Dor16 v Minister for Immigration

[2018] FCCA 1465

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1465

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse a Protection visa based on the applicant’s fear of harm in Lebanon because of his Sunni religion, imputed political opinions and as a failed asylum seeker – applicant fails to identify any jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), pt.7AA, ss.5, 46A, 476

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Applicant: DOR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3286 of 2016

Judgment of: Judge Dowdy

Hearing date: 2 August 2017

Delivered at: Sydney

Delivered on: 8 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms N. Laing

Solicitors for the First Respondent: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 24 November 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3286 of 2016

DOR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Lebanon aged 27 years, having been born on 24 July 1990.

2. By Application filed in this Court on 24 November 2016 he seeks to quash and have redetermined the decision of the Second Respondent, the Immigration Assessment Authority (IAA), dated 4 November 2016 (Decision Record) under Part 7AA of the Migration Act 1958 (Cth) (the Act) which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 19 August 2016 refusing to grant to him a Safe Haven Enterprise (Subclass 790) visa (Protection visa). 

Background

1. The Applicant arrived in Australia on or about 13 June 2013 from Lebanon via the United Arab Emirates, Malaysia, Indonesia and Christmas Island as an unauthorised maritime arrival.

2. On 18 April 2016 the Minister under s.46A(2) of the Act lifted the bar precluding the Applicant from making a valid application for a visa under s.46A(1) so as to permit him to apply for a visa of a specified class, which he did by making an application for a Protection visa on 30 June 2016.

3. The Applicant was a “fast track applicant” as defined in s.5(1) of the Act because he was an unauthorised maritime arrival:

   a)who entered Australia after 13 August 2012 but before 1 January 2014;

   b)who was not taken to a regional processing country;

   c)to whom the Minister had given written notice lifting the bar imposed by s.46A(1); and

   d)who made, as he did, a valid application for a Protection visa.

4. Part 7AA of the Act had established a comprehensive scheme commencing on 18 April 2015 for a limited review by the IAA of specified adverse Protection visa decisions, such as the adverse decision of the Delegate refusing to grant to the Applicant a Protection visa in this case.

5. I do not consider that it is necessary to generally detail and recite the provisions of Part 7AA of the Act because that task has been comprehensively performed by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 (AMA16) per Griffiths J at [11] – [27], with the agreement of Dowsett and Charlesworth JJ. This statement in AMA16 of the nature and scope of Part 7AA was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ.

Claims for Protection

1. In his statement of 30 June 2016 (Statement) which formed part of his Protection visa application the Applicant made the following claims:

   a)He was born in Akkar, Lebanon and is an Arab and a Sunni Muslim.

   b)Akkar is close to Lebanon’s border with Syria and the Applicant’s uncle was a member of a political party, the Ba’ath Party, which supported the President of Syria, Al-Assad and the Syrian regime. All members of the Applicant’s family follow the political line of the Ba’ath Party and support the Syrian regime. The Applicant was not registered with that party but supported its ideology. However he did not personally support the Syrian regime.

   c)The Applicant was a taxi driver in Lebanon after he turned 16 or 17 years of age for about 6 to 7 years. He is not well educated. There was an occasion where the Applicant was within 50m of a bomb explosion intended for Lebanese army military figures he was hoping to pick up, and a separate occasion where he was threatened with death by five men while driving his taxi.

   d)As a taxi driver he and fellow taxi drivers helped people from Syria cross the Syrian border into Lebanon.

   e)In about 2010 or 2011 the Applicant witnessed people trying to kill his uncle during a Ramadan celebration. He fears he will be killed because he is of the same family as his uncle.

   f)In August 2013 one of his brothers was involved in a hit-and-run incident with a car which bore no number plate in an area with little traffic congestion, in what he suspected was a targeted attack on his brother.

   g)The Applicant fears that he is being targeted due to his uncle’s involvement in politics.

   h)The Applicant fears being killed by supporters of the Syrian regime.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 8 July 2016 with the assistance of an interpreter in the Arabic and English languages.

2. The Delegate considered the Applicant’s claims under the headings of:

   a)fear of harm resulting from driving Syrian dissidents;

   b)fear of harm from being a taxi driver;

   c)death of the Applicant’s brother (in a hit-and-run incident);

   d)fear of harm for being linked with the Ba’ath Party;

   e)fear of harm from Alawites in Lebanon for being a Sunni;

   f)fear of harm due to the situation in Lebanon.

3. After considering the Applicant’s claims and country information the Delegate found that he would not face a real chance of being persecuted in Lebanon for any reason associated with the Applicant’s claims under the above headings and that he was not a refugee as defined by s.5H(1) of the Act. He further found that there was no real risk of significant harm under the complementary protection criterion if the Applicant returned to Lebanon and he refused to grant a Protection visa to the Applicant.

Decision of IAA

1. On 23 August 2016 the Minister referred the Delegate’s refusal of a Protection visa to the IAA.

2. At [4] of its Decision Record the IAA summarized the Applicant’s claims of fear of being harmed, as made in his Protection visa application and before the Delegate, as follows:

   a)by members of the opposing party in Lebanon to the Ba’ath Party because his family are supporters of the Ba’ath Party and his uncle a Ba’ath politician;

   b)by Ba’ath Party members who support the Syrian regime because he helped dissenters from the Syrian regime escape and the Applicant would be labelled a traitor to the Syrian regime because he would be perceived to have left the Ba’ath Party and come to Australia; and

   c)by persons on both sides of politics in Lebanon because people opposed to his families political views have accused his family of being non-religious and spoken bad words about them.

3. At [7] – [47] of its Decision Record the IAA recorded its consideration of the Applicant’s claims under the headings of:

   a)identity;

   b)imputed pro-Syrian political opinion;

   c)actual anti-Syrian regime political opinion;

   d)risks arising from being a driver for the Lebanese Armed Forces (LAF); and

   e)risk of harm arising from sectarian and insurgent violence.

4. The core findings of the Decision Record of the IAA were as follows:

   a)the IAA accepted that the Applicant’s family members, including his uncle, were pro-Syrian regime and supporters of the Ba’ath Party and that he might be imputed with a pro-Syrian political opinion (see [8]);

   b)the IAA was prepared to accept that someone tried to kill the Applicant’s uncle at a Ramadan gathering in 2010 or 2011, but found that the uncle was a public figure and a pro-Syrian regime advocate with a profile distinguished from that of the Applicant and there was no evidence of any further attempt on the uncle’s life and this attempt on the uncle’s life was not indicative of any risk to the Applicant (see [9] and [12]);

   c)the IAA accepted that the Applicant feared harm as a family member of avid Syrian regime supporters. However it reasoned that the Akkar province was predominantly Sunni and people in Akkar are generally pro-Syrian, so that an imputed pro-Syrian regime opinion would thus place the Applicant in the majority, including in step with Akkar’s Alawite community (see [17] and [18]);

   d)the IAA was not satisfied that the Applicant faced a real chance of harm in Akkar on the basis of his family’s pro-Syrian political opinion (see [20]);

   e)the IAA recorded that the Applicant claimed to have strong political views against the Syrian regime and the views of the Ba’ath Party and that contrary to his family beliefs he did not believe in the Ba’ath Party or in “the Syrian policy” and that he is “against everything that has to do with Syria” (see [21]);

   f)the IAA accepted that the Applicant was raised in a Ba’ath family but holds an antithetical political opinion to his family and does not align with the Ba’ath Party and resisted membership of the Ba’ath Party (see [22]);

   g)the IAA recorded that the Applicant confirmed that he had had no role in facilitating people to cross the Syrian and Lebanese border but only collected people once they had arrived on the Lebanese side of the border and then took them to a location within Lebanon, usually Beirut, and that the LAF did not know about his involvement in this regard (see [25]);

   h)the IAA was not satisfied that his brother, whom it was claimed had been targeted in a hit and run incident around the time the Applicant arrived in Australia, was targeted for any reason related to the Applicant (see [27]);

   i)the IAA recorded that the Applicant had not indicated that he ever wished to publicly speak out against the Syrian regime and the IAA was not satisfied that the reason he never did this was out of fear of being harmed (see [33]);

   j)the IAA was not satisfied there was a real chance of the Applicant being harmed in cross-border attacks from the Syrian authorities, or in retaliation by Lebanese or Syrian authorities or armed non-state actors in relation to his anti-Syrian regime opinion, or because of his lack of involvement with the Ba’ath Party (see [34]);

   k)the IAA was not satisfied that the Applicant would face a real chance of harm upon return to Lebanon because of his previous employment as a driver for LAF and that he did not have a well-founded fear of persecution arising from employment related matters upon return (see [37] – [38]);

   l)the IAA made the following finding in relation to risk of harm from sectarian and insurgent violence:

   [47]I am not satisfied that persons of the applicant’s profile (a Sunni Muslim who is has not been actively engaged with the Ba’ath party, or publicly voiced any political opinions, and whose activities driving Syrian dissidents away from the border have not come to the attention of the Lebanese or Syrian authorities, nor armed non-state groups, has no involvement in the neighbourhood rivalries in Tripoli and has not publicly renounced ISIS) are being targeted in Lebanon. Nor do I accept the applicant faces a real chance of harm from ISIS in the reasonably foreseeable future, or that protection would be selectively withheld from him. Even when these factors are considered cumulatively, I am not satisfied the applicant faces a real chance of harm from ISIS or sectarian violence within Lebanon.

5. Accordingly, the IAA found at [48] of its Decision Record that the Applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act and did not meet the Refugees Convention criterion.

6. The IAA then at [51] – [61] of its Decision Record set out its consideration of the Applicant’s claims under the complementary protection criterion and after considering these claims individually and cumulatively concluded at [62] of its Decision Record that the Applicant would not face a real risk of significant harm in the reasonably foreseeable future if he returned to Lebanon, and hence did not meet the requirements of the complementary protection criterion.   

7. Accordingly, the IAA affirmed the decision not to grant a Protection visa to the Applicant.

Grounds of Attack on IAA Decision in this Court

1. The Grounds relied upon by the Applicant were as follows:

   1. The Immigration Assessment Authority (the Authority) failed to see that I will be harmed if I return to Lebanon and my fear of harm is genuine.

   2. The Delegate failed to apply the law and misapplied the law by overlooking that I will be subjected to torture, cruel treatment and punishment as a result of my imputed political involvement.

   3. The Delegate misunderstood my well founded fear of harm and persecution.   

   Unfortunately at the hearing the Applicant was unable to make any meaningful submissions in support of his Grounds. I note that he did assert that because his own family in Lebanon supported the Syrian regime and he did not, he feared harm and that his life would be in danger from his own family back in Lebanon. I am satisfied that the Applicant has never made any such suggestion or claim in the past and he is not entitled to raise and rely upon that claim now in this Court.

Consideration

Ground 1

1. This Ground seeks to invoke in the most general terms an impermissible merits review of the IAA’s decision, which is not available in this Court. Ground 1 fails to establish that the decision of the IAA is affected by jurisdictional error.  

Grounds 2 and 3

1. These Grounds attack the decision of the Delegate. However, this Court has no jurisdiction to review that decision, which was a primary decision and review of which is precluded by s.476 of the Act. Nevertheless, assuming in the Applicant’s favour that these Grounds are to be taken as attacking the decision of the IAA, they still each fail to establish that the decision of the IAA is affected by jurisdictional error.

2. As to Ground 2, I am of the view that the IAA did not fail to apply or otherwise misapplied the law, as asserted in this Ground. At [5] – [6], [48] – [50] and [63] of its Decision Record the IAA specifically referred to the applicable statutory provisions relating to the Refugees Convention criterion and the complementary protection criterion and attached at pages 15 to 18 the relevant statutory provisions. At [50] of its Decision Record the IAA specifically referred to “significant harm” as including “torture” and subjection “to cruel or inhuman treatment or punishment”. The IAA then went on in its Decision Record to analyse, consider and determine the Applicant’s claims to protection in a way that in my view cannot be considered as “arbitrary” or “irrational” or as lacking an “evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 297 ALR 225.

3. As to Ground 3 the Applicant has failed to establish that the IAA misunderstood his claims, including his claim to have a well-founded fear of harm and persecution if he returned to Lebanon.

4. I note that at the hearing I enquired of Ms Laing, who appeared for the Minister, whether as a model litigant the Minister was aware of any particular problematic aspects to the decision of the IAA which might tend to establish or raise issues going to jurisdictional error and she responded that nothing of that nature had been identified by the Minister in this case. I for myself also have not been able to discern or identify jurisdictional error affecting the decision of the IAA.

5. In my view both Grounds 2 and 3 fail to establish jurisdictional error.

Conclusion

1. The Applicant has failed to establish that the decision of the IAA is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 8 June 2018