DDX16 v Minister for Immigration
[2017] FCCA 2360
•27 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDX16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2360 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Lebanon as an informant for the intelligence service and because of false rumours spread about him in Lebanon by his former solicitor – applicant not believed – whether the Tribunal decision was in part based upon a finding that lacked any evidentiary basis considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.36 Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration v SGLB (2004) 207 ALR 12 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | DDX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2913 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 8 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Michael McCrudden Solicitors Pty Ltd |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
AMENDED ORDERS
The application as amended on 24 April 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2913 of 2016
| DDX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 27 September 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Lebanon who most recently entered Australia on a sponsored family visitor visa on 25 October 2014.[1]
[1] Court Book (CB) 151 at [33]
On 8 December 2014 the applicant, through his then solicitor Mr B,[2] lodged an application for a subclass 866 protection visa.[3]
[2] the name has been anonymised
[3] CB 1-38
In his statement[4] accompanying the protection visa application, the applicant claimed that he had lived in a named village (home village) in northern Lebanon and worked at a petrol station for over ten years. He claimed that he had been approached at the petrol station by a member of the “Lebanese Intelligence” (Intelligence Service) who “requested that I be an informant and report any suspicious or relevant information about anyone and everyone in the village”.
[4] CB 37-38
The applicant said that he accepted this offer, but feared telling anyone in the community, including his family, as he would be dubbed a traitor.
The applicant said that he “lived a very dark life”, became consumed by his own problems and did not report any valuable information. He had also started feeling that people knew about his role and it became obvious that he was no longer wanted, as the information he was relaying was not relevant. He feared that, once his time was up, he would no longer be protected by the Intelligence Service and they would not strive to keep his real identity a secret “as they do not care what happens to a mere citizen”. He claimed that he did not feel protected by the Intelligence Service because an insider told a member of the community that he was an informant.
The applicant said that he pleaded with his family in Australia to apply for a visa for him, as he wanted to flee and save himself before he was murdered by anyone in the community. He said that when he arrived in Australia, he shared his story with his family and they advised him to remain in Australia, as they also feared for his life.
On 16 February 2015 the applicant was interviewed by the delegate,[5] at which time he provided an Amended Statement of Claim dated 14 February 2015[6] containing two additional claims, namely:
·that news was also spreading that he was informing about and dobbing in the villagers and, on 23 October 2014, the Lebanese army carried out an operation against an ISIS group operating in the next village. After that incident, “many groups of long bearded men” stopped at the petrol station and asked about his whereabouts; and
·since arriving in Australia, he had been informed by the petrol station owner that “numerous groups with long beards” had been asking his whereabouts and they had “threatened”.[7]
[5] A summary of the evidence given at the interview is in the primary decision at CB 72-75
[6] CB 54-55
[7] CB 55 at [9]-[10]
On 27 May 2015 the visa application was refused by the delegate, who formed the view that the applicant had fabricated his claims about being an informant for the Intelligence Service.[8]
[8] CB 69-78
The applicant sought review by the Tribunal on 11 June 2015.[9] A hearing was convened by the Tribunal on 9 September 2016.
[9] CB 82-83
On 8 September 2016, the applicant’s new representative, David Coote of The Australian Immigration Place,[10] emailed[11] a submission[12] and supporting documents to the Tribunal.
[10] CB 102
[11] CB 101
[12] CB 105-106
Included in the documents was a further statutory declaration of the applicant[13] which:
a)identified the Lebanese intelligence agent who had approached him as Mr O;[14]
b)related a further incident which had occurred in October 2014 when the applicant had followed four men in a four wheel drive vehicle containing weapons and reported them to Mr O, and the men had been captured three days later;
c)related other incidents, including threatening telephone calls, slashed tyres, and a suggestion from Mr O that the applicant go into hiding; and
d)introduced a new claim relating to the applicant’s former solicitor, Mr B. The applicant claimed that Mr B was a friend of the family from their village, but that he had started telling people from the village about the applicant’s situation. After this, people from the village “verbally assaulted and threatened” his brother in the village, saying “we know what your brother said about the people from the village we want to kill him”.[15]The applicant said that his community in Sydney “also knew about these false accusations of me being with the ISIS” and that he had found out through his nephew that Mr B had “exposed false accusations regarding my visa application”, specifically mentioning to the local community in Lebanon that the applicant had said that village members were among members of ISIS. He said that Mr B had made these false accusations “purely as a means to attack my integrity and turn the community that I love against me” because the applicant had not paid him the money he required to undertake his case. The applicant said that as a result of these false accusations becoming public, he could not return to Lebanon, as he was receiving threats from his community and his life was in danger.[16]
[13] CB 112-115
[14] the name has been anonymised
[15] CB 114
[16] CB 114-115
Mr Coote also provided a number of supporting documents, including an undated statement in Arabic with an English translation signed by four residents of the applicant’s home village and authenticated by the mayor of the village (the villagers’ statement), relevantly declaring that:[17]
... not that long ago information was circulated among the people of the village quoting lawyer [Mr B], who had previously visited the town, that after asking him about the reason for his inability to obtain visas for the village people to travel to Australia his answer was that the main reason for not obtaining the said visas was that [another named person] had informed the Australian government that there were terrorist groups in the town.
This claim by lawyer [Mr B] has upset and angered the people against [the applicant] and his family, caused a big schism and led to tensions among the clans of the town, with some people targeting [the applicant’s] brother with insults, threats and intimidation. His response was that he had nothing to do with the matter, so they threatened to assault and take revenge against [the applicant] when he comes back from Australia.
[17] CB 107
On 9 September 2016, the applicant and his wife appeared at the scheduled hearing before the Tribunal.[18]
[18] CB 116‑118
At the hearing, the applicant confirmed that his application for protection consisted of two claims. First, he was claiming that the Islamic State would kill him upon return to Lebanon because he has reported on them.[19] Secondly:[20]
[19] Transcript, page 12, lines 38-42
[20] Transcript, page 13, lines 3-14
... the people in my village, they want to kill me because the - the lawyer told them that I told the Australian Government that there was ISIS in – Islamic State in my village and that's why they - like, you know, the government not giving - granting visas to anyone else there.
MEMBER: Okay. So, your second claim is that you think people from your village will kill you because your lawyer has told people in the village that you have told the Australian Government Islamic State is present, which is why they're not getting visas?
APPLICANT: Yes.
The applicant gave evidence about his first claim, that the Islamic State would kill him, and then gave evidence about his second claim, that the people in his home village would kill him.[21]
[21] Transcript, page 13, line 28-28.2
Relevantly to the present case, the applicant was asked by the Tribunal member whether he had any witnesses as to what had happened in the village with Mr B, and he referred to the villagers’ statement as follows:[22]
You've got the document and you can ring anyone you like. It is signed from the, like, you know, the village Muktar.[23]
[22] The word “Muktar” has not been transcribed but can be identified from the audio recording of the hearing ; Transcript, page 30, lines 9-10
[23] The mayor of the village
The Tribunal also took evidence from the applicant’s wife, who had been to Lebanon and witnessed the villagers’ anger at the applicant.[24]It put some inconsistencies to the applicant about his evidence regarding the first claim,19 and asked him why he could not relocate to another part of Lebanon.[25] It also raised some issues about one of the documents that the applicant had provided, which was purported to be from the internal security forces.[26]
[24] Transcript, page 33, lines 19-39:4
[25] Transcript, page 41, lines 4-42:14
[26] Transcript, page 42, lines 18-43:30
Towards the end of the hearing, the applicant’s representative referred to the applicant’s second claim, noting that it would be difficult to complain about the conduct of a fellow member of the Lebanese community.[27] When the Tribunal member said that the allegation against Mr B was “extremely serious”, the representative replied that, “the only problem is how you prove it”.[28] The member responded by saying “…if there are people who - if there are witnesses overseas who would testify to it then I'm thinking there’s a good place to start”,[29] and the representative noted that, “you have a Statutory Declaration from four of them”.[30]
[27] Transcript, page 44, lines 45-45:5
[28] Transcript, page 45, line 26
[29] Transcript, page 45, lines 37-39
[30] Transcript, page 46, lines 5-6
On 19 September 2016, Mr Coote provided a post-hearing submission and further evidence about the applicant’s first claim.[31] On 20 and 25 September 2016 Mr Coote emailed further country information to the Tribunal.[32]
[31] CB 124-130
[32] CB 131-143
The Tribunal’s decision
On 27 September 2016, the Tribunal affirmed the delegate’s decision.[33]
[33] CB 146-155
The Tribunal did not accept that the applicant was a credible witness and it rejected his material claims for protection.[34] It did not accept that he had ever worked for the Lebanese police or Intelligence Service in any capacity, or that he informed on a group of Islamic State fighters who used his petrol station. It also did not accept any of his claims flowing from his claim to be an informant.[35]
[34] CB 151 at [35]
[35] CB 151 at [36]; CB 152 at [39]-[40]; CB 153 at [49]
In reaching this conclusion, the Tribunal identified a number of deficiencies in the applicant’s evidence. It found that the claim that a petrol attendant would be recruited as an informant was implausible.[36] It further found that his evidence about how frequently he was contacted by an intelligence officer[37] and his evidence that jihadists refuelled at his petrol station was inconsistent.[38] The Tribunal rejected the claim that the applicant had been called on the phone and threatened with death as a consequence of reporting on Salafists. It did not consider it credible that Salafists, if their members were killed and arrested based on the applicant’s report, would not harm any of the applicant’s family members, even though they remained living in the same location since the applicant left Lebanon.[39]
[36] CB 151 at [36]
[37] CB 151 at [37]
[38] CB 152 at [39]
[39] CB 152 at [40]
The Tribunal placed little weight on a letter from the Internal Security Forces and a letter from the manager of the petrol station, and found that these documents could have been produced on any home computer.[40] It also placed little weight on a handwritten letter and email provided by the applicant’s niece and nephew, finding that they were not objective witnesses.[41]
[40] CB 152 at [41]
[41] CB 152 at [42]
The Tribunal considered the applicant’s claim that his former Australian lawyer (Mr B) went to the applicant’s village in Lebanon and told villagers that the applicant had informed the Australian government that ISIS was present in the village and therefore the Australian government were not granting visas to the people from the village. The Tribunal[42] put to the applicant that his allegation represented an extremely serious accusation against a lawyer or a migration agent, and it found that it was not credible that the applicant would wait until the day of the Tribunal hearing to explore his options in making a formal complaint against the lawyer.[43]
[42] at CB 150 at [25]
[43] CB 152‑153 at [43]-[44]
The Tribunal did not accept the wife’s claims that she overheard a conversation about the incident involving the lawyer when she visited the village. It placed greater weight on its assessment of the applicant’s lack of credibility than on the documentary evidence provided in support of the claim.[44]
[44] CB 153 at [47]-[48]
The Tribunal did not accept that the applicant had a well-founded fear of persecution on the basis of his claims.[45] In light of its earlier findings, the Tribunal also did not accept that the applicant faced a real risk of significant harm.[46]
[45] CB 153 at [50]
[46] CB 153‑154 at [51]-[52]
The current proceedings
These proceedings began with a show cause application filed on 25 October 2016. The applicant now relies upon an amended application filed on 24 April 2017. There is one particularised ground in the amended application:
The second respondent's decision was in part based on a finding that lacked any evidentiary basis.
Particulars
1. The applicant had claimed that he was at risk upon return to Lebanon because his former solicitor had told persons from the applicant's home village in Lebanon that the applicant had informed the Australian Government that Islamic State was present in the village. and that this was the reason villagers would not get Australian visas.
2. The applicant (at p. 108 of the Court Book) provided a letter prepared and signed by four villagers corroborating his claim to be in danger if he were to return to the village. The letter was signed by the mukhtar (mayor) of the village to authenticate the information and signatures of the four persons.
3.The second respondent (at [48]; p. 153 of the Court Book) discounted the weight of the letter on the grounds of DFAT country information indicating that “letters from local mayors are not normally considered as reliable sources of information.”
4. The DFAT country information was not probative of the reliability of the information provided by the four villagers; rather. it was only probative of the reliability of the mayor. who had only authenticated the information and signatures of the four villagers.
In addition to the court book filed on 20 January 2017, I have before me as evidence the affidavit of Jodie Ellen Coomber made on 3 April 2017, to which is annexed a transcript of the Tribunal hearing. I also received as an exhibit the DFAT country report in issue.[47]
[47] Exhibit C1
Both the applicant and the Minister filed written submissions and also made oral submissions through their counsel at the trial of the matter on 8 September 2017.
Consideration
I accept the applicant’s submissions concerning the relevant legislative provisions.
The criteria for a subclass 866 visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly to the present case, subclause 866.221(2) provides:
The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
The two alternative means by which an applicant can be granted a protection visa are set out in s.36(2)(a) and (aa) of the Migration Act 1958 (Cth).
Section 36(2)(a) sets out the criterion for what were formerly referred to as Australia’s protection obligations under Article 1A(2) of the Refugees Convention. However, in December 2014 the definition was restated to remove any direct reference to the Refugees Convention, and s.36(2)(a) now requires an applicant to be:
a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
Section 36(2)(aa) sets out the criterion for “complementary protection”, which applies to persons who do not satisfy the definition as a refugee but nevertheless are owed protection obligations by Australia. Section 36(2)(aa) now requires an applicant to be:
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm
Section 36(2A) provides that a non-citizen will suffer “significant harm” if:
a)the non-citizen will be arbitrarily deprived of his or her life; or
b)the death penalty will be carried out on the non-citizen; or
c)the non-citizen will be subjected to torture; or
d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
e)the non-citizen will be subjected to degrading treatment or punishment.
Ground of review – applicant’s submissions
The applicant does not contend that there was jurisdictional error in the Tribunal’s rejection of his first claim that the Islamic State would kill him upon return to Lebanon because he had been reporting on them. Rather, the applicant’s contention is that the Tribunal erred in its rejection of his second claim that the people from his village would kill him because his former lawyer, Mr B, had told them that the applicant had told the Australian Government that Islamic State was in the village, which was why they were not getting visas. The applicant contends that the Tribunal had no evidentiary basis for its rejection of the villagers’ statement, which was critical to his second claim.
The critical importance of the villagers’ statement for establishing the applicant’s second claim was illustrated by the exchange towards the end of the hearing when, in response to the representative’s submissions about the difficulty of proving the “extremely serious” allegation against Mr B, the Tribunal member suggested that “a good place to start” would be if there are overseas witnesses. As the representative then observed, the four villagers who had made the statement constituted just that.
However, in its decision the Tribunal rejected the villagers’ statement on the basis that “letters from local mayors are not normally considered as reliable sources of information”. The applicant contends that this misrepresented the nature of the villagers’ statement, which was not a “letter from a local mayor”; rather, as the Tribunal more accurately described it at [47], it was a letter in support of the claim from four villagers, signed (or authenticated) by the mayor. The applicant submits that the Tribunal’s finding that “letters from local mayors are not normally considered as reliable sources of information” contributed nothing about the reliability of information provided by the four villagers and therefore provided no basis upon which to reject what was stated by them.
The applicant further submits that, even if the claimed country information that “letters from local mayors are not normally considered as reliable sources of information” were probative of the unreliability of information provided by the four villagers, there is no evidence of that country information, since footnote 3 to that information contains no page reference. However, the applicant submits that it is not necessary for him to rely on this observation to make out his case.
Minister’s submissions
The Minister resists the applicant’s contentions on the following bases.
In support of its impugned finding, the Tribunal cited in a footnote: DFAT Country Information Report – Lebanon, 25 February 2014 (DFAT report). The Tribunal referred to the DFAT report in the course of assessing the reliability of the villagers’ statement provided by the applicant to substantiate his claims. A translation of it[48] indicates that, as discussed above, it was prepared by four villagers who declared that the applicant’s former lawyer had visited the town and was not able to obtain visas for people in the village because the applicant had informed the Australian government that there were terrorists in the town. Underneath the signatures on the villagers’ statement is the following:
I, the undersigned, … , Mukhtar of the town of …, authenticate the information and the signatures provided above
[48] at CB 107
The Minister notes that the applicant’s sole ground of review depends entirely upon an “exceptionally fine” distinction being imposed on the Tribunal’s finding and its assessment of the available country information. The Minister contends that the applicant’s complaint must fail in circumstances where there is no indication that the reference in the country information to documents “from local mayors” was limited to documents that were authored as opposed to merely authenticated or signed by local mayors. A document that is authenticated or signed by a person can logically encompass being “from” that person. The applicant’s construction is said to require particular words to be read into the Tribunal’s finding to confine its intended meaning and there is no natural or evidentiary basis to support such a narrow construction.
The Minister submits that, accordingly, it was open for the Tribunal to have questioned the reliability of the letter “from” the local mayor of the applicant’s town in Lebanon, irrespective of whether it was written, signed or authenticated by him. The Tribunal’s finding is said to have been open on the basis of the country information to which it had regard. The question of the accuracy of country information is one for the Tribunal, not for the Court. Both the choice and the assessment of the weight of such material are matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.[49] Its reasons are not to be read narrowly and with an eye for error.[50]
[49] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
[50] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
The Minister further submits that there must be a jurisdictional fact before there can be a jurisdictional error based on a “no evidence” ground.[51] To succeed on the “no evidence” ground the applicant must show that there was no evidence at all upon which the finding of jurisdictional fact could have been based.[52] However, the question is not whether the court on judicial review would have reached the same finding on conflicting evidence. In the present case, it is said to have been open to the Tribunal to find that the country information supported the Tribunal’s concerns about the reliability of the statement. The Tribunal’s reliance on the country information is not the only basis for according the applicant’s supporting statement no weight. The Tribunal[53] expressly relied on the applicant’s lack of credibility as a witness. It had found on the basis of identified deficiencies and inconsistencies in his evidence[54] that the applicant was not “a reliable, credible or truthful witness”.[55] It also identified concerns with his other supporting documents.[56]
[51] SZAPC v Minister for Immigration [2005] FCA 995 at [47]; Minister for Immigration v SGLB (2004) 207 ALR 12 at [39]
[52] SZAPC v Minister for Immigration [2005] FCA 995 at [57]; SZRPT v Minister for Immigration [2014] FCA 24 at [33]-[39]
[53] at CB 153 at [48]
[54] see, for example, at CB 151-152 at [36]-[37], [40]
[55] CB 151 at [35]
[56] CB 153 at [47]-[48]
The Minister also submits that it was not illogical for the Tribunal, where it found that the applicant had fabricated his story and advanced claims that were considered inherently implausible, to reject his corroborative evidence even though there was no independent ground for such rejection other than the reasons given for disbelieving him.[57] The applicant’s credibility is said to have been so weakened that the Tribunal was entitled to accord his corroborative evidence no weight because “the well has been poisoned beyond redemption”.[58] The Tribunal’s findings about the applicant’s supporting documents did not lack a probative basis in the broader context of its assessment of the applicant’s lack of credibility and reliability as a witness.
[57] Re Minister for Immigration; Ex parte S20/2002 (2003) 198 ALR 59 at [12] per Gleeson CJ
[58] Re Minister for Immigration; Ex parte S20/2002 op. cit., at [49] per McHugh and Gummow JJ
Resolution
The applicant’s ground of review is clearly arguable. I accept that the applicant changed migration agents in May 2015[59] and the appointment of Mr Coote was notified later.[60] Although Mr B assisted in the preparation of the visa application, his services were dispensed with and I see no particular significance in the timing of the allegations against him.
[59] CB 58
[60] CB 91
The relevant claim by the applicant arose in his statutory declaration made on 7 September 2016.[61] It was supported by four villagers in the declaration.[62] I accept (as apparently did the Tribunal) that the villagers’ statement was verified by the mayor, who was also one of the four villagers making the declaration.[63] The applicant’s wife also gave supportive evidence.[64]
[61] CB 112
[62] reproduced at CB 107
[63] see Transcript, page 12, lines 28-30
[64] Transcript, pages 33-35, 45
There is no doubt that the applicant’s evidence was generally rejected on credibility grounds and that all of his claims were rejected as a fabrication at [35] of the Tribunal’s reasons. At [43]-[48] the Tribunal dealt specifically with the claim concerning the conduct of Mr B, the applicant’s former lawyer. The villagers’ statement is dealt with at [47]-[48] along with another document. The footnote referring to the DFAT country report relied upon is incomplete but I accept from Exhibit C1 that the relevant page of the DFAT report is page 25 and that the relevant information is at [5.39].
The country information relied upon by the Tribunal provided support for the proposition that Lebanese mayors in the applicant’s home village area were not a reliable source of identity verification. While that was part of the function performed by the mayor in this instance (ie, verifying the statement made by the villagers), the mayor was also a party to the statement by the villagers. The question is whether that makes a difference and whether there was any evidence supporting the Tribunal’s conclusion that the document should be given little or no weight.
The critical issue in this case is whether the country information relied upon by the Tribunal provided any evidentiary support for the rejection of the assertions by the four villagers (including the mayor). It certainly provided support for the rejection of the mayor’s role in the preparation of the document. It is but a short step, in my opinion, to support the conclusion by the Tribunal that because statements by mayors could not be relied upon, the document certified by the mayor could not be relied upon as to any of its contents. While one may quibble with the Tribunal’s reasoning, I find that there was not a complete absence of evidentiary support for the Tribunal’s rejection of the document and hence the ground in the application fails.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application is dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 October 2017
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