DQN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 419

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DQN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 419

File number(s):	SYG 2560 of 2017
Judgment of:	JUDGE GIVEN
Date of judgment:	31 May 2022
Catchwords:	MIGRATION – review of a decision of the Immigration Assessment Authority which affirmed a decision not to grant the applicant a Temporary Protection visa – applicant claiming  to fear harm from previous army service and imputed political opinion – change in applicant’s personal circumstances while awaiting a hearing – observations on the possibility of Ministerial Intervention –  application dismissed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division:	Division 2 General Federal Law
Number of paragraphs:	50
Date of hearing:	3 May 2022
Place:	Sydney
The Applicant:	In person
Solicitor for the Respondents:	Mr H Gao of Australian Government Solicitor

ORDERS

SYG 2560 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DQN17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	31 MAY 2022

THE COURT ORDERS THAT:

1.The application filed on 14 August 2017 be 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 GIVEN:

1. By an application to show cause filed with this Court on 14 August 2017, the applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 14 July 2017 which affirmed a decision of a delegate of the first respondent (delegate) not to grant the applicant a Temporary Protection visa (TPV). 

   Background

2. The background to the application is set out and accurately summarised in the Minister’s written submissions.

3. The applicant is a citizen of Lebanon, who arrived in Australia on 7 July 2013 as an irregular maritime arrival (see Court Book (CB) at 50). On or about 26 September 2016, the applicant applied for a TPV (CB 30-66) in which he claimed to fear harm in Lebanon due to the generalised violence in the Bab-al-Tabbeneh and Jabal Mohsen area.

4. The applicant claimed that he and his family had closed their business due to the violence in the area and that he had experienced difficulties at checkpoints due to having a particular surname (CB 67).

5. The applicant also claimed to fear harm because his home village, which had a majority Sunni population, is near another village which is populated by Shias.  The applicant claimed to fear harm from involvement in sectarian conflict and said that he could not relocate to any place in Lebanon because the whole of Lebanon is affected by sectarian conflict.

6. Finally, the applicant also made claims that his involvement with the Lebanese army brought him to the attention of militia groups in the Bab-al-Tabbeneh and Jabal Mohsen area and he would be harmed in Lebanon by these groups (CB 67-68).

7. The delegate’s decision records that the applicant was interviewed on 16 December 2016 at which he discussed his claims for protection (CB 94).  At that time, the applicant was represented by a migration agent who was not present in the interview.  The delegate records the applicant as saying he did not wish to return to Lebanon because he feared harm from militias who tried to recruit him to their side and that, having been a member of the Lebanese Army, leaders of the groups who are engaged in sectarian fighting would “view him as their enemy and harm him”.

8. On 30 December 2016, the delegate refused to grant the applicant the TPV. Relevantly, the delegate found that the applicant would not be returning to the Bab-al-Tabbeneh and Jabal Mohsen area as he was no longer in the army. The delegate found that it would be reasonable for the applicant to relocate to another part of Lebanon. As such, the delegate was not satisfied that the applicant met the criteria for the grant of the TPV (CB 89-99).

   Authority decision

9. The Authority accepted that there were no issues as to the applicant’s credibility.  His identity was accepted as was his nationality, personal history and description of past events.  The Authority accepted that the applicant’s fear of being harmed in Lebanon was genuinely subjective (for the reasons which it gave) but the Authority was not satisfied that that fear was also well-founded (CB 126 at [7]).

10. The applicant was found to have always lived in his home village and to have previously run a charcoal business which was in close proximity to the area of Bab al-Tabbaneh and Jabal Mohsen, which are neighbourhoods of Tripoli.  Country information relied upon by the Authority indicated that, before 2014, the Bab al-Tabbaneh and Jabal Mohsen area of Tripoli were frequently the sites of clashes and violence between anti-Syrian regime, Sunni Muslim groups and pro-Syrian regime Alawite Shia groups and that this had resulted from traditional hostilities which had been exacerbated by the war in Syria.  Further, Department of Foreign affairs and Trade (DFAT) country information noted that Tripoli was broadly stable but was vulnerable to outbreaks of renewed violence and described the Bab al-Tabbaneh and Jabal Mohsen area as a recurring flashpoint where Sunnis were at moderate risk of harm from sectarian violence (CB 126 to 127 at [8]).

11. The applicant’s claim in relation to the forced closure of his business in 2011, due to sectarian conflict, was accepted by the Authority (CB 127 at [9]).  The Authority considered a claim by the applicant that he faced harm upon return to Lebanon because he had refused to join and fight alongside either of the militia groups and because he had previously been an army officer who had been deployed to maintain order and prevent those groups from fighting one another.  The Authority specifically considered the fact that the applicant had worked in Bab al-Tabbaneh and the Jabal Mohsen area first as a business owner and then, that he had specifically been deployed there as an army officer between 2010 and 2013 (CB 127 at [10]).

12. As a result, the Authority accepted that the applicant would have an identifiable profile and that he would be recognised in the local area.  However, the Authority, was not convinced that the applicant would face harm as a result of this, notwithstanding the fact that it accepted that he had been watched and also had received threats during this time there, because there was no material before the Authority to indicate that the threatening behaviour extended outside of those regions and the applicant had also not claimed to face any problem after he had left the army or the area.  The Authority also noted that the applicant had remained in Lebanon for two to three months after leaving the army, throughout which time he stayed in his home village (CB 127 at [10]).

13. The Authority also noted that the applicant’s parents and several siblings also still remained in the home village and was satisfied that there was no evidence before it that they had been harmed, threatened or even approached by anyone looking for the applicant.  As a result, the Authority was satisfied that the pressure which may have been placed on the applicant to join one of the militia groups, and threats that he had received, had been confined to the periods in which he was present and visible in the region (CB 127 at [10]).

14. Further, the Authority was satisfied that the applicant’s time in the Lebanese Army had been confined to duties in Tripoli and that he had not reported any problems in carrying out the duties in any of the areas of Tripoli, apart from the Bab al-Tabbaneh and Jabal Mohsen area.  The Authority found there to be no indication before it that the army profile of the applicant had ever been such that he would be recognised outside of those areas. 

15. The Authority went on to consider the applicant’s claimed fear of harm from broader and sectarian violence in Lebanon outside of Tripoli, and generalised violence in all of Lebanon.  By reference to DFAT country information, the Authority was not satisfied the applicant faced a real chance of being targeted for being Sunni or any harm arising from sectarian fighting in his area, even taking in account that his Sunni village was close to a Shia-dominated one (CB 128 at [16]). 

16. The Authority went on to consider that the applicant has a particular surname which might be problematic, for reasons which will be omitted from this judgment so as to not identify him.  However, as the applicant had confirmed at his visa interview, despite this surname, when he produced identification to show a different spelling of it, he no longer suffered from any harm as a result.  The Authority went on to consider the fact that the applicant would be returned to Lebanon via Beirut, and also considered what, if any, impact the applicant’s various particulars would have on this and his ability to pass through Beirut (CB 129 at [19] to [20]).

17. Ultimately, the Authority also expressed sympathy for the applicant’s circumstances, noting that 18 people from his town, including some of his relatives, had died attempting to reach Australia by boat, but did not find that this gave rise to any real chance of harm by reason of these matters.  In relation to the refugee criterion, the Authority took into account each of the applicant’s various permutations of claims, was not satisfied that he faced a real chance of harm in his home region and therefore found that the applicant’s fear of persecution was not well-founded (CB 130 at [23]). 

18. In addition, the Authority then went through the applicant’s various claims by reference to the complementary protection assessment and was, similarly, not convinced that there were substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Lebanon from Australia, that there was a real risk that the applicant would suffer significant harm (CB 130 to 131 at [27] to [32]).

    Application to the Court

19. By his application to show case, the applicant seeks judicial review of the Authority’s decision under s 476 of the Migration Act 1958 (Cth) (Act), and he raises the following grounds of review (errors in original):

    1. The Immigration Assesment authority “IAA” failed to consider the imputed political opinions elemnt of the refugee convention.

    Particulras

    A- The Authority erred in its conclusion that I will not seek to return to the army, although this conclusion is right, however the imputed political opinion resulted from my service in the army cannot be avoided by not returning to the army.

    B- That the imputed political opinions (resulted my service in the army) are excluded from behaviours that I can modify ccording to s 5 j of the Act, accordingly the suugestion by the IAA that I will not go back to the army was made in error.

    2. The Immigration Assesment authority “IAA” failed to test all the refugee convention elemnts against my circumstances, namely, the imputed political opinions.

    3. The Immigration Assesment authority “IAA” decision is unreasonable

    particulars

    A- the Authority's conclusion (in pargraph 10) in relation the assesssment of risk outisde Bab al-Tabbeneh-Jabal Mohsen area was made in error because [the applicant’s home village] (where I live) is only 25 km away from these areas.

20. On 22 September 2017, Judge Dowdy made orders at the first Court date in this matter, at which the applicant was present in person and had the assistance of an interpreter in the Arabic language.  By consent, the applicant was granted leave to file and serve any amended application on or by 26 October 2017.  The applicant did not avail himself of that opportunity.  On 22 December 2021, the matter was brought into my docket and was listed for hearing before me on 3 May 2022 together with consequential orders that the applicant and the first respondent file and serve written submissions 14 and 7 days before the hearing date (respectively).  Written submissions were filed for the Minister on 21 April 2022 but not by, or for, the applicant. 

21. The applicant appeared before me at the hearing in person with the assistance of an interpreter in the Arabic language, who appeared using the Microsoft Teams platform.  The Minister was represented by a solicitor who also appeared in person.  The applicant spoke English extremely well and requested that he be able to address me in English and to use the interpreter only if needed.  I indicated that this was acceptable to the Court, but that the interpreter would remain online throughout the hearing for the benefit of the applicant and could be used as he wished.  The applicant did use the interpreter on occasions for certain legal concepts, but otherwise was able to successfully engage with the Court and also appeared to understand the submissions of the solicitor for the Minister. 

22. In addition to the three grounds in the originating application, the applicant also sought to read his Affidavit, made on 11 August 2017 and filed in support of the originating application. 

23. That Affidavit raises what can only be described as three additional grounds, as follows (errors in original):

    1-THAT I BELIEVE THAT THE IAA DECSION WAS MADE IN ERROR AS IT DID NOT COVER ALL THE ASPCTS OF MY PERSECUTION.

    2-THAT THE IAA MADE AN ERROR IN TESTING THE REASONABLENESS OF MY RELOCATION TO LEBANON.

    3-THAT THE IAA MADE AN ERROR IN NOT TAKING MY IMPUTED POLITICAL OPINONS INTO ACCOUNT WHEN ASSESSING MY REFUGEE CLAIMS .

24. Given the applicant is unrepresented, the Court is prepared to treat these paragraphs as being additional grounds, although there is considerable overlap between them and the grounds contained in the originating application.  The paragraphs of the Affidavit have not been specifically addressed by the Minister’s solicitor in written submissions, however given that they do overlap with various of the grounds in the originating application and the Minister’s solicitor was invited to address them at hearing and I find there is no prejudice to the Minister in the additional grounds being considered.

25. To the extent that the grounds do overlap, it is appropriate to group them together. Grounds 1 and 2 in the originating application and grounds 1 and 3 in the Affidavit each allege that the Authority failed to consider the applicant’s claims fully against the refugee criterion in the Act, making specific reference to a claim which is described in ground 1 of the originating application as being “the imputed political opinions or [element]”. 

26. The Minister’s written submissions deal with this briefly by stating that the allegation is misconceived because the applicant never raised a claim that he would be imputed with any adverse political opinion as a result of his military service, making reference to his written statement of claims (CB 67) and the delegate’s summary of claims including statements made at the protection visa interview which are included under a heading “Part 5: Findings of fact” (CB 94).

27. I disagree with the suggestion that the applicant did not make such a claim and I drew the attention of the Minister’s solicitor to CB 94 where the delegate records:

    In summary, the applicant stated that he does not wish to return to Lebanon because he fears being harmed by those who tried to recruit him to their side.  Having been a member of the Lebanese Army, he fears that the leaders of the groups engaged in sectarian fighting would view him as their enemy and harm him.

    (emphasis added)

28. To the extent that this claim is based upon the belief that others would perceive the applicant to hold particular views by reason of his previous army service, it is, in essence, a claim to be imputed with a particular opinion.  When asked to address this at the hearing, the applicant first gave explanations as to the reason why he joined the army.  When directed specifically to address whether or not there was a legal error in the Authority’s reasoning the applicant says that he was still intimidated by these people after he left the army.  He said that the Authority did not fully understand that he was still in danger from the militia who had tried to recruit him.

29. To the extent that this submission urges upon the Court merits review, I explained to the applicant at the outset of the hearing and several times throughout that the Court is not able to assess his claims for itself.  The applicant indicated that he understood.  In relation to the Minister’s written submission that the ground is misconceived because the applicant had never made such a claim, the solicitor for the Minister clarified this by saying that the concept of “imputed political opinion” stems from the Refugees Convention which concerns the State wishing to harm someone for their political views.  The Minister says that the applicant did not claim that the Lebanese government was seeking to harm him by reason of his military service, but that to the extent that the militia groups could seek to harm him, this was a claim that the applicant did make before the delegate, and the Minister accepts that it was made.

30. However, the Minister says that because the violence is not perpetrated by the state, it would not be a claim of imputed political opinion, as that Convention ground is generally understood.  Insofar as the claim is raised in relation to political opinions which may be imputed to the applicant by the militia groups that he refused to join, the Minister says that the Authority clearly dealt with this at paragraphs [10] to [11] (CB 127) of its findings. 

31. From this, I conclude that the Authority did consider the claim, in particular at [10] where it found that:

    …There is no indication before me that the applicant was ever watched, threatened or subject to any actual or attempted harm when he was outside of these neighbourhoods. The applicant has not described facing any problems after leaving the army or the area. He remained in Lebanon another two to three months after he resigned from the army during which time he stayed in his home village…

32. The Minister relies upon, and I accept, the following passage from [11] of the Authority’s decision which is said to be crucial in relation to that claim and which was thoroughly dealt with:

    I am not satisfied that any of the local militias maintained any interest in the applicant, apart from when he was on duty in the area, and certainly not after he left the army and the area.  I am satisfied the risk facing the applicant ceased when he left the army and the area and returned to his village.  I am not satisfied he faces a risk of harm in Lebanon as someone who formerly served for one year in the Lebanese army, even taking into account the area in which he served, the threats he received during that time and the earlier pressure to join one of the militia groups.

33. Further at paragraph [14] the Authority specifically said:

    I find the applicant does not face a real chance of persecution in the reasonable foreseeable future in relation to his resistance to joining the militia, for his army profile or as a result of the sectarian fighting between groups in Tripoli.

34. In my view, there is no error in the manner in which the Authority dealt with these claims, nor was there any aspect of the applicant’s claimed fear of harm arising from his time in the army which went unconsidered.  Accordingly, the grounds which pertain to this issue in both the originating application and the Affidavit are not made out. 

1. Ground 3 of the originating application overlaps with ground 2 raised in the Affidavit.  By these grounds the applicant alleges that the Authority’s decision is affected by legal unreasonableness, specifically, it seems, in relation to relocation. 

2. By the originating application, the applicant takes issues with the findings pertaining to potential harm in the applicant’s local area.  By the ground in the Affidavit, the applicant refers to the reasonableness of the Authority in relation to his “relocation to Lebanon” (emphasis added). 

3. To the extent that the use of the word “to” means that the applicant is taking issue with being returned to Lebanon generally and says that Lebanon is generally unsafe for him, this is a bare disagreement with the Authority’s overall findings.  If it is intended to take issue with the applicant’s claim to fear generalised violence, then this was properly dealt with in paragraphs [15] and [16] of the Authority’s decision.  If, however, this ground in the Affidavit was intended to read relocation “in” Lebanon, and to the extent that the delegate dealt with the issue of relocation but the Authority found that it was not necessary to do so, then I agree with the submission made by the first respondent’s solicitor at hearing that having found that the applicant was safe in his home region, it was not necessary to go on and consider relocation to another area in Lebanon.

4. The applicant claimed to have always lived in his home village and to have run a business close to the Bab al-Tabbaneh and Jabal Mohsen neighbourhoods of Tripoli.  It is in those latter areas that the applicant also undertook his military service.  As noted previously in relation to the first issue addressed by the grounds, the Authority accepted at [11] that by reason of both his work and his military service, the applicant would have an identifiable profile and be recognisable in those areas, but that he had not claimed to face any problems outside those areas and that he had remained in Lebanon for some time after leaving the army, during which he stayed in his own village where his family still resides.

5. The Authority was satisfied that the applicant would not return to work in those areas.  By the particulars to ground 3, the applicant says that the Bab al-Tabbaneh and Jabal Mohsen neighbourhoods of Tripoli are only 25 kilometres from his home village. 

6. It was to this issue that the applicant directed his oral submissions at hearing today in relation to these grounds.  In short, the applicant says that all of Lebanon can be seen by car in only two hours and that it is small.  The applicant says that Bab al-Tabbaneh and Jabal Mohsen are only 500 metres apart and his home village is only a few kilometres further away. 

7. I asked the applicant whether he was saying that he would be in danger from generalised violence in Lebanon or specifically from the groups that he had claimed.  The applicant answered that he would be generally at risk from violence in Lebanon. 

8. The applicant also said that the Court “is not watching the news and every day you hear about people dying”.  He said that a few weeks ago, there were 20 people who died in a boat trying to escape from Tripoli.  The applicant said that he would not be safe in any other parts of Lebanon.  However, and as detailed before, the Authority dealt with the risk of generalised violence in Lebanon, but also with the fact that the applicant claims that as a Sunni Muslim he would feel that he is at risk of harm from a village which is Shia dominated and near his home village. 

9. The Authority also dealt with these issues thoroughly.  In particular, at [16] the Authority said that while it was prepared to accept the applicant’s claims that there had been violence in his area, the country information did not support that it occurred with the scale, gravity or frequency that would give rise to a real chance of being harmed.  It further noted that the applicant’s parents and some of his siblings remain in the area, and that there was no information before the Authority to suggest that they had faced any harm from sectarian violence in the area.  Accordingly, the Authority specifically found that it was not satisfied the applicant faced a real chance of being targeted for being Sunni, nor from harm arising from general sectarian fighting in his area, even taking account of fact that the Sunni village was close to a Shia dominated area.

10. In this regard, the Authority’s findings about the applicant having continued to reside in his home village for months before leaving Lebanon were open to it and were both logical and rational.  I would also add that the Authority considered the fact that if returned, the applicant would transit through Beirut.  The Minister submits that the findings are not so unreasonable that no reasonable decision-maker could have arrived at the same decision on the same evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. I agree and am not satisfied that the remaining grounds of the originating application or the Affidavit are made out.

11. When, at the conclusion of the submissions made at hearing by the Minister’s solicitor the applicant was asked if he had any submissions in reply, he drew the Court’s attention to paragraph [7] of the Authority’s reasons for decision, where it accepted there were no issues of credibility and also accepted that the applicant held a subjective fear.  The applicant submitted that that the delegate “did not know what was going on”, did not understand his claims and did not understand that he was going to fear harm in Lebanon.  In this regard, I explained to the applicant that the Court does not have the power to review the primary decision. 

12. Lastly, the applicant made submissions to me in relation to his personal circumstances and all that has happened to him in the 5 years since the Authority’s decision.  In this time the applicant has (understandably) gotten on with his life.  The applicant told the Court that he has been married since 2015 and that he and his wife (who was also present at the hearing) have had two children, and are presently expecting another child.  The applicant made submissions to me to the effect that his oldest child has autism and needs both his mother and his father to be in Australia to care for him.  The applicant also says that he started his own business in 2018 and that his wife, who is an Australian citizen, also has her own business.  The applicant was at pains to point out that neither he nor his wife obtain any benefit from Centrelink and that they are contributing members to the Australian community.

13. I have a considerable amount of sympathy for this position, in particular in relation to the submissions that were made about the applicant’s personal circumstances as a father and the fact that he has a child who has additional needs.  Notwithstanding my sympathy for those circumstances, and as I indicated to the applicant at hearing, these are not matters which the Court can take into account as to whether or not a jurisdictional error exists in relation to the Authority’s decision, such that it would be remitted. 

14. I have found that the Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.  The application must therefore be dismissed.  I will so order.

15. However, given what I have been told in relation to the needs of the applicant’s child (in particular), I strongly suggest that consideration be given by the first respondent to any available avenue of Ministerial intervention. 

16. I will hear the parties as to costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       31 May 2022