DSX16 v Minister for Immigration

[2017] FCCA 1892

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSX16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1892

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – adverse credibility findings by Tribunal– no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476

Applicant: DSX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3460 of 2016

Judgment of: Judge Street

Hearing date: 10 August 2017

Date of Last Submission: 10 August 2017

Delivered at: Sydney

Delivered on: 10 August 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms S He
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3460 of 2016

DSX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (the “Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 November 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. The applicant arrived in Australia in December 2011 on a student visa. That student visa was cancelled on 5 May 2014. The applicant sought a review of that decision and the cancellation was affirmed on 5 September 2014. It was not until 2 October 2014 that the applicant applied for protection. 

   The applicant applied for protection on the grounds that his father held the position of a deputy minister in his family municipality and had held that position since 2008, that his father had enemies and that those enemies were because he had been a pro-Syrian March 8 coalition supporter and that the majority in the municipality were loyal to the anti-Syrian March 14 coalition.

3. The applicant alleged that his father’s views were imputed to him and that his family had been labelled at traitors. The applicant alleged a particular incident occurred in 2010 and that he barely made it home.  The applicant also alleged that a group of armed people came to his father’s house in 2012 and made threats in relation to the applicant.  The applicant alleged his father received countless anonymous threatening calls and threats to torture or kill the applicant.

4. The applicant also alleged that he ran errands for his father and that rogue groups had a vendetta against him.  The applicant also alleged that the situation in Lebanon had continued to deteriorate and that his mother’s relative, a supporter of the Jihad Al Samad, had been killed by the opposition party. 

5. The delegate made adverse credibility findings in relation to the applicant’s claims and refused the grant of the protection visa on 18 March 2015 finding that the applicant failed to meet the criteria under the Act. 

Review by Tribunal

1. The applicant applied for review on 13 April 2015. By letter dated 23 September 2016, the applicant was invited to attend a hearing before the Tribunal on 1 November 2016.  The applicant appeared on that date to give evidence and present arguments. 

2. The Tribunal in its decision of 9 November 2016 identified the applicant’s migration background and the applicant’s claims in relation to his fears in support of the protection visa. The Tribunal identified the material provided prior to the hearing on 24 October 2016 by the applicant’s migration representative. The Tribunal also identified the material subsequently provided after the hearing on 8 November 2016. 

3. The Tribunal summarised the relevant law. The Tribunal found the applicant not to be a credible and truthful witness and concluded that the review should be affirmed. The Tribunal took into account that there are inconsistencies in the applicant’s evidence and the unpersuasive nature of some of the key aspects of his claims and provided detailed reasons in support of the adverse credibility findings. 

4. The Tribunal identified, first, that the applicant provided an inconsistent account of his political affiliations, activities and profile in Lebanon. The Tribunal made reference in relation to new information provided by the applicant as to his failure to disclose those matters concerning the membership of the Free Patriotic Movement at his Departmental interview. The Tribunal noted that the applicant had been represented throughout the progress and found the applicant did not clarify why he opted to disclose his membership of the Free Patriotic Movement at the Tribunal hearing.

5. The Tribunal did not accept the applicant’s explanation as satisfactory that he did not mention his work as a bodyguard because he did not want to be seen as a bad person.  The Tribunal found the applicant’s explanations improvised and unpersuasive. The Tribunal made reference to the purported translation of the Free Patriotic Membership card. The Tribunal noted that the document contained the number and the name of the party and referred to the applicant’s name, place of birth and date of birth, but no other information in relation to when and where the applicant joined the party and when and where the card was issued or whether his membership was still valid. The Tribunal noted neither the applicant nor his representative provided any further information or clarifications in relation to the translation. 

6. The Tribunal found that the document submitted did not remedy the Tribunal’s concerns regarding the problematic nature of the applicant’s claimed political affiliations and activities.  Taking into account the Tribunal’s concerns as to the applicant’s credibility, the Tribunal did not give that document any weight.

7. The Tribunal referred to the significant shifts in the applicant’s evidence and his preparedness to introduce new claims at different stages, casting doubt on his credibility and the reliability of his evidence in relation to his political affiliations and associations, links and activities, including the activities he claims to have carried out for and on behalf of his father. 

8. The Tribunal referred to the applicant having provided inconsistent accounts of his experiences of harm in Lebanon throughout the process. The Tribunal referred to the applicant raising two new claims at the departmental interview. The Tribunal found the applicant provided a completely different account of his experiences in Lebanon at the Tribunal hearing. 

9. The Tribunal put to the applicant the applicant’s evidence in relation to the credibility concerns and inconsistencies to which the applicant replied he would leave it to God. The Tribunal was unable to reconcile the various inconsistencies in the applicant’s evidence. The Tribunal found the applicant’s account of the experiences in Lebanon was inconsistent, unreliable, improvised and unpersuasive. The Tribunal was of the view that the applicant had manufactured these claims to strengthen his case and achieve an immigration outcome.  The Tribunal did not accept the applicant’s claims regarding his experiences in Lebanon. The Tribunal found the applicant had provided inconsistent and unpersuasive evidence in relation to the claimed attack on his father in 2012. 

10. The Tribunal took into account the applicant’s delay in applying for protection following the cancellation of his student visa. The Tribunal raised with the applicant at the hearing that if he had been personally attacked and threatened in Lebanon and if threats of harm were made against him in 2012, it would be reasonable to expect him not to have delayed making an application for a protection visa until 2014. The Tribunal did not find the applicant’s explanations put forward satisfactory. The Tribunal found the applicant not to be a credible and truthful witness. 

11. The Tribunal found the totality of the applicant’s evidence shows a propensity to fabricate claims and tailor his evidence in a manner that achieves his own purpose. The Tribunal did not accept the applicant was a member or a supporter of the Free Patriotic Movement. The Tribunal did not accept that the applicant attended political meetings or distributed pamphlets on behalf of his father. The Tribunal did not accept that the applicant was involved in any political activity or any other activity that may be characterised as political.

12. The Tribunal did not accept that the applicant acted as his father’s security guard, or that he assaulted or was assaulted by anyone. The Tribunal did not accept the applicant’s claims in relation to his father.  The Tribunal did not accept that the applicant was attacked, assaulted, threatened or harmed in any way by anyone in Lebanon. The Tribunal was prepared to accept that a relative of his was killed in April 2012, but was not satisfied the incident occurred for the reasons provided by the applicant. The Tribunal did not accept that the death of the applicant’s friend which was the consequence of a personal fight means the applicant would face a real change of serious harm or a real risk of significant harm in Lebanon. 

13. The Tribunal did not accept there is a real chance the applicant will be subjected to serious harm for reason of his political opinion, religion, membership of the particular social group of his family, or any other social group apparent on the face of the evidence, or any other Convention reason. The Tribunal did not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon there is a real risk the applicant will suffer significant harm in Lebanon arising from his religion, his imputed political opinion, his familiar links, area of residence or other circumstances. 

14. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of “torture” in s 5(1) of the Act. 

15. The Tribunal also found it was not satisfied that there are substantial grounds for believing there is a real risk that the applicant will suffer harm that would involve intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of “cruel or inhumane treatment or punishment” in s 5(1) of the Act, or to meet the definition of “degrading treatment” in s 5(1) of the Act. The Tribunal was not satisfied there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary detention of his life or the death penalty. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention.

16. The Tribunal found that the applicant did not meet the criteria under s 36(2)(a) of the Act. The Tribunal found that the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Hearing in this Court

1. On 13 April 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

4. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Applicant’s Submissions from the bar table

1. From the bar table, the applicant maintained that his life would be in danger if he was returned to Lebanon. The applicant maintained that he had been a good person whilst in Australia and had respected and complied with the law. Every person in Australia is expected to comply with the law in Australia. The applicant submitted that the Tribunal had found that he was lying when he introduced new claims. The applicant also submitted that he was a human being and he would be in danger if returned to Lebanon. 

2. The applicant’s submissions invited this Court to engage in an impermissible merits review. This Court has no power to review the merits. In relation to the adverse credibility findings made by the Tribunal, the Tribunal provided rational and cogent reasons in support of those adverse credibility findings. The credibility findings cannot be said to lack an evident and intelligible justification and were open for the reasons given by the Tribunal. No jurisdictional error is made out by anything said by the applicant from the bar table. 

Grounds of Review

1. The grounds in the application are as follows:

   1. The Tribunal's finding that I will not suffer significant harm in Lebanon is contrary to the evidence provided.

   2. The Tribunal misunderstood my fear of harm and misapplied the law.

   3. The Tribunal failed to accept that I will be subjected to serious harm for the reason of my political opinion as well as other factors and contrary to its finding my claim is genuine and not fabricated.

2. Ground 1 is in substance a disagreement with the adverse credibility findings made by the Tribunal and does not identify any jurisdictional error. 

3. In relation to ground 2, on the face of the material before the Court, the Tribunal correctly understood the applicant’s claims and correctly identified and applied the relevant law. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal afforded the applicant procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 2.

4. In relation to ground 3, this reflects a disagreement with the adverse findings by the Tribunal. For the reasons given, the adverse credibility findings were open on the material before the Tribunal. Ground 3 fails to make out any jurisdictional error. 

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017