more plausible case could have been fabricated by the applicant.

   [28] Applicant’s Written Submissions, [16]

1. In my opinion it was reasonably open to the Tribunal to rely on the time the applicant claimed he had been approached by a member of a terrorist group as a reason for doubting the credibility of the applicant’s claim; and it was reasonably open because it provided a rational basis for finding that the applicant did not leave Lebanon because of his fear, as he claimed, but that the applicant fabricated his claim to fear harm because he had already decided to travel to Australia with a view to living in Australia.

Reliance or unreasonable reliance on how a terrorist would act?

1. This part of the applicant’s case goes no further than assertion – the Tribunal relied on an unreasonable assumption about how a terrorist would conduct himself. Counsel however, does not explain why the assumption is unreasonable. In my opinion, the Tribunal was entitled to rely on assumptions about how a person who claimed to be a member of a terrorist group would conduct himself if he wanted to obtain secret information from a person in the position of the applicant. It was reasonably open to the Tribunal to find that it was not plausible that such person would seek to obtain such information in the public and in the repeated manner in which the applicant claimed the person who had approached him sought information from him.

Failure to deal with the totality of the reasons the applicant gave for not reporting the Approaches?

1. The Tribunal did consider the reasons the applicant gave for not reporting the Approaches. As I have already concluded, the Tribunal found the applicant’s fear that he would be arrested and referred to a military court lacked credibility, given the applicant was innocent; and that the applicant’s fear that, if he were believed, he and his family would be killed also lacked credibility because it made little sense why the applicant would have been moved from his employment simply for reporting an approach by a member of a terrorist group, and the applicant could not explain how the terrorists would know he had been moved.

Eligibility for pension

1. In his written submissions, counsel submitted that the Tribunal’s consideration of the potential relevance of the applicant’s becoming entitled to a pension at the time of his resignation “is particularly troubling”.[29] The clue to the reason why counsel submitted the Tribunal’s consideration was “particularly troubling” is that the Tribunal stated, “somewhat risibly”, that the timing of the applicant’s entitlement to a pension did not form part of the Tribunal’s reasons. I do not accept counsel’s characterisation of the Tribunal’s statement; and I otherwise do not accept counsel’s submission that the Tribunal’s consideration of this question was “troubling”.

   [29] Applicant’s Written Submissions, [14]

2. During oral address I asked counsel whether he intended to submit that I was not to believe the Tribunal’s statement that the timing of the applicant’s entitlement to a pension did not form part of the Tribunal’s reasons. Counsel said that he did not make that submission. Counsel submitted, however, that the Tribunal nevertheless relied on the timing of the applicant’s entitlement to a pension. Counsel relied on the Tribunal’s stating in paragraph 34 of its reasons that the applicant’s claim is “both implausible and the timing of the incident so coincidental as to make the whole account lack credibility”.[30] This passage, however, must be read with the Tribunal’s reasons as a whole. The Tribunal uses the word “coincidental” in relation to the time the applicant claims he was approached by a person who was a member of a terrorist group. Given the Tribunal stated the timing of the applicant’s entitlement to a pension did not form part of the Tribunal’s reasons, it is clear that in paragraph 34 of its reasons for decision the Tribunal used the word “coincidental” to refer to the time the applicant claimed he was approached by a person who was a member of a terrorist group, and not to the time at which the applicant became entitled to a pension.

   [30] CB208, [34]

Conclusion and disposition

1. The applicant has not succeeded on the grounds and submissions on which he relies. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs when I pronounce my order.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 8 March 2019