CZS16 v Minister for Immigration
[2019] FCCA 3224
•11 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZS16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3224 |
| Catchwords: MIGRATION – Protection (Class XA) Visa – review of decision by the Administrative Appeals Tribunal (AAT) – where the AAT affirmed decision of the delegate – no basis for Applicant’s claim that the AAT did not correctly apply ‘real chance’ test – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.65, 430, 476 Federal Circuit Court Rules 2001 (Cth) Schedule 1, Part 3, Division 1 |
| Cases cited: Abebe vCommonwealth of Australia (1999) 197 CLR 510. |
| Applicant: | CZS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2235 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 24 May 2018 |
| Date of Last Submission: | 24 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 11 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Drent |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the Respondents: | Mr Petrie |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The Application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2235 of 2016
| CZS16 |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
and
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a national of Lebanon who arrived in Australia on 27 May 2012 with his daughter. At the time of their arrival in Australia the Applicant’s daughter held a student visa, while the Applicant held a sponsored family visitor visa. On 24 August 2012, the Applicant, applied for a Protection (Class XA) visa (Visa) under s.65 of the Migration Act 1958 (Cth) (Act)[1]. The Applicant included his daughter in his application for a Visa.
[1] Court Book (CB) 13-45
Background
On 23 October 2012 a delegate of the First Respondent refused to grant the Visa (Delegate’s Decision)[2]. The Applicant and his daughter then applied to the Refugee Review Tribunal (as it was then known) for a review of the Delegate’s Decision. On 8 April 2014 the Refugee Review Tribunal affirmed the Delegate’s Decision (Refugee Review Tribunal Decision)[3].
[2] CB 117-136.
[3] CB 261-279.
The Applicant and his daughter appealed the Refugee Review Tribunal Decision to the Federal Circuit Court. On 16 November 2015 the Federal Circuit Court ordered by consent that the Refugee Review Tribunal Decision be quashed and that the matter be remitted to the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (Tribunal) and determined according to law[4]. The Statement of Matters Justifying the Making of an Order by Consent filed in the Federal Circuit Court on behalf of the Applicant and the First Respondent (Minister), stated that the proposed consent order was justified because the Refugee Review Tribunal:
[…] misconstrued the applicant’s claim of fear of harm on account of his brother’s involvement in the Future Movement and failed to consider that claim as a result[5].
[4] CB 280-281.
[5] CB 282.
On 10 March 2016 the Tribunal was advised that the Applicant and the Applicant’s daughter would henceforth be separately represented and that they requested separate hearings. The Applicant’s daughter then applied for a protection visa in her own right[6].
[6] CB 300-304.
The Applicant appeared before the Tribunal on 11 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from one of the Applicant’s brothers who lives in Australia. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Applicant was represented in relation to the review by his registered migration agent who also attended the hearing[7].
[7] Tribunal Decision Record, at [44], CB 477.
The Applicant claimed to be a Sunni Muslim living in Halba, who was in general danger from the Shia and Alawite groups in Lebanon. The Applicant also made specific claims. For present purposes the only relevant claims are those regarding his family’s support of, and involvement in, the ‘Future Movement’ and instances in which he and his family members were assaulted[8].
[8] Applicant's Submissions, at [9].
On 12 September 2016 the Tribunal affirmed the Delegate’s Decision to refuse to grant the Visa to the Applicant (Tribunal Decision)[9].
[9] CB 467-494.
In the Tribunal Decision the following findings were made regarding the assaults on the Applicant and his family members:
a)In relation to historical assaults and injuries to the Applicant and his family the Tribunal accepted:
i)The Applicant’s cousin was shot in 1983;
ii)The Applicant was shot over a land dispute in 1985;
iii)A relative who drove a taxi in Beirut was shot in 2010;
iv)The Applicant was assaulted when his car broke down during a funeral for two Sunni sheiks in May 2012[10];
[10] Tribunal Decision at [108], CB 488
v)There was a break-in at the Applicant’s family home, consistent with the statement by the Applicant’s wife to the police, the Applicant’s wife was not threatened or assaulted[11];
[11] Tribunal Decision at [109], CB 488.
vi)Two of the Applicant’s sons were assaulted by unknown people in 2014 and 2015[12];
[12] Tribunal Decision at [110] and [111], CB 488.
vii)The Applicant’s younger son was injured by a heavy falling object in 2016 while he was working[13].
[13] Tribunal Decision at [112], CB 488.
b)The Tribunal found that three of the Applicant’s brothers continued to reside in Halba and that his brother, who had been the most enthusiastic supporter of the Future Movement and was a member of the Future Movement, continued to live there without being harmed[14].
[14] Tribunal Decision at [114]-[116].
c)In relation to the Future Movement generally:
i)The Tribunal accepted that the Applicant’s family all support the Future Movement and that, apart from his brother who was a member of the Future Movement[15], their support was similar to that of the Applicant’s support[16];
[15] Tribunal Decision at [20], CB 472.
[16] Tribunal Decision at [121], CB 490.
ii)The Tribunal found that the Applicant had provided limited support to the Future Movement in the past and that he would not attend meetings in the future[17];
[17] Tribunal Decision at [122], CB 490.
iii)The Tribunal accepted that the brother who was a member of the Future Movement was more active and had a higher profile in the Future Movement, but that he was less active now and was no longer employed by the organisation and continued to live in Halba with his wife and children[18];
[18] Tribunal Decision at [121], CB 490.
iv)The Tribunal noted that the Applicant had not claimed that his brother who was a member of the Future Movement had been harmed due to his previous political activity and his known political opinion[19];
[19] Tribunal Decision at [121], CB 490.
v)The Tribunal did not accept that the Applicant or his family had been harmed in the past due to his family’s political opinion or his brother’s political activity or opinion[20].
[20] Tribunal Decision at [121], CB 490.
d)In relation to the 2008 assault on the Applicant’s brother-in-law:
i)The Tribunal accepted that the Applicant’s brother-in-law was caught up in violence and was shot in the leg in 2008, and that the Applicant’s car may have been left in the vicinity after his brother-in-law was taken to hospital[21];
[21] Tribunal Decision at [117], CB 489.
ii)The Tribunal noted that while this incident occurred in 2008, the Applicant did not leave Lebanon until 2012[22];
iii)The Tribunal also noted that the Syrian Social Nationalist Party (SSNP) re-established an office in Halba in 2010 or 2011. The Tribunal observed that the SSNP therefore had the opportunity to harm the Applicant prior to his departure in 2012, but had not done so. Accordingly the Tribunal did not accept that the Applicant’s home had been broken into or that his children were attacked because the SSNP suspected the Applicant was involved in the 2008 incident. The Tribunal further did not accept that the SSNP or the Hezbollah would be looking for the Applicant or would have any adverse interest in him or his family[23].
e)In relation to the Applicant’s status as a taxi driver, the Tribunal accepted that the Applicant:
i)Drove a taxi for 10 years in Lebanon;
ii)May have been abused in the past, but did not accept that the abuse amounted to serious harm or that the Applicant would face serious harm from Alawites, Shias, Hezbollah or Syrian agents in the future as a result of driving a taxi[24].
f)Four separate incidents had occurred to the Applicant or his family in 2008, 2010, 2012 and 2014 involving assaults that had a sectarian dimension[25].
g)In relation to the finding on a real chance of harm, it was for the reasons summarised in sub-paragraphs 8(a) to (f) that the Tribunal did not accept that there would be a real chance of the Applicant suffering serious harm in the reasonably foreseeable future by reason of his imputed political opinion, his Sunni religion, or his relationship with his brother or his other family members[26].
[22] Tribunal Decision at [119], CB 490.
[23] Tribunal Decision at [119]-[120], CB 490.
[24] Tribunal Decision at [124], CB 491.
[25] Tribunal Decision at [117], [108], [124] and [111], CB 488, 489 and 491.
[26] Tribunal Decision at [123], [130]-[137], CB 490 and 492 to 493.
Federal Circuit Court Proceeding
On 13 October 2016 the Applicant applied to the Court for judicial review of the Tribunal Decision pursuant to s.476(1) of the Act.
On 17 May 2018 the Court made orders that the Applicant file and serve an amended application and submissions by 17 May 2018. On 17 May 2018 the Applicant filed an amended application (Amended Application) and Submissions (Applicant’s Submissions). In the Amended Application the Applicant advanced a single ground of review with four ‘particulars of error’ pleaded. During the hearing Counsel for the Applicant abandoned the fourth particular, being:
The tribunal failed to properly consider relevant evidence[27].
[27] Transcript T 3:43-46 and T 12:36-13:23.
The ground of application in the Amended Application was therefore articulated as follows:
The decision of the Tribunal was affected by error of law that led to a constructive error in the exercise of jurisdiction.
Particulars of error
i.The Tribunal erred in failing to conclude that the Applicant faced a “real chance” of persecution.
ii.The Tribunal erred by failing to provide sufficient, objective reasons as to how it reached its conclusion that there was no “real chance” of persecution.
iii.The Tribunal erred by failing to consider that it may have been wrong that incidents that occurred in 2013 and 2015 did not have a Convention nexus.
On 22 May 2018 the Minister filed an Outline of Submissions (Minister’s Submissions).
Applicant’s Submissions
The Applicant’s Counsel described the ‘real chance’ test as follows:
The ‘real chance’ test requires a consideration that a fear of persecution is one that is not remote or insubstantial or a far- fetched possibility. A well-founded fear of persecution on possible return to a refugee’s country of nationality can occur where the possibility of the persecution occurring is below fifty per cent: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. This interpretation serves to fulfil recognition of persons who have a legitimate fear of persecution if returned to their country of origin. The test is an objective one[28].
[28] Applicant’s Submissions, at [14].
The Applicant contended that the Tribunal had failed to correctly apply the ‘real chance’ test. The Applicant’s Counsel relied on three particulars in relation to the single ground of review.
First Particular
That the Tribunal misunderstood the real chance test and its application of the facts and that the Tribunal:
[…] did not adequately weigh or consider in an objective sense, whether the likelihood of (one or more) of the events increased the possibility of a real chance of persecution in the future on return: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 575[29].
[29] Applicant’s Submission, at [15].
Counsel for the Applicant relied upon the following from Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259:
The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event[30].
[30] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 281.
Counsel submitted that the Tribunal failed to engage in the weighing and consideration process in its conclusions and instead referred to individual events. In particular Counsel was critical of paragraph 136 of the Tribunal Decision which states:
Having considered all the evidence before it, and the applicant’s personal circumstances both individually and cumulatively, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm if he returns to Lebanon now or in the reasonably foreseeable future for the reasons claimed, or for any other reason.
Counsel for the Applicant submitted that this was erroneous because it wasn’t apparent that there was analysis or weighing of the separate factors in relation to the real chance test against the four separate incidents of sectarian violence (referred to in paragraph 8(f)), or incidents that were attributed to sectarian factors[31].
[31] Transcript T 6:9-37.
It was therefore contended that the Tribunal was in error on the basis of this ground.
Second Particular
The second particular of the ground advanced by Counsel for the Applicant was that the Tribunal erred by failing to provide sufficient objective reasons as to how it reached its conclusion that there was no real chance of persecution.
It was submitted that the Tribunal accepted that there were incidents in 2008, 2010, 2012 and 2014 that were motivated by sectarian animosity. It also accepted that the incidents in 2013 and 2015 occurred but there was insufficient proof of a Convention nexus. The Applicant’s Counsel contended that the Tribunal should have considered:
[…] whether the consistent and repeated nature of the events formed an objective basis for fear of harm that that could sustain a conclusion of supporting a decision that the real chance test had or had not been met[32].
[32] Applicant’s Submissions, at [16].
Counsel submitted that the Tribunal had failed to engage in an appropriate process to reach a state of satisfaction as to whether the real chance test had been met[33]. Counsel relied upon the judgment of Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where His Honour said:
But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression that has been explained and applied in Australia […] If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring[34].
[33] Transcript T 7:14-16.
[34] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 389.
Counsel also relied upon the decision Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 281, referred to in paragraph 16, in relation to this ground.
It was submitted by Counsel that whilst the real chance test was not a statistical exercise or a balancing of probabilities, in this case four incidents in seven years may well lead someone to ask whether that was enough to meet the real chance test. It was submitted that given the accepted events occurring from 2008 to 2014, it was a flawed outcome for the Tribunal not to have considered the possibility that the events in 2015 might have been motivated by sectarian violence and hence adding to the real chance of further persecution[35].
[35] Transcript T 7:22-35.
It was therefore contended that the Tribunal was in error on the basis of this ground.
Third Particular
The third particular of the ground advanced by Counsel for the Applicant was that the Tribunal erred by failing to consider that it may have been wrong that the incidents that occurred in 2013 and 2015 did not have a Convention nexus.
Counsel submitted that there were two separate considerations to this ground. The first consideration was that the Applicant had provided the best evidence that he could in relation to the 2013 and 2015 incidents and was unable to provide any further evidence as to the identity of the perpetrators. It was submitted that the Tribunal accepted that the incidents occurred in 2008, 2010, 2012 and 2014 were sectarian, however there was no consideration of the possibility that the 2013 and the 2015 events were of a similar nature[36]. It was also submitted that there were no issues in relation to the credibility of the evidence of the Applicant or his brother. In such circumstances the evidentiary burden should not have weighed against the Applicant in relation to the events in 2013 and 2015 and the following finding at paragraph 113 of the Tribunal’s Decision should not have been made:
While the Tribunal accepts the applicant remains suspicious and concerned that these incidents are connected and have been coordinated and perpetrated by people who have targeted the applicant’s family, the Tribunal is not satisfied this is the case.
[36] Applicant’s Submissions, [18].
Counsel submitted that the failure to make out an affirmative case in relation to the 2013 and the 2015 events most likely led to the failing of the case before the Tribunal[37]. Counsel relied on N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 where the Full Court of the Federal Court said:
As Gleeson CJ and McHugh J stated in Abebe v Commonwealth (1999) 197) CLR 510 at 544, [83]; 55 ALD 1 at 25; 162 ALR 1 at 25, the fact that an applicant:
[…] might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that [the] claim for refugee status must fail. As Guo makes clear, even if the tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well founded fear of persecution. The tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well founded fear of future persecution [Footnotes omitted][38].
[37] Transcript T 9:43-44.
[38] N1202/01A V Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21, [46]
The second consideration in relation to the third particular was that in paragraph 113 of the Tribunal Decision the Tribunal indicated that it would provide further reasons. Counsel submitted that the Tribunal failed to specifically refer back to the 2013 and 2015 incidents. It was submitted that the Tribunal failed to make any affirmative finding, with the consequence being that it should have considered the possibility that its conclusion was wrong.
Counsel submitted that the Tribunal should have applied the “what if I am wrong” test in relation to the 2013 and the 2015 events not having a Convention nexus. Counsel referred to Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 where the Federal Court distilled a number of principles regarding decision making in migration cases[39]. Counsel for the Applicant relied on the following:
[…] there are circumstances where the RRT must take into account the possibility that the alleged past events occurred even though it finds that those events probably did not occur[40].
Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution[41].
[39] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [60]-[67] Sackville J (with whom North J agreed).
[40] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [60].
[41] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [62].
The “what if I am wrong” test requires the decision-maker to:
[…] take account of the chance that past events might have occurred, even though the decision-maker thinks they probably did not[42].
[42] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [63].
Counsel also referred to the following in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220:
In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.[43]
[43] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, at [67].
Counsel submitted that as the Tribunal failed to consider whether it could have been incorrect about the 2013 and the 2015 events not having a Convention nexus was an error.
Counsel submitted that the failure to properly consider and apply the real chance test in the context of satisfying itself that the Applicant had a well -founded fear of persecution under s.36(2)(a) of the Act, amounted to an error of law that led to a constructive error in the exercise of jurisdiction: Craig v South Australia (1995) 184 CLR 163; Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317.
Minister’s Submissions
First Particular
It was submitted that there was nothing in the Tribunal’s Decision that suggested that it misconceived the real chance test articulated in Chan v Minister for Immigration and Ethnic Affairs (1989)169 CLR 379, 413.
Counsel submitted that there was no basis for the contention that the Tribunal had failed to weigh the evidence in an ‘objective sense’. Counsel submitted that the Tribunal’s reasons were to be read fairly and given a beneficial construction. He relied generally on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, where the Court said (Brennan CJ, Toohey, McHugh and Gummow JJ):
[…] the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed[44].
[44] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
Counsel submitted that the Tribunal did not need to make findings on particular questions of fact that might be considered objectively material. The Tribunal’s task was to consider matters that it considers to be material, provided that it doesn’t otherwise fall into jurisdictional error[45].
[45] Transcript T18:20-25.
Counsel referred to s.430 of the Act which sets out the Tribunal’s requirement to provide written reasons.
Section 430 of the Act provides:
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application--indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Counsel relied on the decision of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407. In that case McHugh J referred to with approval the following passage from Addo v Minister for Immigration and Multicultural Affairs [1999] FC 940 as follows:
It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which is made[46].
[46] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407, [64].
McHugh J also said:
[…] it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal[47].
[47] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham, (2000) 168 ALR 407, [65].
Counsel also relied on the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 in support of the proposition that the Tribunal need only make findings on matters that it considers to be material. In particular the Tribunal is not required to make findings on particular questions of fact that might be considered objectively material[48].
[48] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [5], [9]-[10] Gleeson CJ; [68] McHugh, Gummow and Hayne JJ; [33]-[34] Gaudron J.
Counsel submitted that it was not the role of the Court on judicial review to question the weight that the Tribunal should accord to particular evidence. It was submitted that it was well established that, absent any failure to consider a claim or any procedural irregularity, the weight to be given to evidence is a matter for the Tribunal alone: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, 41; Abebe vCommonwealth of Australia (1999) 197 CLR 510, 580; Minister for Immigration and Citizenship v SZJSS (2010) 238 CLR 164, [33]. Therefore it was submitted that to the extent that the Applicant complained about the weight accorded by the Tribunal to the Applicant’s evidence, this argument should be rejected.
Second Particular
In response to the second particular, it was submitted that this ground constituted impermissible merits review. Counsel referred to the Tribunal’s fundamental obligation under s.65 of the Act. Section 65(1) provides that the Tribunal, after considering a valid application for a visa, if it is satisfied in relation to each of the matters in s.65(1)(a) (i) to (iv), it is to grant the visa. If the Tribunal is not so satisfied, s.65(1)(b) requires the Tribunal to refuse to grant the visa. It is not a discretionary provision, it is a mandatory provision. Counsel for the Minister relied upon Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 where the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) said:
Thus, although the Minister’s satisfaction (or, in the case of the Tribunal, its satisfaction) is still required, s 65(1) imposes an obligation to grant a visa, as distinct from conferring a power involving the exercise of a discretion. The satisfaction that is required is a component of the condition precedent to the discharge of that obligation: Minister for Immigration and ethnic Affairs v Eshetu (1999) 197 CLR 611[49].
[49] Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, [41].
Counsel also relied on Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, where the Full Court of the Federal Court said (Black CJ, Sundberg and Bennett JJ):
The delegate is bound by s 65 of the Act, as it applies to a protection visa, to grant the visa if satisfied that the applicant is a person to whom protection obligations are owed. In the absence of that satisfaction, the section requires the delegate to reject the application.
[…]
As s 65 and Wu Shan Liang make clear, the section requires a visa to be rejected in the absence of a positive finding of satisfaction. It does not require the visa to be granted in the absence of an adverse finding. There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction[50].
[50] Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, [16]-[17].
Counsel submitted that the Applicant’s submissions in relation to the second particular should be rejected.
Third Particular
In response to the third particular, the Counsel for Minister rejected the contention that the Tribunal failed to consider the possibility that the 2013 and the 2015 events were of a similar nature and thereby had a sectarian dimension.
Counsel submitted that paragraph 12 of the Tribunal Decision recorded that the Refugee Review Tribunal Decision recorded that the Applicant made claims at the hearing on 9 July 2013 that included:
[…] that Syrians or people associated with the Syrian government broke into/burgled the family home in June 2013; that unknown men assaulted and/or tried to kill the applicant’s wife[51].
[51] Tribunal Decision at [12], CB 471.
Further the Tribunal stated the following in relation to the break in at the family home at paragraph 109 of the Tribunal Decision:
During the hearing the Tribunal raised its concerns about the inconsistencies relating to the break in at the applicant’s wife’s house in the documents provided to the department. While the Police report and the statement written by the applicant wife makes no mention of threats or assaults, the letters from the Mayor claims the wife was assaulted. The Tribunal accepts that the applicant’s wife’s home was broken into and a window was broken in June 2013. The Tribunal prefers the statement made by the applicant’s wife attached to the police report which indicates she was not at home at the time and does not raise any claims of being threatened or assaulted[52].
[52] Tribunal Decision, at [109], CB 488.
Counsel submitted that this was evidence that the Tribunal was considering the nature of the Applicant’s claim. Counsel then submitted that the 2013 incident could not be divorced from the Applicant’s other complaints, as is illustrated in paragraph 120 of the Tribunal Decision which included the following:
The Tribunal does not accept the applicant’s home was broken into or that his children were attacked because the SSNP or its supporters or family members of those killed in the incident in 2008 or anyone else suspected the applicant was involved in the 2008 incident. The Tribunal does not accept the SSNP or Hezbollah or their members or supporters or family members are looking for the applicant or have any adverse interest in the applicant or his family[53].
[53] Tribunal Decision at [120], CB 490.
Counsel also referred to paragraph 130 of the Tribunal Decision where the Tribunal found the Applicant’s family had not been harmed on the basis of their religion or their support of the Future Movement. Further, the Tribunal made an affirmative finding in relation to the 2013 incident. The Tribunal considered the house break in and attacks on the children to be random isolated acts not targeted at the Applicant or his family specifically[54].
[54] Tribunal Decision at [130], CB 492.
In relation to the 2015 incident, the Applicant gave evidence that he did not know who attacked his son. The Tribunal referred to this incident which took place on 9 June 2015 in paragraph 30 of the Tribunal Decision as follows:
He was informed by the applicant’s wife that unknown people captured [the Applicant’s younger son] in Halba and poured petrol on him and set him on fire. The Applicant’s wife stated [the Applicant’s younger son] did not know who held him and who did this to him[55].
[55] Tribunal Decision at [30], CB 474.
Counsel referred to paragraph 110 of the Tribunal Decision where the Tribunal also accepted that the Applicant’s elder son was attacked by unknown people and hit with a car in May 2015. At paragraph 110 the Tribunal expressly considered the Applicant’s claim that, although he did not know who attacked his son, he suspected it was Shia and Alawi Muslims or other Syrian people.
Counsel submitted that the Tribunal therefore made specific findings in relation to the 2013 and 2015 incidents. It was submitted that it was significant that the Tribunal did not deal with these claims in isolation and dealt with them in context. As a result consideration of the 2013 and 2015 incidents could not be divorced from the way in which the Tribunal dealt with the Applicant’s other claims.
Further in relation to the weight to be attributed to the evidence on judicial review, Counsel submitted that this was an attempt at impermissible merits review. Counsel relied on previous submissions in relation to the weight of the evidence, as set out in paragraphs 40 to 43 above.
In response to the Applicant’s submission that the Tribunal failed to consider that it may have been wrong that the incidents that occurred in 2013 and 2015 did not have a Convention nexus and misconceived the real chance test, Counsel relied upon the facts and reasoning in Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) CLR 559; [1997] HCA 22. In that case, the plurality was critical of the court below for finding that the Tribunal should have considered the possibility that it was wrong, in circumstances where the Tribunal itself had no doubt[56]. Their Honours said:
With respect to his Honour, this criticism of the Tribunal's reasons is wrong. For the reasons that we have given, the Tribunal was entitled to weigh the material before it and make findings before it engaged "in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded." Moreover, given the strength of some of the Tribunal's findings […] the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.
It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong (emphasis added).
[56] Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) CLR 559; [1997] HCA 22, 575-576.
Counsel also relied on Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 and in particular the principle referred to in paragraph 32 above.
Counsel submitted that in this case the Tribunal made definite findings. The Tribunal had not expressed doubt in its own mind, it had expressed doubt about what the Applicant had claimed. The Tribunal had not expressed any doubt about its level of satisfaction under s.65 of the Act. The Tribunal had no doubt regarding its findings and was not required to consider it was wrong.
Counsel submitted that the Applicant’s submissions in relation to the third particular should be rejected.
Counsel concluded that there was no evidence in the Tribunal Decision that the Tribunal had misunderstood the real chance test and that the Amended Application should be dismissed with costs. Costs were sought in accordance with Item 3 of Division 1, Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth).
Consideration
In relation to the first particular, I accept the submissions made by Counsel for the Minister which are discussed in paragraphs 35 to 43 and the cases referred to therein. The Tribunal need only make findings on matters that it considers to be material[57] and it is not required to make findings on questions of fact that might be considered objectively material[58]. The weight to be given to evidence is a matter for the Tribunal alone[59].
[57] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[58] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [5], [9]-[10] Gleeson CJ; [68] McHugh, Gummow and Hayne JJ; [33]-[34] Gaudron J.
[59] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985) 162 CLR 24, 41; Abebe vCommonwealth of Australia (1999) 197 CLR 510, 580; Minister for Immigration and Citizenship v SZJSS (2010) 238 CLR 164, [33].
The first particular seeks impermissible merits review and is therefore rejected.
In relation to the second particular, I accept the submissions made by Counsel for the Minister which are discussed at paragraphs 44 to 46 and the cases referred to therein. The Applicant is requesting the Court to engage in impermissible merits review. I especially note the words of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, referred to in paragraph 45:
There are many cases showing that findings of fact are not necessarily required to support a state of non-satisfaction[60].
[60] Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73, [16]-[17].
The second particular also seeks impermissible merits review and is therefore rejected.
In relation to the third particular, I do not accept the contention that the Tribunal failed to consider the possibility that the 2013 and 2015 events were of a similar nature and thereby had a sectarian dimension. I accept the submissions of Counsel for the Minister which are discussed in paragraphs 47 to 55. The Tribunal dealt with the Applicant’s claims relating to the events in 2013 and 2015 specifically in the paragraphs of the Tribunal Decision that have been referred to in paragraphs 47 to 55. The Tribunal made specific findings in relation to these incidents. It also dealt with these incidents together with the other claims made by the Applicant.
I also do not accept that the Tribunal should have applied the “what if I am wrong” test in relation to the 2013 and 2015 events not having a Convention nexus.
I accept the submissions of Counsel to the Minister as discussed in paragraphs 56 to 59.
A fair reading of the Tribunal Decision as a whole leads me to conclude that the Tribunal had “no real doubt” that the events claimed had not occurred. Therefore there is no warrant for holding that the Tribunal should have considered the possibility that its findings were wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, [67].
I therefore reject the third particular.
Conclusion
I conclude that there is no evidence that the Tribunal misunderstood the real chance test.
The Tribunal Decision is not vitiated by jurisdictional error.
The Application will be dismissed with costs awarded to the First Respondent fixed in the sum of $7,328.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Associate:
Date: 11 November 2019
Correction (10 December 2019)
‘Delivered on’ date on page two of Cover sheet and Orders changed from 9 November 2019 to 11 November 2019.
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