Dow17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 162
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DOW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 162
File number: MLG 1728 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 15 March 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – where audio recording of arrival interview not provided to Authority by Secretary - whether there was non-compliance with s 473CB of the Migration Act 1958 or failure to undertake reasonable searches – whether failure to provide audio recording of arrival interview had a material effect on Authority’s statutory task – whether the Authority acted irrationally or unreasonably in treating summary notes of arrival interview as an exhaustive transcript or making adverse findings in the absence of audio recording or transcript – whether Authority failed to conduct a forward looking assessment of whether the applicant would face a real risk of significant harm – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5AA, 36, 46A, 473CA, 473CB, 476, 477 Cases cited: ARG15 v Minister for Immigration (2016) 250 FCR 109; [2016] FCAFC 174
AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82; [2019] FCAFC 222
BIR17 v Minister for Immigration and Border Protection [2019] FCA 850
BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
Minister for Home Affairs v AYJ17 (2019) 165 ALD 64; [2019] FCA 591
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58
Minister of Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; [1997] HCA 22
MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80
NAHIv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of hearing: 4 March 2022 Place: Perth Counsel for the Applicant: Mr A McBeth Solicitor for the Applicant: Bardo Lawyers Counsel for the First Respondent: Ms K Chan Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 1728 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DOW17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 LADHAMS:
INTRODUCTION
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 5 July 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
For the reasons outlined below, I find that the applicant has not established jurisdictional error in the Authority decision.
BACKGROUND
The applicant is a citizen of Lebanon who is a Sunni Muslim. He entered Australia in June 2013 as an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 21 June 2013 the applicant participated in the first part of an ‘Unauthorised Maritime Arrival and Induction Interview’ (arrival interview). During part 1 of the arrival interview the applicant was asked questions about why he left Lebanon and he gave answers to those questions.
Following the arrival interview, the applicant was ‘screened out’ in the sense that he was found not to engage Australia’s protection obligations. He then, on or about 3 September 2013, provided a statement to the Minister’s Department claiming that there was a further important issue which prompted him to come to Australia. In summary, the applicant claimed that he was approached by two sheikhs who were Salafists. He claimed that they asked him to join their ranks and go with their supporters to war in Syria and that they threatened him with death when, a few days later, he declined to join them.
On 25 July 2016 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 11 October 2016 the applicant lodged a valid application for a Safe Haven Enterprise Visa, which is a type of protection visa. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant repeated the claim he made in September 2013 to fear harm from a Salafist group as a result of his refusal to join them. He also claimed that his cousin was kidnapped by Salafists and beheaded in 2014.
On 28 February 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview). At the protection visa interview, the applicant was asked about why he had not raised his claim to fear harm from Salafists at his arrival interview. Following the protection visa interview, the applicant was given a further opportunity to explain this, and he provided a submission and statutory declaration to the Department on 13 March 2017.
On 3 May 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 5 July 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
AUTHORITY DECISION
Threat by Salafist group
The Authority noted that the applicant did not raise his claim relating to the attempted recruitment and threats by Salafists until after he was informed that he had been screened out. The Authority considered the reasons advanced by the applicant as to why he did not raise this claim in his arrival interview, including his fear for his family at the hands of terrorist groups if his claims became known, and that he only felt safe to make his new claims after other immigration detainees told him that his information would not be reported to Lebanon.
The Authority acknowledged that there was no audio recording of part 1 of the arrival interview and took into account the written record of the arrival interview. While acknowledging that the applicant was only asked to give brief details of his claims at the arrival interview, the Authority also took into account that the applicant referred only to economic and general issues in Lebanon as his reason for leaving, and did not indicate that he experienced any sort of personal danger or had any fears for his family. The Authority was satisfied that the applicant had been advised of and understood that his information and claims would be handled confidentially and would not be reported back to Lebanon. The Authority was also satisfied that the applicant was told and understood that he was expected to give true and correct answers and that if he gave different information at a future interview, this could raise doubts as to the reliability of his claims and lead to refusal and removal. The Authority did not accept that the applicant only understood that his claims would be kept confidential after being told this by other detainees.
The Authority considered that there were inconsistency and plausibility issues in relation to the applicant’s claim and evidence before the delegate which caused the Authority to question the genuineness of the claim. In summary:
(a)The applicant told the delegate that he fled Lebanon without telling any of his family. However, in his arrival interview he said that he had travelled to Australia with his cousin and, in the second part of his arrival interview, he said that his father had arranged payment to the people smuggler and his uncle had driven him to the airport.
(b)The applicant told the delegate that officials in Indonesia stopped him, confiscated his passport and demanded a bribe. He had not previously mentioned this incident and had previously said that the boat crew had taken everyone’s passports and thrown them into the sea. The Authority found that the applicant had changed and developed his evidence before the delegate to support and enhance the new claim.
(c)The Authority considered that the applicant’s evidence to the delegate that:
(i)he did not know the sheikhs until the day at the mosque;
(ii)some days later, one of the sheikhs called him at his home but he does not know how the sheikhs got his number;
(iii)the sheikh told the applicant to be ready to go to Syria in two days; and
(iv)when the applicant said he was not going, the sheikh said he knew too much about the sheikhs and the group and that he would be killed,
would suggest the applicant was a person of significance to the sheikhs. The applicant’s evidence was that the sheikhs did not call his home again to look for him or try to obtain his address or visit his house, and they have not made any enquiries about him since he left Lebanon, nor have they approached or threatened his family. The Authority did not consider it plausible that the sheikhs would not have taken steps to locate the applicant when he said he was not going to Syria, if the applicant had the profile he claimed. The Authority also did not consider it plausible that if the applicant was seen as a threat to the sheikhs, they would not take steps to locate him or threaten him to remain silent.
(d)The applicant’s evidence to the delegate that the meeting at the mosque and telephone call happened only a few days before he left Australia suggests a degree of urgency in fleeing from the claimed threat, but at the arrival interview the applicant said that he had begun planning to leave Lebanon about two weeks before he departed and that he obtained a passport during this period. The Authority considered it implausible that the applicant would have the time and inclination to arrange a passport and to travel with his cousin if he was fleeing to save his life.
The Authority expressed its conclusion about this claim at [19] where it said:
Having considered all of the evidence and information before me, I do not accept the applicant’s explanation for not raising the claim in relation to the recruitment and threats at an early opportunity. I consider that the details provided by the applicant are inconsistent and implausible and I have significant doubts as to their genuineness. I also consider that this indicates that evidence was being given to address questions and concerns, rather than being the true narrative of events. Considering all of the above, I find that the applicant has fabricated this new claim after being told that he did not have grounds for a protection visa application. I find that the attempted recruitment did not occur and that he was not subject to any threats by any person or groups. I find that the applicant does not face a real chance of serious harm at the hands of any Salafist, terrorist, extremist or other organisation arising from this claim.
Death of cousin
The applicant claimed that his cousin was beheaded by a terrorist group in 2014. The Authority was prepared to accept that the applicant may have had a relative in the Lebanese Armed Forces who was killed by persons unknown in 2014. However, the Authority was not satisfied that this incident was related to the applicant in any way or that he faced any harm from those responsible, or from any other persons, terrorist or extremist group for any reason.
Economic harm
The Authority did not accept that the applicant would face a real chance of serious harm on the basis of the economic situation in Lebanon or due to the influx of the Syrian refugees. The Authority accepted that there were high levels of unemployment in Lebanon, but was satisfied that the applicant has obtained employment in the past and has skills that would assist him to obtain employment should he return to Lebanon.
Harm from generalised violence
The Authority had regard to a report prepared by the Department of Foreign Affairs and Trade (DFAT) regarding the security situation in Lebanon. The Authority noted DFAT’s assessment that Sunni Muslims in most areas of Lebanon face a low risk of violence or harm unless they are involved in fighting. The Authority then considered whether the applicant would face an increased general risk as a result of his home village being close to the Syrian border. The Authority referred to DFAT’s assessment that, while security in the border regions is more complicated, Sunni communities in the border regions face a low risk of violence, including cross-border violence, unless the community is perceived to be anti-Syrian or harbouring opposition fighters. The Authority also referred to DFAT’s assessment that the incidence of sectarian and extremist violence impacting civilians has decreased since 2013, but terrorist organisations such as Daesh and Jabhat al-Nusra still have capacity and influence in Lebanon and civilians may face a moderate risk of violence depending on their location. The Authority noted DFAT’s assessment of the potential for Daesh and Jabhat al-Nusra to launch attacks in Sunni areas as unlikely.
The Authority considered that the applicant has not claimed that any extremist group has perpetrated any acts of violence in his village or local area, or that he or any member of his family has been affected by any violence, sectarian tensions or conflict in the village or wider area. The Authority was satisfied that the applicant and his family have not been harmed or suffered any form of harassment, violence or interference from any person or organisation in Lebanon in the past. The Authority found that there was no change in the risk of harm or conditions of the applicant’s district that would give rise to a real chance of serious harm on the basis of sectarian or extremist violence or activities, should he return to Lebanon.
Returned asylum seeker
The Authority also found that the applicant did not have any profile that may bring him to the attention of the authorities or any terrorist or extremist organisations as a returned asylum-seeker.
Authority’s conclusion
Based on the findings of fact summarised above, the Authority was not satisfied that the applicant met the refugee criteria in s 36(2)(a) or the complementary protection criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The applicant filed his application for judicial review on 8 August 2017. This is within 35 days of the date of the Authority decision as required by s 477(1) of the Migration Act.
By amended application filed on 4 February 2022, the applicant raises three grounds of review:
1.The breach of s 473CB by the Secretary, in failing to provide the audio of the arrival interview to the IAA, or failing to conduct a reasonable search to locate the audio of the arrival interview, caused the review by the IAA to miscarry.
Particulars
a.A recording of the applicant’s arrival interview on 21 June 2013 was made by an officer of the Department and was in the Secretary’s possession and control.
b. The recording was relevant to the review.
c.In breach of s 473CB, the Secretary failed to provide the audio recording to the IAA.
d.The failure to provide the audio recording was material to the IAA’s decision.
2.The IAA acted irrationally or unreasonably in treating the summary notes of the arrival interview as if it were an exhaustive transcript, and/or in making adverse findings regarding what was supposedly said in the arrival interview in the absence of an audio recording or a transcript.
Particulars
a.The IAA did not have access to an audio recording of the applicant’s arrival interview on 21 June 2013 or a transcript of the arrival interview.
b.The IAA erroneously treated the written summary notes of the arrival interview as if they were an exhaustive transcript of the arrival interview.
c.The reliance by the IAA on supposed statements and omissions by the applicant in the arrival interview was irrational, in that those findings could not rationally be supported by the summary notes on which the IAA relied.
d.Further and alternatively, it was unreasonable for the IAA to make adverse findings based on what was supposedly said and not said in the arrival interview in the absence of an audio recording or a transcript.
3.The IAA failed to give proper consideration to whether the applicant faced a real risk of significant harm on return to his home area in Lebanon on the basis of sectarian or extremist violence or the Syrian civil war.
Particulars
a.The IAA acknowledged that there was a risk of violence in the form of sectarian or extremist violence or in connection with the Syrian civil war in certain parts of Lebanon.
b.The IAA failed to consider whether there was a real risk of the applicant suffering significant harm as a consequence of being returned to his home area of Lebanon as part of the complementary protection assessment.
The applicant filed written submissions on 4 February 2022 and the Minister filed written submissions on 18 February 2022. The matter came before me for hearing on 4 March 2022. The applicant was represented by Mr Adam McBeth and the Minister was represented by
Ms Kay Chan.
GROUND 1
Applicant’s submissions
The applicant submitted that the Secretary breached s 473CB of the Migration Act by:
(a)failing to provide the audio recording of part 1 of the arrival interview to the Authority, as part of the material in the Secretary’s possession or control that is considered by the Secretary, at the time of the referral, to be relevant to the review, as required by s 473CB(1)(c); or
(b)failing to conduct a reasonable search to locate the audio recording of part 1 of the arrival interview.
The applicant submitted that the breach caused the Authority to miscarry its review of the delegate’s decision.
The applicant relied on the Full Court of the Federal Court’s judgment in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82; [2019] FCAFC 222 (AUF18) at [6], where the Full Court found that s 473CB(1)(c) imposed an obligation on the Secretary to take reasonable steps to locate potentially relevant documents in the Department’s possession or control.
The applicant referred to email correspondence between the Authority and the Department and submitted that, based on this correspondence, the Secretary failed to provide the audio recording of part 1 of the applicant’s arrival interview conducted on 21 June 2013 and failed to conduct reasonable searches to locate the audio recording. The applicant referred to an email suggesting that the audio recording was not saved in the Total Records Information Management (TRIM)[1] folder relating to the boat on which the applicant arrived. The applicant submitted that the Secretary was required to conducted reasonable searches beyond ‘merely looking in one folder of the TRIM database’.
[1] I understand TRIM to be the document management system used by the Department.
The applicant submitted that the absence of the audio recording was material to the Authority’s decision as the applicant’s failure to raise his claim to have been threatened by Salafist extremists in his arrival interview was the principle basis for the Authority’s finding that the claim was fabricated.
In oral submissions, Mr McBeth submitted that the Authority had proceeded on the basis that the applicant’s failure to mention the claim at his arrival interview was dispositive of the truth of the claim. Access to the audio recording would have shown not only the exact answers of the applicant, but also the manner and tone in which the questions about why he left Lebanon were asked.
Minister’s submissions
The Minister submitted that, following the decisions in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58 (AWT19) and BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 (BRH18), it is not necessary for the Court to make a specific finding on whether there was a breach of s 473CB(1)(c) of the Migration Act. The Minister accepted that the audio recording of part 1 of the arrival was not provided to the Authority, and submitted that the issue is whether the ‘informational gap’ had any effect on the Authority’s performance of the statutory task.
The Minister submitted that the missing audio recording had no material effect on the Authority’s decision because:
(a)the claimed threat from the Salafists was not raised at the arrival interview;
(b)the Authority rejected the reasons given by the applicant for not raising the claim at the arrival interview and it was open to the Authority to do so; and
(c)there is no basis in the Authority’s reasons or other materials before the Court to consider that the applicant’s explanation may have been differently assessed by the Authority if it had access to the audio recording.
Resolution
In addressing this ground, it can readily be accepted that:
(a)The audio recording of part 1 of the arrival interview was not provided to the Authority. This is accepted by both parties and, in any event, can be seen from the multiple requests that the Authority made to the Department for a copy of the interview. The Authority also expressly stated at [11] of its reasons that it did not have a copy of the audio recording of part 1 of the arrival interview.
(b)The audio recording of part 1 of the arrival interview was relevant to the review conducted by the Authority. This can be seen from the relevance of the written record of the interview to the decision made by the Authority.
(c)If the audio recording of the arrival interview was in the Secretary’s possession or control at the time of the referral to the Authority, the Secretary was required to provide the audio recording to the Department: s 473CB(1)(c) of the Migration Act.
(d)The Secretary had an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control: AUF18 at [6] and [70].
I do not have sufficient evidence before me to find that the audio recording was in the possession or control of the Department or Secretary at the time of the referral to the Authority. Neither party has adduced evidence of whether or not the audio recording is available or the steps that the respective party has taken, if any, to try to ascertain whether the audio recording is available.
I am unable to conclude from the delegate’s decision whether the delegate had access to the audio recording of the arrival interview. Rather, the best evidence I have before me of whether the audio recording was in the Secretary’s possession or control at the time of the referral is an email from a Departmental officer to the Authority dated 4 July 2017, which forwards an email from another Departmental officer which states, ‘I can therefore confirm to the IAA that there is no saved recording of the Part I, dated 21 June 2013’. While this may seem to be a complete answer, the email does not describe the extent of the searches conducted.
I am also unable to conclude, based on the evidence before the Court, whether the Secretary took reasonable steps to locate the audio recording of the arrival interview. There were a number of requests by the Authority to the Department for a copy of the audio recording. The only evidence before the Court that refers to steps taken by the Department to locate the audio recording is in the email forwarded to the Authority on 4 July 2017, which I have referred to in the previous paragraph. The relevant parts of that email are set out below, with the exception of information which might be used to identify the applicant or Departmental officers, which I have chosen not to reproduce (emphasis added):
There are two recordings kept in TRIM based on Boat ID [applicant’s boat ID number], Part 2 recorded by [Department officer name 1] at Curtin on 4 July 2013, and Part 2 recorded by [Department officer name 2] at Yongah on 25 October 2013. I can find no copy in TRIM of the Part 1 interview conducted on CI by [Department officer name 3].
There is no Part I saved in the [boat name] folder in TRIM [file number].
I can therefore confirm to the IAA that there is no saved recording of the Part I, dated 21 June 2013.
This extract confirms that the officer searched for the audio recording of part 1 of the arrival interview in the TRIM folder named after the boat on which the applicant travelled to Australia. It does not show whether or not the officer conducted other searches within TRIM, or the extent of the searches relied upon to reach the conclusion that the officer could find no copy of the part 1 interview in TRIM. The extract also fails to disclose the extent of any previous searches undertaken by this officer or other Department officers, such as when the original bundle of review materials was provided to the Authority in accordance with s 473CB of the Migration Act.
Evidence about the extent of the searches undertaken to locate review material is within the Minister’s power to provide. The Minister has not provided any evidence of this. The applicant, who has the onus of proof in judicial review proceedings, has not filed any evidence of steps taken to ascertain any relevant information from the Department or the Minister. I can form no view on the evidence before me as to whether reasonable steps were taken to locate the audio recording of part 1 of the arrival interview.
The Minister has submitted that I do not need to make any finding about whether there has been any non-compliance with s 473CB(1)(c) of the Migration Act. Rather, the Minister submitted that the main issue is whether the missing audio recording had any material effect on the Authority’s statutory task. For the reasons set out in the following paragraphs, I find that if there was a breach of s 473CB, it was not material.
First, the main relevance of part 1 of the arrival interview to the Authority’s review in the present matter was the Authority’s reliance on the applicant’s failure to raise his claim to have been approached and threatened by Salafists as one of the reasons for not accepting that claim. There is no suggestion by the applicant that he did in fact raise that claim. The claim was first presented to the Department in September 2013 with an acknowledgement that the applicant had not raised it previously. The applicant was invited by the delegate to address, orally and in writing, his reasons for not raising this claim at his arrival interview and did not, at any stage, dispute that he did not raise the claim. Had he raised the claim, either specifically or at a higher level of generality, at the arrival interview, it can be expected that the applicant would have said this in his submissions and evidence to the delegate. There is no realistic possibility that the audio recording, if available, could have shown that the applicant did raise the claim to have been approached and threatened by Salafists.
Second, if there was anything in the conduct of the arrival interview that influenced the applicant’s decision not to raise his claim to have been approached and threatened by Salafists, it can be anticipated that the applicant would have said so in at least one of his three separate explanations to the Department as to why the claim was not raised previously. He did not.
Third, when the matter was before the delegate and the Authority, the applicant never disputed the accuracy of the summary in the written record of the arrival interview of his responses to the question, ‘Why did you leave your country of nationality (country of residence)?’. This summary reads:
The problems in Tripoli, we couldn’t get to our work. We can’t get out at night. Because of people from Lebanon and Syria and Shia.
Where were you working? Beirut
Doing what? Carton factory
Why couldn’t you go out at night? Because there’d be a lot of Syrian and murder used to happen.
Village close to Tripoli? no – a bit far away but we had to pass in Tripoli to get to work.
Were people from Lebanon and Syria and Shia causing you problems? yes
In what way? The Syrians were shelling the north of Lebanon and there was a war religious between Sunni and Shia and we were living not far from the border between Syria and Lebanon.
Was there a specific incident that affect you to make you leave Lebanon? no
Was the village you lived in affected by the war in Syria? yes
In what way? The Syrian used to come to our village like running away from the fight in Syria
So you mean asylum-seekers? yes
Is that the only reason you left? not only that, we used to work the city and used to work for lesser wages than us. We were losing our job because the Syrian were working for less wage.
What did you hope for by coming to Australia? i’m here to work, to get citizenship
This summary was provided to the applicant in an email sent by the delegate after the protection visa interview, and the applicant was invited to comment again on why he did not raise the claim about the Salafists in his arrival interview. In response, the applicant provided a statutory declaration and a submission from his representative. The applicant did not state that the summary in the written record of the interview was not accurate. To the extent that his submissions to this Court question the accuracy of the summary, they are speculative and suggest that we cannot know, in the absence of the audio recording, whether or not the answers were complete. It is true that, in the absence of the audio recording, it is not possible to ascertain the level of specificity of the summary. However, I am unwilling to find that the summary is inaccurate or incomplete based purely on speculation, and without any evidence from the applicant that the summary does not accurately or completely reflect what he said at the arrival interview in response to the relevant questions. Also, I cannot conclude on the evidence before me that the Authority’s interpretation of the information in the written record of the arrival interview could realistically have been different if the audio recording had been provided to the Authority.
In these circumstances, I find that the failure to provide the Authority with a copy of the audio recording of part 1 of the arrival interview could not realistically have deprived the applicant of the opportunity of a successful outcome. It follows that ground 1 cannot succeed, and it is not necessary for me to form any conclusive view as to whether the audio recording of part 1 of the arrival interview was in the Secretary’s possession and control at the time of the referral or whether the Secretary had taken reasonable steps to locate the interview.
GROUND 2
Applicant’s submissions
The applicant submitted that that Authority erred in relying on the summary of written notes from part 1 of the arrival interview and the omission of the description of the encounter with Salafists for two reasons.
First, the applicant submitted that the Authority erred by relying on the written summary of the arrival interview as though it were a complete transcript, when it was not and did not purport to be a full transcript of the arrival interview. The summary of written notes is incomplete and does not record matters that give context to the arrival interview such as manner, tone, rapidity of questioning, hesitation, difficulty in understanding and demeanour. Such matters would inform the extent of the opportunity afforded to the applicant to provide an expansive narrative about his reasons for leaving Lebanon as well as the extent to which he was evasive, or conversely, the extent to which he was cut off or discouraged from giving longer answers.
Second, the applicant submitted that the Authority misunderstood the nature and purpose of the arrival interview in the same way described in Minister for Home Affairs v AYJ17 (2019) 165 ALD 64; [2019] FCA 591 (AYJ17). In AYJ17, Moshinsky J found that it was illogical or irrational for the Authority to reject a claim by the visa applicant concerning the death of his brother on the basis that it was not mentioned at the arrival interview. His Honour took into account that the purpose of the arrival interview was not to obtain a detailed description of the visa applicant’s claim and that the visa applicant’s response as to why he left his country of nationality was a high-level summary that was capable of encompassing his claim regarding his brother’s death: at [41]-[42].
The applicant also referred to MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436; [2014] FCAFC 80 (MZZJO) to suggest that the reliance by the Authority on a failure to mention something in an arrival interview, without proper regard for the nature and purpose of the arrival interview, can constitute a misunderstanding of the task of review and thus jurisdictional error. The applicant submitted that the description in MZZJO of the fears that a newly arrived asylum seeker may have when interviewed by an immigration official correlate closely to the present applicant’s explanation for not mentioning the claim to have been approached and threatened by Salafists at the arrival interview.
The applicant also submitted that the Authority failed to have regard to the prospect that the killing of the applicant’s cousin crystallised his fear of harm from his encounter with Salafist militants by the time of his visa application beyond that which he felt at the arrival interview.
In his oral submissions, Mr McBeth submitted that the additional reasons given by the Authority for rejecting the applicant’s claim to have been approached and threatened by Salafists were not an independent basis for rejecting the claim.
Minister’s submissions
The Minister submitted that the applicant has not identified any particular aspect of the summary notes of the arrival interview that, if supplemented by the audio recording, could have caused the Authority to have come to a different conclusion.
The Minister submitted that MZZJO and AYJ17 do not stand for the proposition that, regardless of the circumstances, relying solely or primarily on the absence of claims from an arrival interview is a jurisdictional error. The Authority’s reasons in the present matter confirm that there were multiple other grounds upon which it founded its decision, including instances of inconsistency and implausibility.
The Minister submitted that the Authority did not reject outright the applicant’s claims to be owed protection based solely or primarily on the basis of the applicant’s omissions in the arrival interview, and did not err in the way identified in MZZJO and AYJ17.
Resolution
I first deal with the applicant’s submission that the Authority erred by treating the written record of the interview as though it was a transcript. Notwithstanding that the Authority referred to the written record of the arrival interview as an ‘interview transcript’ in its reasons, it is unclear whether the Authority thought that the written record was a transcript or simply a summary. In my view, nothing turns on this. There is nothing in the Authority’s reasons that would suggest that the Authority did not consider the written record of part 1 of the arrival interview to contain an accurate and complete account of the applicant’s answer to the question of why he left his home country. In these circumstances, whether or not the Authority considered it to be a transcript is immaterial.
The key issue is whether or not it was acceptable for the Authority to rely on the written record of part 1 of the arrival interview in the way that it did. The written record, even if accurate and complete insofar as it records the words spoken by the applicant, is not as comprehensive a record of what happened at the arrival interview as the audio recording would be. In the absence of an audio recording, it was impossible for the Authority to know, based on the material before it, whether the applicant’s answers in the interview as to why he left his home country were recorded verbatim or paraphrased. The Authority also did not have a record of those matters that are not readily recorded in a written summary such as the tone used, the length of pauses and whether the applicant appeared to have any difficulty understanding the questions put to him. For these reasons, in many cases it may be appropriate for an administrative decision-maker to proceed with some caution before relying solely on a written record of an interview.
In the circumstances of this particular case, however, I find that the Authority’s reliance on the written record of part 1 of the arrival interview does not amount to jurisdictional error.
An important feature of this case is that the applicant had a number of opportunities to comment on his failure to raise at the arrival interview his later claim to have been approached and threatened by Salafists. The applicant first commented on his failure to raise this issue at the arrival interview in his statement provided to the Department in September 2013. In this statement, the applicant said:
I did not mention this reason because of my great fear for my family from any damage that would come to them in case of the spreading of this information to those terrorist groups who do not know anything except killing and destruction.
The applicant was invited to comment at the protection visa interview on his failure to mention his claim at the arrival interview. A transcript of the protection visa interview is not available to the Court. The delegate’s decision record suggests that the applicant told the delegate he had been very concerned that his claims might become known in Lebanon and that his family would face some problems. The applicant also suggested that due to his young age at the time, he had not fully matured.
As indicated at [40] above, following the protection visa interview, the delegate sent an email to the applicant setting out the information recorded in the written record of part 1 of the arrival interview in relation to his response when asked why he left his home country. The applicant was invited to comment on why he did not mention at the arrival interview his claim to have been approached and threatened by Salafists and was advised that his failure to raise the claim earlier raised doubt that his claim was genuine. In response, the applicant provided a statutory declaration made by him on 10 March 2017. The statutory declaration set out the following information which is relevant to the resolution of this ground (reproduced without alteration):
2.… I left lebanon in 2013 because I was threatened by the Salafists. Two members of the Salafists group approached me and asked me to fight with them in Syria against the Syrian Regime, I refused and I fled the country when I could.
3.I did not tell the department about those claims that when I was interviewed in Christmas Island because I was very scared that some of the information I say would somehow find its way back to Lebanon. I was not thinking of the consequences but I was still very scared and traumatisd from all the pressure I felt from those men, I was also very frightened as a result of my journey to Australia.
4.In Indonesia I was held up by the Indonesian police because I did not hold a visa, I was detained for 10 days and I had to pay them US$2500 for my release.
5.I then arrived in Australia and I was taken to Christmas Island and put in detention. It felt like prison I was scared, tired and confused.
6.When I was being interviewed I was not sure what to say, I was 18 years old and I had never been interviewed before in my life. I did not tell the case officer about my real fears that made me leave Lebanon. After the initial interview was assessed I was told that I did not have enough grounds for a protection application. I started thinking about the consequences of being sent back to Lebanon. I knew I would be facing serious harm.
7.I was transferred to another detention centre in Perth and that is where I was told that my application was refused. I was very sad and in discussion with other detainees I told them what had happened. They told me that the Australian immigration officers will not tell anyone about my claims and that those Islamic groups will not be told. I then decided to give a new statement to the case officer.
8.My second statement that I gave in Perth detention centre is true and correct. I would like to note that this doesn’t meant the information I gave in my first interview were incorrect, the information I gave were incomplete due to the reasons I explained above. I would like to go some of those matters:
9.There were lot of trouble because of he presence of forerign people in the area. Lot of Syrian refugees started to come in to North Lebanon and it was unsafe for us to go out at night. Our village is close to the Syrian borders and our area was affected by the trouble that was happening.
10.Those Syrian refugees and othe groups were not the cause of my direct fear and that is not why I left Lebanon. Their presence affected me as much as any other person in my village but I left because of specific threats I received from [the two sheiks].
11.In answer I said that there were no specific incidents that made me leave Lebanon and that answer by me was not true. I was not sure how much information I could give.
12.In answer I also said that my village was affected by the war in Syria and that answer was true. In my recent interview on the 28 February 2017 I said that it is not. I was confused and overwhelmed I did not know what I was saying. But my village was and has been affected by the war in Syria.
13.I also stated in answer that Syrian presence was not the only reason I left Lebanon, I also left because the Syrians work for much less wages than Lebanese leaving lower opportunities for the Lebanese people. That statement was true.
…
The applicant also provided a submission from his representative that referred to some of the information provided in the statutory declaration.
It is clear from the above extracts that the applicant did not ever suggest to the Department or the Authority that his failure to refer at the arrival interview to his claim to have been approached and threatened by Salafists was because of the way in which the interview was conducted. For example, the applicant did not suggest that his failure to refer to the claim was because he was not given an opportunity to explain his reasons for leaving Lebanon. Nor did he suggest that there was anything in the way the questions were asked that prevented him from giving a complete answer. Importantly, the applicant did not suggest that the written record of his answers at the arrival interview to questions about why he left Lebanon was inaccurate or incomplete insofar as it recorded the answers he gave at that interview. Rather, he admitted in his statutory declaration that the some of the answers he gave were not accurate or complete, and he supplemented or corrected the information that he did not accurately or completely relay at the time of his arrival interview.
The applicant clearly accepted that he did not at the arrival interview raise his claim to have been approached and threatened by Salafists. He did not claim that this incident was encompassed by anything more general that he said at the arrival interview.
Mr McBeth for the applicant submitted that the Authority’s reliance on the answers set out in the written record of part 1 of the arrival interview reflected a misunderstanding that the written record was not a complete transcription of the words spoken by the applicant. Mr McBeth further submitted that the Authority’s interpretation of the answers recorded in the written record was potentially inaccurate in any event. These submissions were based on [12] of the Authority’s reasons, where the Authority said:
I take into account that the initial interview asks for brief details of an applicant’s claims and may not necessarily contain all of the detail that comes out in later interviews. However, I also take into account that the applicant referred only to economic and general issues in Lebanon as his reason for leaving. He did not at any time indicate that he was suffering any sort of personal danger or that he had any fears for his family. When he was asked whether there were any specific incidents that led to him leaving Lebanon, he said no. The interviewing officer then asked specifically why he left Lebanon and the applicant said that “we were losing our job because the Syrians (Syrian refugees) were working for less wage.” The applicant said that he had come to Australia to work and to get citizenship. The interviewing officer then asked what the applicant thought would happen if he went back to Lebanon and the applicant replied that he did not know. He also said that there were no armed groups, political groups or religious groups operating in the area where he lived. When the applicant was asked if he had anything further to say he said that he wanted to stay in Australia and not be taken anywhere else.
In the light of the applicant’s statutory declaration, I do not accept that the Authority erred by treating the written record of part 1 of the arrival interview as a complete and accurate record of the answers given by the applicant when asked why he left his home country. Had the applicant considered the record of his answers to be inaccurate, it can be expected that he would have said so. In any event, no evidence has been provided to the Court to suggest that the record of answers is incomplete or inaccurate, and the only suggestion that the answers are not accurate or incomplete is the speculation on the part of the applicant’s counsel.
I also do not accept that the Authority has misconstrued or misinterpreted the written record of the answers that the applicant gave at his arrival interview. The applicant submitted in oral submissions that the Authority’s reference to the applicant having raised only ‘economic and general issues’ overlooks the concern the applicant expressed for his personal safety, for example by the suggestion that it was too dangerous to go out at night. It was submitted that it was unreasonable for the Authority to say that the applicant raised only economic and general issues, particularly when the Authority could not know how complete the summary was. I do not consider that the reference to ‘economic and general issues’ overlooks the possible safety issues referred to in the summary. When reading the Authority’s reasons as a whole, I do not understand the phrase ‘general issues’ to exclude security or safety concerns. Rather, the term is used by the Authority to refer to issues facing the population at large as opposed to threats to the applicant personally. This is also consistent with the clarification that the applicant gave in his statutory declaration, which was before the Authority.
Any disadvantage that the Authority may have faced by not having the audio recording of part 1 of the arrival interview has been mitigated by the applicant having the opportunity to comment on the arrival interview and the reasons for the omission. In the light of the explanations given by the applicant, there was no reason for the Authority to believe that the applicant’s answers given at the arrival interview were not accurately and completely recorded in the written record of the arrival interview. There was also no reason for the Authority to believe that any information that would be apparent from the audio recording, but not from a transcript or written record, such as tone and momentum, would have materially altered the Authority’s view of the applicant’s answers at the arrival interview. The Authority took into account the applicant’s explanations for not raising at his arrival interview his claim to have been approached and threatened by Salafists. It rejected those explanations. The Authority’s rejection of the applicant’s explanations is not challenged in this judicial review proceeding.
I also do not accept that the Authority has acted unreasonably or has misunderstood the purpose of the arrival interview.
In MZZJO, the Full Court of the Federal Court provided the following caution about reliance on what is said or omitted at arrival interviews:
56. … some caution should be expressed by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview context concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
57.Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived in the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
Justice Charlesworth referred to these paragraphs of MZZJO in BIR17 v Minister for Immigration and Border Protection [2019] FCA 850 and said at [45]:
The obiter remarks of the Court in MZZJO are concerned with matters that may affect the relative weight that might be afforded inconsistencies or omissions founded on things said or not said by a visa applicant at an arrival interview. Read in the context of what is said at [57], the Court in MZZJO should be understood at [56] to be cautioning a decision-maker against rejecting outright a person’s claim to be a refugee by reference solely to omissions or inconsistencies arising from arrival interviews in fact having features mentioned in that paragraph. In such a case, the existence of the factors may result in the arrival interview affording no proper evidentiary foundation for a conclusion that past events did not occur as the visa applicant claimed. The Court did not posit a rule to be applied in every case. In all cases, the weight that may be rationally (that is, lawfully) afforded omissions or inconsistencies identified by the reference to an arrival interview must be considered in the context of the individual case. The circumstances may be such as to wholly explain an omission so that no weight may be afforded the omission at all in any assessment of a visa applicant’s credit. Whether or not factors of the kind to which the Court referred exist, and whether or not they explain an omission, is for the Tribunal to decide, within the bounds of legal reasonableness and in accordance with the rules of procedural fairness, to the extent that they apply.
In the present case, the Authority acknowledged that the applicant was not required to give a full account of his claims for protection, and was only asked to provide brief details. This suggests that the Authority was aware of some of the limitations relating to arrival interviews. The Authority considered and rejected the explanations given by the applicant for not raising his relevant claim at the arrival interview. It was open to the Authority to do this.
Further, and in any event, the Authority did not rely solely on the omission at the arrival interview to reject the applicant’s claim to have been approached and threatened by Salafists. The Authority also relied on inconsistencies regarding the applicant’s evidence surrounding the circumstances in which he left Lebanon and travelled to Australia and implausibility in relation to certain aspects of the applicant’s claim.
Mr McBeth in oral submissions referred the Court to the Federal Court’s judgment in ARG15 v Minister for Immigration (2016) 250 FCR 109; [2016] FCAFC 174 (ARG15), where the Federal Court rejected a submission by the Minister that one paragraph of the Tribunal’s reasons was ‘foundational’ and provided an independent basis for the decision. The Court in that case found that the Tribunal’s reasons for rejecting the application for review were cumulative and relied on words such as ‘further’ and references to ‘all of the reasons given above’ in support of this finding. The applicant submitted that a similar reasoning process had been adopted by the Authority in this case.
I do not consider that ARG15 assists the applicant in the present case. The Court in that case was effectively considering a materiality submission. It found that the Tribunal erred in failing to have regard to a particular submission which drew attention to a particular country information report. It was in this context that the Court was considering whether a separate paragraph in the Tribunal’s reasons provided an independent basis for the Tribunal’s decision. By contrast, I have not found in the present case that the Authority erred by referring to the written record of part 1 of the arrival interview. The present case is more akin to MZZJO. The Authority made an adverse finding based in part on the applicant’s omission at the arrival interview. However, it has not relied solely on the omission to make its adverse finding. It has also relied on identified inconsistencies and implausibility. This process of reasoning was open to the Authority, taking into account the comments of the Court in MZZJO.
The facts of the present case are materially different from the facts in AYJ17. There are two main reasons for this. The first reason is that the applicant in the present case was given multiple opportunities to comment on the omission and took advantage of those opportunities. The Authority had regard to the explanations provided by the applicant. There did not appear to be any comments advanced by the applicant in AYJ17 as to why he had not raised the claim earlier. Second, in AYJ17, the claim that was not referred to at the arrival interview was found to be potentially subsumed within a more general claim that was mentioned at the arrival interview. In the present case none of the more general responses given by the applicant at the arrival interview in response to the question of why he left his home country were capable of incorporating the claim that the applicant was approached and threatened by Salafists.
Ground 2 is not established.
GROUND 3
Applicant’s submissions
The applicant submitted that the Authority was required to, and purported to, consider whether the applicant faced a real risk of significant harm upon return to Lebanon as a consequence of sectarian and extremist violence.
The Authority referred to a report by DFAT, ‘DFAT Country Information Report – Lebanon’ dated 18 December 2015 (DFAT report). The applicant submitted that the Authority relied on the DFAT report to support the proposition that incidence of violence influenced by long-standing sectarian tensions have decreased since 2013, but did not have regard to other information in that report, including that the stability is being constantly tested by the conflict in neighbouring Syria, and that Lebanon is broadly stable but the security situation is fragile and could deteriorate with little notice.
The applicant submitted that the Authority was required to take those qualifying statements into account as part of its forward looking assessment of whether the applicant faced a real risk of significant harm into the foreseeable future. The applicant submitted that the Authority failed to engage in the required speculation about the situation in Lebanon into the foreseeable future, based on probative evidence in the DFAT report as to the highly volatile and fragile nature of the security situation.
Minister’s submissions
The Minister submitted that the applicant’s complaints are negated by the terms of the Authority’s reasons, which refer to DFAT’s assessment that terrorist organisations such as Daesh and Jabhat al-Nusra still have capacity and influence in Lebanon and that civilians may face a moderate risk of violence depending on their location.
The Minister submitted that the weight to be given to a particular item of country information is a matter for the Authority to decide as part of its fact-finding function. The Authority’s findings with respect to the security situation in Lebanon were open on the material and the reasons manifest a real and conscious engagement with the issues raised by the applicant’s claims to protection.
Resolution
The first question raised by this ground, as it was developed in the submissions, is whether the Authority assessed the risk of harm faced by the applicant in the reasonably foreseeable future, or simply at the time of its decision.
The applicant relied on certain paragraphs in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 to support his argument. At [59], the Court said that to make an assessment of whether an applicant faces a real chance of harm if returned to their country requires that ‘there must be speculation about the future, and the period of time throughout which that speculative task must be carried out has been expressed to include so much of the future as is “foreseeable” or “reasonably foreseeable”…’. At [60] the Court said:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonably foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what the person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
In the present case, the Authority’s reasons in relation to the applicant’s risk of harm from generalised violence are expressed at [25] to [28] of its reasons, where it said (emphasis added):
25.Apart from the claim I have rejected above, the applicant has not claimed, and there is no evidence before me that he or any member of his immediate family has suffered any persecution, harm or mistreatment at the hands of any person, group, organisation, paramilitary, military or government body in Lebanon, for any reason. Although his village is close to the Syrian border, he has not claimed that his village has been involved in any sectarian or cross-border incidents or that it is known as being anti-Syrian or otherwise involved in the Syrian conflict, apart from having refugees present. I have nevertheless considered the general country situation in Lebanon and whether the applicant may face a real chance of serious harm if he was to return.
26.DFAT has assessed that Sunni Muslims in most areas of Lebanon, including Beirut, most of Tripoli and areas in the northern district, face a low risk of violence or harm unless they are actively involved in fighting. The applicant’s home village is close to the Syrian border and I have also considered whether this would increase the general risk to him, should he return to live there. DFAT has acknowledged that security in the border regions is more complicated and there have been instances of violence including cross-border violence resulting from the conflict in Syria. However, DFAT assesses that overall, Sunni communities in the border regions face a low risk of violence including cross-border violence, unless the community is perceived to be anti-Syrian or to be harbouring opposition fighters.
27.DFAT has also acknowledged that civilians may be caught up in sectarian and extremist violence but the incidence of such violence has decreased since 2013. Nevertheless, DFAT assesses that terrorist organisations such as Daesh and Jabhat al-Nusra (JN) still have capacity and influence in Lebanon and that civilians may face a moderate risk of violence, depending on their location. DFAT has, however, assessed that the potential for Daesh or JN to launch attacks in Sunni area as unlikely.
28.I also take into account that the applicant has not claimed that any extremist group has perpetrated any acts of violence in his village or local area, or that he or any member of his family has been affected by violence, sectarian tensions or conflict in the village or wider area. Although I accept his evidence that there are Syrian refugees in his area, he has not claimed and there is no evidence before me that there are opposition groups or fighters in his area. While the applicant did claim in his initial interview that the family could not go out at night because of “people from Lebanon and Syria and Shi’a”, and because of a lot of murders used to happen, I am satisfied that the applicant and his family have not been harmed or suffered any form of harassment, violence or interference from any person or organisation in Lebanon in the past. There is nothing in the information or evidence before me that indicates that this risk has increased or that the conditions in the applicant’s district have deteriorated or changed. Therefore, on the basis of all the information and evidence above, I find the applicant does not face a real chance of serious harm on the basis of sectarian or extremist violence or activities, should he return to Lebanon.
There is nothing in the words or structure of these paragraphs that indicates that the Authority misinterpreted its task. The words used by the Authority in expressing its conclusions indicate a forward-looking assessment was conducted (see emphasised parts above). The conclusion expressed at [35] of the Authority decision in relation to the Authority’s complementary protection assessment reflects the words used in s 36(2)(aa) of the Migration Act and expresses a finding that the applicant would not face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Lebanon. Further, I do not infer from the reference to the situation at the time of the DFAT report and the lack of change since that time that the Authority limited its consideration only to the risk of harm that the applicant would face at the time of its decision. Past events can provide a reliable basis to determine the probability of something happening in the future: Minister of Immigration and Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559 at 574-575; [1997] HCA 22 at [56] and [57].
I do not infer from the absence of any express reference to particular sentences in the DFAT report that the Authority has overlooked that information or failed to take it into account in assessing the risk to the applicant in the future. The DFAT report relevantly said (emphasis to show those parts of the report that the applicant claims the Authority overlooked):
Security Situation
2.36Lebanon is broadly stable, but the security situation is fragile and could deteriorate with little notice. Lebanon has low to moderate levels of crime, which have increased, likely as a result of the weak economy and significant influx of Syrian refugees since 2011.
…
2.38Since the previous DFAT Country Information Report on Lebanon dated 25 February 2014 and DFAT Thematic Report on Sectarian Violence in Lebanon dated 18 December 2013, incidents of violence influenced by long-standing sectarian tensions have decreased, ostensibly in response to successful interventions by the Lebanese authorities and cooperation between traditionally opposing actors … Security plans implemented in a number of locations by the Lebanese Armed Forces … and a formal dialogue between the Shi’a Hizballah and Sunni-dominated Future Movement have contributed to a more stable security situation.
2.39However, this stability is being constantly tested by the conflict in neighbouring Syria, including through the large influx of Syrian refugees, and the presence in Lebanon of extremist groups such as Daesh and al-Nusra, with an intent to perpetrate violence in Lebanon and agitate the pre-existing sectarian tensions within Lebanon. Overall, DFAT assesses that Daesh and al-Nusra currently have an increasing capacity and influence in Lebanon, and that civilians face a moderate risk of violence, depending on their location. For example, recent incidents of violence linked to Daesh or al-Nusra have targeted Alawite and Shi’a interests. DFAT assesses the potential for Daesh or al-Nusra to launch attacks in Sunni-dominated areas as unlikely.
The Authority clearly had regard to the information in [2.39] of the DFAT report as it referred to that information at [27] of its reasons. While the Authority referred to the information in the second and fourth sentences of that paragraph rather than the first and third sentences, this does not mean that the first and third sentences were overlooked. The use of the word ‘nevertheless’ at [27] of the Authority’s reasons reflects its understanding that the information that it referred to, based on [2.39] of the DFAT report, was a qualification to the previous sentence regarding the decrease in the incidence of sectarian and extremist violence. The section in the DFAT report on the security situation in Lebanon is brief. I am satisfied that the Authority had regard to the whole of the section and simply referred in its reasons to the parts that it considered to be most relevant. The opening words in [2.37] are introductory words to the section which give context to the more specific information that follows. I do not infer from the Authority’s failure to refer to those specific words that the applicant identifies that the Authority did not make a forward looking assessment when considering the risk of harm to the applicant should he return to Lebanon.
Ultimately, the parts of the DFAT report that the Authority considered to be most relevant to its decision were for the Authority to identify. The choice of, and weight to be given to country information was a matter for the Authority as part of its fact-finding function: NAHIv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
Ground 3 does not establish jurisdictional error.
CONCLUSION
I have found that the applicant has not established jurisdictional error in the Authority decision. It follows that the application is dismissed.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 15 March 2022
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