DNX16 v Minister for Immigration

[2018] FCCA 1289

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNX16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1289

Catchwords:
MIGRATION –Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for the relief he seeks – no arguable case for relief raised – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12(1)(a)

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa)

Applicant: DNX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3257 of 2016

Judgment of: Judge Manousaridis

Hearing date: 18 May 2018

Date of Last Submission: 18 May 2018

Delivered at: Sydney

Delivered on: 25 May 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms S He of Mills Oakley Lawyers

ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3257 of 2016

DNX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application for judicial review be dismissed because it does not raise an arguable case for the relief it seeks. The application for judicial review relates to the decision of the second respondent (Tribunal) affirming the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).

Claims for Protection

1. The applicant first stated his claims for protection in his application for a Protection visa which he lodged on 4 December 2014.[1] The applicant there claimed he left Lebanon to start a family with his “newly found bride to be in Australia” but that “this relationship has since broken down”; the applicant is “too afraid to return” to Lebanon as “ISIS have begun invading” and the applicant “may be killed” due to his beliefs; the applicant fears ISIS and death if he goes back to Lebanon; and the authorities are “ill equipped to take on this terrorist movement”. Before the delegate and the Tribunal the applicant claimed that “Daesh” controls Lebanon, that everybody is at risk of being killed by the group, that Hezbollah is secretly collaborating with ISIS, and that ISIS membership is made up of Sunnis, Shi’as, Christians, other religious groups and atheists.[2]

   [1] CB1-47

   [2] CB98, [17]

Tribunal reasons

1. The Tribunal treated the applicant as having made three sets of claims. The first is what the Tribunal referred to as general claims relating to the applicant fearing ISIS, terrorist organisations, Hezbollah, and a lack of security in Lebanon, and the applicant’s being “particularly concerned” about a recent incident in his home area.[3] The second set of claims is that “Daesh” controls Lebanon, that everybody is at risk of being killed by the group, that Hezbollah is secretly collaborating with ISIS, and that ISIS membership is made up of Sunnis, Shi’as, Christians, other religious groups and atheists.[4] The third claim is that that Sunnis are all targeted by Hezbollah and ISIS.[5]

   [3] CB97, [14]

   [4] CB98, [17]

   [5] CB98, [18]

2. As to the first of the three sets of claims it identified, the Tribunal accepted that in October 2014 attacks had occurred in the applicant’s home area, but it found no information to suggest attacks reoccurred, or that they occurred with any degree of frequency, or that the incident in October 2014 caused residents of the applicant’s home area to be displaced, as the applicant claimed to the delegate.[6] After referring to country information the Tribunal also found there was no persuasive information before it to suggest that “Daesh” or other terrorist groups have targeted Sunnis generally or Sunnis who are opposed to a group’s particular interpretation of Islam and its practices.[7]

   [6] CB97-98, [15]

   [7] CB98, [16]

3. As to the second set of claims the Tribunal noted the applicant provided no evidence to support these claims and, on the information before it, the Tribunal considered these claims to be “baseless and without any merit” and, therefore, was not satisfied there is a real chance or real risk that the applicant will face serious harm or significant harm in Lebanon at the hands of ISIS or other extremist or terrorist groups in Lebanon.[8]

   [8] CB98, [17]

4. As to the third set of claims the Tribunal accepted the Sunni community in the applicant’s home area had been targeted by a terrorist group in August 2013, but the Tribunal found there had been no further similar attacks, and that country information did not support the claim that all Sunnis in Lebanon are being targeted by Hezbollah or anyone else because of their religion or imputed political opinion; and there was no evidence before it to support the applicant’s claim that the war in Syria had spread to Lebanon generally or to his home area in particular.[9] The Tribunal also accepted that sectarian tensions have been on the rise in many areas of Lebanon as a result of the Syrian civil war and that some of these tensions may have been expressed in the form of hateful graffiti writings on walls in the applicant’s home area.[10] The Tribunal, however, noted that the applicant’s mother and five of his siblings continue to live in his home area, and the applicant has not claimed that they have been subjected to any form of harm in the past.  On the basis of the evidence before it, therefore, the Tribunal did not accept that Sunnis residing in the applicant’s home area face a real chance of serious harm or a real risk of significant harm at the hands of ISIS, other Sunni terrorist groups, Hezbollah, or anyone else.[11]

   [9] CB98, [18]

   [10] CB98, [19]

   [11] CB98-99, [19]

5. The Tribunal also found there was no persuasive evidence before it to suggest that the tensions, lack of general security, and any instability the applicant may be concerned about is faced by him personally. [12] The Tribunal appreciated that the applicant is concerned about general violence, political and sectarian conflict in Lebanon, but it was not satisfied that the general security situation would expose the applicant to a real chance of persecution for a Convention reason.[13]

   [12] CB99, [20]

   [13] CB99, [20]

6. The Tribunal was not satisfied, therefore, there is a real chance the applicant will be subjected to serious harm for reasons of his political opinion, religion, membership of a particular group, including the particular social group of his family or any other social group on the face of the evidence or for any other Convention reason.[14] The Tribunal was also not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Australia that the applicant will face significant harm in Lebanon, arising from his religion, his imputed political opinion, area of residence or other circumstances.[15]

   [14] CB99, [22]

   [15] CB99, [23]

7. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that the applicant will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of “torture” in s.5(1) of the Migration Act 1958 (Cth)(Act).[16] The Tribunal was not satisfied there are substantial grounds for believing there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment; or that the applicant will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Act; or that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of life or the death penalty.[17]

   [16] CB99, [24]

   [17] CB99, [24]

8. For those reasons the Tribunal found the applicant did not meet the criteria set out in s.36(2)(a) or s.36(2)(aa) of the Act.[18]

   [18] CB99, [25]-[26]

Grounds of application and show cause hearing

1. The application contains the following ground of review:

   The Tribunal Member misunderstood my well founded [sic] fear of persecution even though he accepted the sectarian tensions in my area yet failed to accept my subjective fear of persecution and harm.

2. The applicant, who is not legally represented, made submissions at the hearing before me that, at least initially, were directed to the Minister’s written submissions. The applicant first referred to the second page of the Minister’s written submissions, and then stated the officer who interviewed him from the Department of Immigration and Border Protection (Department) admitted “there is fear from ISIS, Daesh”. That appears to be a reference to paragraph 5 of the Minister’s submissions in which it is noted that the delegate was satisfied the applicant held a subjective fear that ISIS controlled Lebanon and that he may be killed by ISIS.

3. The applicant then referred to paragraph 8 of the Minister’s submissions. The Minister there refers to the Tribunal’s considering the “recent” incident in the applicant’s home area which made the applicant concerned; the Tribunal’s accepting that in October 2014 militants attacked an army patrol in the Khan al-Askar area, but then noting that the country information did not suggest the attacks occurred with any degree of frequency; and the Tribunal’s having considered independent country information in relation to the activity of Daesh and other Sunni-linked extremist groups, but finding there was no persuasive evidence that such groups targeted Sunnis generally or Sunnis who were opposed to the groups’ interpretation of Islam and its practice. The applicant submitted that the Department has information about the criminal random attacks on mosques in August 2013 and that it was submitted the applicant was in danger, but the Tribunal nevertheless rejected the applicant’s claims.

4. Next, the applicant referred to pages 64 to 73 of the Court Book (which is a copy of the delegate’s decision record), pages 90 to 92 of the Court Book (which is an article about a clash between the Lebanese Army and militants in Tripoli), and pages 95 to 100 of the Court Book (which is a copy of the Tribunal’s decision record). The applicant submitted the Tribunal member did not understand the applicant’s case and the importance of the problems in Lebanon, and in particular the problems posed by Syrians in Lebanon and the war in Syria.

5. The next matter to which the applicant referred is paragraph 19 of the Tribunal’s reasons where the Tribunal referred to the applicant’s mother and five siblings continuing to reside in the applicant’s home area without having been subjected to any form of harm and, on the basis of those facts, the Tribunal concluding it did not accept that Sunnis residing in the applicant’s home area face a real chance of serious harm or a real risk of significant harm at the hands of ISIS, other Sunni terrorist groups, Hezbollah or anyone else. The applicant said he told the Tribunal member that he was always moving from one suburb to another between Beirut and Tripoli. I asked the applicant whether that was recorded in the transcript of the hearing before the Tribunal. My use of the word “transcript” was intended to refer to a transcription of “the English parts” of what was said at the hearing before the Tribunal that was prepared by Mr Sarkis. The transcription is annexed to an affidavit made by Mr Sarkis and on which applicant relies (Transcript).

6. The applicant appeared initially not to have understood my question, because he directed my attention to the Transcript and commenced to repeat the matters the Transcript records the applicant stated to the Tribunal and, after I asked the applicant a further question in which I used the word “transcript”, the applicant said he did not understand that word. After I explained what I meant, the applicant said that his stating to the Tribunal member that he was always moving from one suburb to another between Beirut and Tripoli is not mentioned in the Transcript but he did say this to the Tribunal member. The applicant then continued to refer to statements the Transcript records the applicant made to the Tribunal.

7. After having repeated to me matters the Transcript records the applicant stated to the Tribunal, the applicant submitted that the Tribunal’s rejection of his claim was unreasonable and unjust because the Tribunal did not justify the rejection. When I asked the applicant why he so submitted, the applicant said the Tribunal did not ask the applicant why the applicant cannot go back to Lebanon. I asked the applicant whether he had read the Tribunal’s reasons. The applicant said he had and I asked him what was wrong with them. The applicant said the Tribunal should have looked at the information he had put to the Tribunal. He submitted the Tribunal did not consider the matters he submitted to the Tribunal.

8. There is one final matter I should record. Ms He, who appeared for the Minister, submitted I should not accept the applicant’s assertion that he told the Tribunal member that he was always moving from one suburb to another between Beirut and Tripoli. I then asked the applicant whether he was prepared to say on oath what he had said to me from the bar table that he had made such a statement, even though it was not recorded in the Transcript. The applicant said he was prepared to do so. He then gave evidence under oath that he said to the Tribunal member that he was always moving from one suburb to another between Beirut and Tripoli to avoid sectarian violence. The applicant was cross-examined, and I, too, asked the applicant questions. The effect of his evidence was that he heard the audio recording of the hearing before the Tribunal, but what he heard did not include him stating in Arabic words to the effect that he was always moving from one suburb to another between Beirut and Tripoli. The applicant suggested that the audio recording he heard was not a complete record of the hearing. After he gave evidence I asked the applicant whether the only basis on which he said the audio recording was not a complete record of the hearing was that it did not record that which he recalled saying before the Tribunal; and the applicant said that was the only basis on which he said the audio recording was not a complete record of the hearing.

Arguable case of jurisdictional error?

1. The ground stated in the application may be taken to make three claims:

   a)The Tribunal misunderstood the grounds on which the applicant claimed he had a well-founded fear of persecution.

   b)The Tribunal acted unreasonably or irrationally in concluding the applicant did not have a well-founded fear of persecution, even though it accepted there was sectarian violence.

   c)The Tribunal did not accept the applicant had a subjective fear of persecution or harm.

2. The first of these claims is not arguable. The Tribunal set out the claims it understood the applicant made; and there is nothing in the material before me that arguably suggests the Tribunal incorrectly set out what those claims were.

3. Nor is the second claim arguable. It is not arguable that the existence of sectarian violence necessarily meant it was inevitable that the applicant faced a real risk of serious or significant harm. The Tribunal gave reasons for concluding that, notwithstanding its acceptance that sectarian tensions have been on the rise in many areas of Lebanon as a result of the Syrian civil war, and that some of these tensions may have been expressed in the form of hateful graffiti writings on walls in the applicant’s home area, the applicant himself faced no real risk of significant harm. It is beyond argument it was reasonably open to the Tribunal to so conclude for the reasons it gave

4. The third of the three claims is not arguable because it is incorrect. The Tribunal accepted the applicant has a subjective fear of returning to Lebanon because it accepted the applicant is concerned about general violence, political conflict, and sectarian tensions in Lebanon.[19] In any event, even if the Tribunal did not find the applicant had a subjective fear of significant harm if he returns to Lebanon, and it could arguably be said it made some error in not making such a finding, that by itself would not result in the Tribunal’s making a jurisdictional error if there is no arguable case for claiming the Tribunal made some error in concluding, as it did, that objectively the applicant did not face a real risk of serious harm if he were to return to Lebanon. It is not arguable the Tribunal made any jurisdictional error in concluding it was not satisfied the applicant would face a real risk of serious or significant harm if he were to return to Lebanon.

   [19] CB99, [20]

5. I then turn to the submissions the applicant made at the hearing. The applicant may be taken to have made a number of claims. One is that the Tribunal did not consider the applicant’s claims or the matters the applicant said or submitted to the Tribunal in support of his claims. That is not arguable. It is beyond argument the Tribunal identified the applicant’s claims; and, as is apparent from my description of the Tribunal’s reasons, it is beyond argument the Tribunal considered those claims.

6. A second claim the applicant may be taken to have made at the hearing before me is that the Tribunal’s rejection of his claims was unreasonable and unjust. That is not arguable. It is beyond argument the Tribunal identified the applicant’s claims, it considered them, and gave reasons for not accepting them. It is beyond argument that it was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons it gave.

7. Finally, there is the potential claim that may arise from the applicant’s evidence that he told the Tribunal that he was always moving from one suburb to another between Beirut and Tripoli to avoid sectarian violence. It is not reasonably arguable that the applicant said any such thing to the Tribunal. The Transcript records no words to that effect; and the applicant said that the audio recording that he heard does not record any statement made by the applicant in Arabic at the hearing that he was always moving from one suburb to another between Beirut and Tripoli to avoid sectarian violence. The applicant also said that the only basis he said the audio recording was not a complete record of the hearing before the Tribunal was that it did not record that which the applicant recalls he said. In these circumstances, it is not arguable that the applicant did say to the Tribunal words to the effect that he was always moving from one suburb to another between Beirut and Tripoli to avoid sectarian violence.

8. Even if, however, it is arguable the applicant made such statement, his having made the statement could only have been relevant to the Tribunal’s assessment of the applicant’s state of mind, that is, his asserted subjective fear of significant harm if he returns to Lebanon. If, therefore, the applicant did make such statement, it could not arguably have affected the Tribunal’s decision because, for reasons that disclose no arguable jurisdictional error, the Tribunal was not satisfied that (objectively) the applicant faced a real risk of significant or serious harm if he were to return to Lebanon.

Other matters

1. Shortly after I left the bench, my associate informed me the applicant made an enquiry about whether he needed to appear on the day I had set down for delivering judgment. By that time, I was informed Ms He had left the court. I nevertheless decided to return to the bench and informed the applicant he did not have to appear on the day I had listed for delivering judgment, but I said I would consider the question of costs. I informed the applicant that the usual order was that the party who loses an application pays the other party’s costs. I invited the applicant to make submissions on the question of costs. The only submission the applicant made was that he had no working rights.

Conclusion and disposition

1. I am satisfied the applicant has no arguable case for the relief he seeks. I propose, therefore, to order that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 25 May 2018