DGD16 v Minister for Immigration and Border Protection

[2021] FedCFamC2G 338

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)

DGD16 v Minister for Immigration and Border Protection [2021] FedCFamC2G 338

File number(s):	SYG 2996 of 2016
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	9 December 2021
Catchwords:	MIGRATION – Application to review decision of the Administrative Appeals Tribunal – protection (Class XA) visa – whether Tribunal made a jurisdictional error – legal unreasonableness – illogical reasoning – no jurisdictional error made out.
Legislation:	Migration Act 1958 (Cth) ss.5J, 474.
Cases cited:	AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247
Division:	Division 2 General Federal Law
Number of paragraphs:	55
Date of hearing:	6 October 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Jones
Solicitors for the Applicant:	Firmstone & Associates
Counsel for the First Respondent:	Mr Johnson
Solicitors for the First Respondent:	Sparke Helmore

ORDERS

SYG 2996 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DGD16

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	9 DECEMBER 2021

THE COURT ORDERS THAT:

1.The Amended Application for judicial review filed 4 August 2020 is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the amount of $7,206.

Note: The form of the order is subject to the entry I  n the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”), which affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing to grant the applicant a Protection (Class XA) visa.

2. On 21 August 2014, the applicant applied for a subclass 573 student visa, which was granted offshore on 27 October 2014. The applicant arrived in Australia on 1 November 2014.

3. On 10 February 2015, the applicant applied for a Protection (Class XA) visa.

4. The applicant was invited to attend an interview before a delegate of the Minister on 24 June 2015, which he did not attend, allegedly because he was not notified by his migration agent of the interview.

5. On 6 July 2015, a delegate of the Minister refused to grant the applicant a protection visa.

6. On 13 July 2015, the applicant applied to the Tribunal for review of the delegate’s decision.

7. A hearing was held before the Tribunal on 19 September 2016.

8. On 19 October 2016, the Tribunal affirmed the decision under review.

9. The applicant relies on one ground of judicial review as set out in an amended application filed 4 August 2020, specifically that “the Tribunal made a jurisdictional error in relation to its finding that the applicant had lived in Zaytoun rather than Jabal Mohsen in Tripoli, Lebanon.”

10. The applicant presses only particulars (a), (f), (g) and (i) in support of the ground, namely:

    a.The Tribunal could not engage in legal unreasonableness, with the result that there must be an evident and intelligible justification for material findings of fact: see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [10] and [82]

    f.The Tribunal was required to engage in proper, genuine and realistic consideration, in the sense of active intellectual engagement, with respect to the Applicants’ case: Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[43];

    g.For this purpose, the Applicant’s case extended to matters arising from the Tribunal’s own findings of fact: : AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [26]

    i.The Tribunal did not properly consider, or otherwise was legally unreasonable as a consequence of, its finding at paragraph 40 of its decision that the Applicant’s job may, as the Danish Refugee Service had suggested, have required him to go Jabal Mohsen and Bab Tabbaneh, and its finding that the Applicant may have transited through those locations.  The effect of those findings was that, contrary to the reasoning of the Tribunal at paragraph 43 of its decision, it did not necessarily follow that simply because the Applicant did not reside in Jabal Mohsen, he had not suffered the harm claimed in that location.

    The Applicant’s Claim for Protection

11. The applicant is a citizen of Lebanon.

12. In Lebanon, the applicant was last employed by the Danish Refugee Council (“DRC”) as an Emergency Response Assistant where he would conduct home visit assessments of newly settled (Syrian) refugees.

13. The applicant claimed that he had lived in the Jabal Mohsen neighbourhood of Tripoli all of his life and that he was of the Alawi faith.

14. To travel to most areas of Lebanon, the applicant said that he would need to go through Bab Tabbaneh (a bordering neighbourhood of Tripoli) and that there were barricades and checkpoints which had been set up, by the anti-Syrian regime and anti-Alawite groups, which he would need to go through. The applicant claimed that such check-points were used to screen the identities of travellers, including to ask questions about an individual’s place of residence, employment and religion, among other things. The applicant claimed that at any time he went through these barriers he had to lie about his identity to protect himself.

15. The applicant claimed that his life is in danger and that he is at risk of harm, or even death, should he return to Lebanon. He claimed such risk would arise through his routine travel between Jabal Mohsen and Bab Tabbaneh, which were known areas of conflict, due to his Alawi religion.

16. The applicant also claimed that due to his work at the DRC, he had been perceived by both members of the Jabal Mohsen and Bab Tabbaneh to be sympathetic to the other, and as a result received threats from both groups. He explained that the people from Jabal Mohsen (where he lived) would pester him for information regarding hiding places of the radical or extremists of Bab Tabbaneh, but he would deny that he knew anything. The applicant believed that the people from Jabal Mohsen thought he was withholding information from them.

17. The applicant stated that on 22 January 2014, some 6 months before arriving in Australia on a student visa, on his way home he was stopped by men from Bab Tabbaneh, at one of the checkpoints referred to earlier, and vigorously questioned about where he was from and what he was doing. He told them he was from Kobbe rather than Jabal Mohsen (the Tribunal’s reasons mistakenly refer to this as Koura), and was able to answer questions about that area as he was familiar with that area. He was allowed to pass, but was warned later by his colleagues that the Lebanese Armed Forces in the areas they visited had suspicions about his identity and were on the lookout for him. The applicant claimed that the radicals thought that he was feeding information to people in Jabal Mohsen about them.

18. On 12 March 2014, there was conflict between Jabal Mohsen and Bab Tabbaneh, the applicant claimed that as he was returning from work, he was stopped at a mosque barricade manned by 10 men, and asked to prove that he was Sunni. He claims he was hit and slapped and that his car was damaged. The applicant claimed that he was told that the next time they saw him they would not hold back and that he was in their direct sights.

19. That applicant also claimed that due to his work with Sunni Syrian refuges he is at risk of being interrogated and harmed by the Alawi community; as well as being killed by the Sunnis or taken hostage by the ex-military Syrian refugees, due to his Alawi religion. He claimed that his religion has left him exposed to harm from all community groups, and that as an Alawite there is no place in Lebanon where he could be safe, and that as an Alawite he would have to reside in an Alawite area or he would be killed.

    The Tribunal Decision

20. The Tribunal found that the applicant’s evidence regarding his claims was vague and lacked certainty, and it did not find the applicant to be a reliable, credible or truthful witness. The Tribunal found that the applicant had fabricated his claims in order to be granted a protection visa.

21. The Tribunal did not accept that the applicant had lived in Jabal Mohsen as he claimed. As such the Tribunal did not accept that the applicant had to travel through Jabal Mohsen in order to get to most areas of Lebanon, nor that he had been stopped, questioned, hit, or threatened whilst travelling through the area on a number of occasions as he had claimed. The Tribunal also found that the Lebanese Armed Forces were not on the lookout for him, nor that each side thought that he worked for the other, nor that people from Jabal Mohsen pestered him for information about radicals from Bab Tabbaneh.

22. The Tribunal did not accept that the applicant was of Alawi faith but rather determined that he was a Shi’a. As such the Tribunal held that the applicant was not of interest to the Alawi community, or the Arab Democratic Party for his work with Syrian refuges. Additionally, as the Tribunal determined that he was not an Alawite, it followed that he was not at risk of being kidnapped by Syrian refuges for his religious beliefs.

    Judicial Review Application

23. The application for judicial review focuses on specific aspects of the Tribunal’s reasons.

24. The Tribunal found that it “does not accept that the applicant lives in Jabal Mohsen as he has claimed”. Rather, the Tribunal found he lives in Zaytoun, an area to the south but distinct from Jabal Mohsen.

25. This finding by the Tribunal, the applicant submits, was critical to its reasoning with respect to the applicant’s claims of harm in Jabal Mohsen.  The Tribunal reasoned as follows:

    43. Because I do not accept that the applicant resides in Jabal Mohsen it follows that he did not have to travel through Jabal Mohsen in order to get to most areas of Lebanon, nor that he was stopped and questioned by men from Bab Tabbaneh in January 2014, that the Lebanese Armed Forces were looking out for him, that [he] was again stopped in March 2014, hit and threatened, that he had received threats from people in Jabal Mohsen and Bab Tabbaneh because each side thought that he worked for the other, or that people from Jabal Mohsen pestered him for information about the locations of radicals from Bab Tabbaneh.

26. However, the applicant submits that the Tribunal had already made a finding as to how the applicant would otherwise be present in Jabal Mohsen and Bab Tabbaneh earlier in its reasons.  The Tribunal’s finding, based on letters from the DRC, the applicant submits was as follows:

    40. One [letter] refers to conflict between Jabal Mohsen and Bab Tabbaneh putting the applicant at risk and him being asked not to come to work as a result.  However, this may have been because his job required him to go to these locations or because he had to transit near there to go from home in Quora to the office Tripoli.

27. The applicant submits that the Tribunal’s finding, that the applicant was not at risk of harm in Jabal Mohsen or Bab Tabbaneh because he lived in Zaytoun and not Jabal Mohsen as he claimed, is legally unreasonable. The finding is, according to the applicant, “a classic non-sequitur”. The applicant submits that a finding that he did not reside in Jabal Mohsen does not necessarily mean he would not otherwise face harm there, particularly as on the Tribunal’s own findings at [40], the applicant could be required to be present in Jabal Mohsen as part of his work with the DRC. 

28. The applicant submits that the Tribunal did not engage with the significance of the evidence, which it accepted, of the applicant’s work in Jabal Mohsen and Bab Tabbaneh. It did not consider whether this would lead to a real chance in the future of the applicant being present in those locations, whether on account of working for the DRC or otherwise. It did not consider whether it would be reasonable for the Applicant to avoid those areas in accordance with s.5J of the Migration Act 1958 (Cth) (“the Act”). In essence, the applicant submits the Tribunal did not give active intellectual consideration to its own findings of fact beyond the applicant’s place of residence.

29. The first respondent submits that the Tribunal’s decision contains no jurisdictional error and therefore is prevented from being reviewed under s.474(1) of the Act.

30. The first respondent further submits that the Tribunal found the applicant’s evidence regarding his claims to be vague and to lack credibility, and that he was not a reliable, credible or truthful witness. It expressly rejected his claim to have lived in Jabal Mohsen, but found rather than he lived in Zaytoun, which it described as “an area to the south but distinct from Jabal Mohsen”. The Tribunal came to this conclusion on the basis of a title deed for the applicant’s family’s residence in Tripoli, and it was not satisfied of the applicant’s explanation that Jabal Mohsen had been known as Zaytoun for the last 40-50 years.

31. The first respondent argues that as a consequence of the Tribunal’s finding regarding where the applicant lived, it did not accept that he had to have travelled through Jabal Mohsen to get to most areas of Lebanon, and did not accept his claims to have been adversely affected by the conflict in the area, including his claim that he was stopped and questioned by men from Bab Tabbaneh in 2014, or that the Lebanese Army had been looking out for him.

32. The first respondent further argues that the applicant claimed that due to his Alawi faith he feared being kidnapped by ex-Syrian military. The first respondent contends that as the Tribunal found as that he was not an Alawite then he could not hold such fear. Further, the first respondent submits that by the applicant’s own admission, the DRC actively allowed him to stay home whenever he wanted if he did not feel safe, which the applicant agreed to taking up such offer.

33. The first respondent also argues at the applicant being asked to stay at home was due to an inherent requirement of his job being to travel to various areas. However, such observations were argued to be unrelated to the claims the Tribunal rejected, being the applicant’s claim to have lived in Jabal Mohsen and to have travelled through checkpoints at Bab Tabbaneh.

34. Moreover, the first respondent relies on the applicant’s own admission that “in normal circumstances, Alawites would be denied entry to most of these areas, however due to my job I was allowed it”. Such statement suggests that not only did the applicant not fear for his life, but rather that there were privileges associated with his job, which he otherwise would not have been afforded.

35. As such the first respondent contends that the decision of the Tribunal involved no legal unreasonableness, and is in fact reasonable and follows, logical.

    Determination

36. A finding of fact by the Tribunal is judicially reviewable for legal unreasonableness, in the sense that the finding is irrational, unreasonable or lacks an evident and intelligible justification: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151.

37. The Tribunal is required to address all substantial matters which might bear upon whether the applicant meets the criteria for a grant of a protection visa:  Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 (at [42]), citing the majority in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247.

38. An unarticulated claim might “clearly emerge” before a decision-maker, having regard to his or her own findings and the material before the decision-maker upon which those findings are reached: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [26].

39. The main thrust of the applicant’s argument on judicial review, relies upon a particular reading of paragraph 40 of the Tribunal’s decision. The applicant presses upon the Court a conclusion that paragraph 40 contained findings of fact, namely that the applicant’s job might have required him to go to two particular locations of Jabal Mohsen and Bab Tabbaneh.

40. The suggestion by the Tribunal that the reference to the conflict between Jabal Mohsen and Bab Tabbaneh putting the applicant at risk may have been because his job required him to go to these locations, is a finding of fact. The use of the word “may” as opposed to “was” or “is” arguably weighs against it being a finding of fact, however, what the Tribunal was doing in [40] was trying to explain away the DRC letter and why it gave it little weight.

41. There was nothing in the letter from the DRC which referred to the applicant’s residence or indeed that he travelled between the named locations. All that the letter said was that:

    The continuous armed conflict between the two neighbourhoods Bab Tabbaneh and Jabal Mohsen in Northern Lebanon was putting Ali in a high risk, he was frequently asked not to come to work due to the deteriorated security situation.

42. The “risk” in the letter is not articulated, nor is there any suggestion that the applicant had been harmed as a result of attending to his job. Furthermore, it was the applicant’s own evidence that this job at the DRC required him to travel into Bab Tabbaneh, so the Tribunal’s finding that he may have been travelling through those areas was not without foundation. The applicant did stop attending work because of the armed conflict between Bab Tabbaneh and Jabal Mohsen.

43. It was the fact that the applicant, an Alawite, was travelling from an Alawite area that the applicant claimed was the cause for the adverse attention he received, not simply the fact that he travelled to Bab Tabbaneh.

44. Neither the applicant nor the first respondent specifically addressed the Court on the second aspect of the Tribunal’s decision in paragraph 40 namely the Tribunal’s speculation that the applicant that “may have … had to transit near there to go from home in Quora to the DRC office in Tripoli”.  The Tribunal had before it both the applicant’s student visa application and refugee visa application, the applicant was indeed asked about information he provided to the Tribunal and information he had provided previously. The DRC Office in Tripoli is in Qalamoun, North Lebanon. The applicant attended school in Quora in Tripoli. The applicant’s case was that he always lived in the Jabal Mohsen neighbourhood in Tripoli, a claim which the Tribunal rejected. There was no suggestion by the applicant at any time that he lived in Quora nor was there any evidence which suggested that he lived in Quora. The reasoning behind the Tribunal’s speculation as to why he might travel between Jabal Mohsen and Bab Tabbaneh being that it might have been to travel between his home in Quora and the DRC office, appears to misunderstand the geography of the Tripoli neighbourhoods. In trying to come up with a reason as to why the applicant might have travelled between particular areas (although as noted earlier, there is no suggestion in the letter that he did travel to those areas) led the Tribunal to speculate in a way which was troubling. As noted, neither the applicant nor the first respondent addressed this issue.  

1. If the Tribunal rejected the letter because it formed the view and found that the applicant travelled between his home in Quora and DRC offices, then this is inconsistent with its finding that the applicant lived in Zaytoun. If [40] contained findings, then they are inconsistent with the findings at [38] in respect of the applicant’s residence.

2. The Tribunal rejected not only the applicant’s claim that he lived in Jabal Mohsen, but also his claim that he is Alawite. His claims for protection were based on these two pillars which tied in with his job at the DRC. In essence, the applicant was saying that because of his job at the DRC, which required him to help Syrian refugees, and because he was an Alawite and lived in Jabal Mohsen, he was at risk.

3. Even if the Tribunal had made findings at [40] as to why the applicant had travelled between the areas of Jabal Mohsen and Bab Tabbaneh, it was still open to it to reject the applicant’s claims because they were based on the claims that he lived in Jabal Mohsen and that he is Alawite. The applicant’s claims were predicated on him living in Jabal Mohsen. It was because he lived there that he was required to travel through the area, it was because he lived that that he was stopped on his way home in January 2014, it was because he lived there that he was stopped on his way home in March 2014, it was because he lived there that “they knew” he was Alawite. It was because he was Alawite that he lived in Jabal Mohsen and/or vice versa.

4. The applicant claimed that he lived in Jabal Mohsen, and that he had lived there all of his life. This was rejected on a number of basis, namely:

   a.When asked to provide a copy of the lease or title deed to the family home, the applicant provided a titled deed which placed the residence in Zaytoun, Tripoli, an area which is to the south of Jabal Mohsen.

   b.The applicant’s father’s letter which had his residential address as al-Burj building in Jabal Mohsen was said not to be evidence from an objective witness;

   c.More weight being given to the title deed than the letter from the applicant’s father;

   d.The letter from the DRC was considered but it was noted that the letter did not say where the applicant lived and the Tribunal then went on to speculate as to why the DRC might have considered the applicant to be at risk due to the conflict between the Jabal Mohsen and Bab Tabbaneh neighbourhoods in Tripoli;

   e.The Tribunal rejected the applicant’s claim that Zaytoun was the old name for Jabal Mohsen, no country information was found nor provided to support this claim;

   f.The applicant had said that Jabal Mohsen was known by that name for 40-50 years but the family property was purchased 20 years ago, and as such it would have been reasonable for the title deeds to have the updated name; and

   g.Country information indicated that Jabal Mohsen is included in Bab Tabbaneh for administrative purposes, which further added concern to the applicant’s claim that his property would appear as Zaytoun (rather than Bab Tabbaneh) on the title deed.

5. The applicant claimed that he was an Alawite. This was rejected on a number of basis, namely:

   a.The applicant’s parent’s marriage certificate described his father as Shi’a and his mother as Sunni;

   b.The applicant’s family and individual registration documents issued in August 2014 described the applicant as Shi’a;

   c.The letter from the Alawi Islamic Council in Tripoli attesting to the fact that the applicant was known to them as belonging to the Alawi sect was unconvincing and more weight was placed on the other official documents produced by the applicant in determining his religious identity;

   d.Country information indicated that Lebanese citizens were free to change their religion on their identity cards and registration documentation. The applicant did not do so, and accordingly the Tribunal did not accept the applicant’s claim that he did not do so because he was not required to apply for any jobs that required him to identify himself by virtue of his religion; and

   e.The applicant’s claim that his brother has also changed his religion only highlights the fact that the applicant was aware that he could change his religion on identity documents an registration documents and could have easily found out how to do it.

6. As such there was evident justification for these two material findings of fact.

7. All of the applicant’s claims were centred on him being Alawite and living in Jabal Mohsen, and the only reason that he says he was targeted as an employee of the DRC is because of where he lived and because he is an Alawite. It was because he lived in Jabal Mohsen that he claimed the rest of the neighbourhood viewed him with suspicion, it was because he was Alawite and lived in Jabal Mohsen that he claimed he was targeted by the Sunnis. It is clear that the applicant’s claim is that but for him being Alawite and living in Jabal Mohsen he would not have come to any harm. On that basis, even if there had been a finding at [40] as to the requirement to travel for his work this per se did not place him at risk, it was the alleged fact of living in Jabal Mohsen and being Alawite, that together with his work, the applicant claimed placed him at risk. As such, the Tribunal did engage in an active intellectual manner with the applicant’s case.

8. To suggest as the applicant does that the Tribunal was bound to consider an unarticulated claim based on its ‘findings’ at [40] misses the point that the only reason why the applicant says he suffered harm in those circumstances is because of where he lived and his religion. Just because the applicant might be at a particular place for his work, does not mean that his evidence for being in that place for another reason thus giving rise to his claim, gives rise to an unarticulated claim that he was at risk simply by being in that place. If he does not live at Jabal Mohsen he could not have been stopped on his way home to Jabal Mohsen on 22 January 2014 as he claimed. If he does not live at Jabal Mohsen he could not have been stopped on his way from home from Jabal Mohsen on 12 March 2014 as he claimed. His residence at Jabal Mohsen and being Alawite were central to his claim. Everything else he claimed was woven around those two central facts, which the Tribunal did not accept.

9. At most, what the DRC letter and the Tribunal’s comments at [40] reveal, is that there were hostilities in particular neighbourhoods in Tripoli which put the applicant at high risk, perhaps because he needed to travel to those areas for his work. Those matters did not add any additional claims to the ones which the applicant expressly made.

10. There was nothing unreasonable or illogical about the Tribunal’s reasoning process.

11. The application for judicial review is not made out.

56          I certify that the preceding 55 (fifty-five) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 9 December 2021