DYF17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1052
•20 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1052
File number(s): MLG 1912 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 20 November 2023 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Lebanon – claim of fear of harm from own family – claim of sale of alcohol in shop business operated by applicant – whether failure to consider claim of real chance of serious harm or real risk of significant harm from applicant’s family – whether Immigration Assessment Authority asked the wrong question, failed to consider the review material, or made a legally unreasonable or irrational decision by failure to consider certain country information – whether error is material – writs issued Legislation: Migration Act 1958 (Cth) ss 5H, 36, 473CB, 473DB, 473DC, 473DD, 474, 476 Cases cited: Applicant WAEE v Minister for Immigration, Citizenship, Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 73 ALD 321; (2003) 197 ALR 389; (2003) 77 ALJR 1088
ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228
EVA17 v Minister for Immigration and Border Protection [2018] FCFC 214; (2018) 262 FCR 304
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of last submission/s: 27 July 2022 Date of hearing: 27 July 2022 Place: Perth Counsel for the Applicant: Mr M Kenneally Solicitor for the Applicant: WLW Migration Lawyers Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: The Australian Government Solicitor ORDERS
MLG 1912 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DYF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
20 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the Second Respondent made on 21 August 2017.
3.A writ of mandamus issue requiring the Second Respondent to re-determine its review of the decision of the delegate of the First Respondent made on 16 May 2017, and to determine it according to law.
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 LUCEV
Before the Court is an application under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review filed by the applicant, DYF17, in the Melbourne Registry of this Court. The judicial review application was amended twice, latterly by a further amended judicial review application filed on 29 June 2022 (“Judicial Review Application”). The Judicial Review Application seeks to review a decision of the Immigration Assessment Authority (“Authority” and “Authority Decision” respectively) to affirm a decision of a delegate (“Delegate” and “Delegate Decision”) of the now Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant DYF17 a Temporary Protection visa (“TP Visa”).
The Court has before it the following materials:
(a)the Court Book (“CB”), which was marked as Exhibit 1;
(b)the affidavit of Saddiqa Habib (“Habib Affidavit”) dated 9 June 2022 and the documents annexed to it, including an interview between DYF17 and the Delegate dated 11 January 2017;
(c)the affidavit of Emma Mulrooney (“Mulrooney Affidavit”) affirmed 17 June 2022 and the document annexed to it, a United States Department of State “Country Report on Human Rights Practices in Lebanon” from 2016 retrieved from the online resource Refworld (“USDS Lebanon Report 2016”);
(d)DYF17’s written submissions dated 29 June 2022 (“DYF17’s Submissions”);
(e)the Minister’s written submissions dated 13 July 2022 (“Minister’s Submissions”); and
(f)the transcript of the hearing before this Court on 27 July 2022 (“Transcript”).
There were four grounds raised in the Judicial Review Application, but grounds 3 and 4 were abandoned at hearing: Transcript, p 2. Grounds one and two are set below out at [9] and [24] respectively.
RELEVANT BACKGROUND PRIOR TO THE AUTHORITY DECISION
The relevant background prior to the Authority Decision is as follows:
(a)DYF17 is a Sunni Muslim Lebanese citizen, born in 1970: CB 14 and 200 at [9];
(b)DYF17 retired from the Lebanese Army in 2012, having served in it since 1989, and having been an administrative staff sergeant who, upon retirement, was entitled to an Army pension and superannuation: CB 200 at [9];
(c)DYF17 arrived in Australia on 30 May 2013: CB 160;
(d)on 10 October 2016 DYF17 applied for the TP Visa: CB 45-112;
(e)in the TP Visa application: CB 90, DYF17 made the following claims:
(i)he wished to open a small premises to sell alcohol in his area of residence in Lebanon and had been threatened; and
(ii)the worsening security situation in Lebanon,
caused him to fear harm;
(f)on 11 January 2017 DYF17 attended an interview with the Delegate: CB 155-156, Habib Affidavit, Annexure HK-3; and
(g)on 16 May 2017 the Delegate’s Decision was to refuse the TP Visa application: CB 157-170.
AUTHORITY DECISION
The matter was referred to the Authority and on 23 June 2017 DYF17’s representative provided a new submission (“DYF17’s New Information”) to the Authority which included new information about the security situation in Lebanon: CB 189-194. On 21 August 2017 the Authority Decision affirmed the Delegate’s Decision: CB 198-211.
In the Authority Decision the Authority:
(a)found DYF17’s New Information did not satisfy s 473DD of the Migration Act and therefore could not be considered: CB 199-200 at [6]-[8];
(b)summarised the relevant information relating to DYF17’s background and claims: CB 200-201 at [9];
(c)set out the relevant legislative provisions of the Migration Act: CB 201-202 at [10]-[11];
(d)summarised DYF17’s claims for leaving Lebanon: CB 202 at [13]-[15];
(e)accepted that DYF17 wished to supplement his pension, that he was unable to undertake physical labour and that the idea of an alcohol shop was an attractive one to him: CB 202 at [16];
(f)accepted that DYF17 is Sunni Muslim, and that his parents, siblings and neighbours objected to him becoming involved in the sale of alcohol, and further accepted that DYF17 had been verbally threatened not to open the alcohol shop, that his car was damaged and that anonymous threats had been made to him, which included threats to harm his children and a threat that he should leave the area: CB 202 at [12] and [16];
(g)considered it was implausible that, if DYF17 had a well-founded fear of harm from his neighbours, he would not mention this at the entry interview: CB 203 at [17];
(h)was not satisfied that if DYF17 was faced with real or substantial threats to himself and his children, he would not report those threats to the authorities (in Lebanon) and was satisfied that DYF17 did not suffer any harm as a result of the threats, and was satisfied that DYF17 does not face a real chance of serious harm arising from these threats should he return to Lebanon: CB 203 at [17];
(i)was not satisfied that DYF17 faced a real chance of any harm were he to proceed with opening the alcohol shop: CB 203 at [18]-[19];
(j)considered DYF17’s claims about being extorted for money by a person named K and was prepared to accept that a person named K tried to extort money from DYF17 and that DYF17’s wife had sought and obtained police intervention, but did not accept the claim that DYF17 would kill K or that K would kill DYF17: CB 203-204 at [20]-[21];
(k)considered DYF17’s claims about instability and fighting in Lebanon which DYF17 claimed he was at risk from and noted a December 2015 DFAT Country Information Report on Lebanon (“DFAT Lebanon Report 2015”), and found that DYF17 would not face a real chance of serious harm due to his ethnicity, religion or from any sectarian or generalised violence should he return to Lebanon: CB 204-205 at [22]-[25];
(l)that Lebanese citizens seeking asylum elsewhere do not commit a crime under Lebanese law by doing so, and that generally no stigma is accorded to returning asylum seekers who would not be distinguishable from the broader community or susceptible to any form of discrimination or violence: CB 205 at [26];
(m)there was no information to indicate that DYF17 would be arrested or charged for any reason on return to Lebanon: CB 205 at [26];
(n)when the Delegate put the information in the two preceding subparagraphs to DYF17 for comment at the end of the interview with the Delegate DYF17 provided no response other than to restate his claims: CB 205 at [26];
(o)concluded that DYF17 does not face a real chance of serious harm should he return to Lebanon: CB 205 at [27];
(p)found that DYF17 did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act, and did not meet s 36(2)(a) of the Migration Act: CB 205 at [28];
(q)in relation to an assessment of complementary protection found that DYF17 did not face a real chance of serious harm arising from:
(i)DYF17’s previous plans to open the alcohol shop;
(ii)any plans to open the alcohol shop should he return to Lebanon;
(iii)the extortion threat from K;
(iv)his ethnicity or religion, or from any sectarian or generalised violence; or
(v)from being a returned asylum seeker,
and because a real chance and real risk have been found to equate to the same threshold was satisfied that DYF17 did not face a real risk of significant harm for any, or any combination of, the above reasons, and that there were no claims, and no other evidence before the Authority, that DYF17 may face a real risk of significant harm for any other reason: CB 206 at [31]-[32];
(r)found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Lebanon that there was a real risk that DYF17 would suffer significant harm, and that DYF17 therefore did not meet s 36(2)(aa) of the Migration Act: CB 206 at [33]; and
(s)affirmed the Delegate’s Decision to refuse DYF17 the TP Visa: CB 206.
LITIGATION HISTORY IN THIS COURT
The litigation history of this matter in this Court is as follows:
(a)the originating application was filed on 4 September 2017;
(b)on 16 May 2018 consent orders were made by a Registrar of the Court, including an order that the Judicial Review Application be listed for a final hearing on a date to be advised before Judge Wilson;
(c)an amended originating application was filed on 26 September 2018;
(d)in early 2019 Judge Wilson was appointed to the then Family Court of Australia;
(e)the matter was docketed to the currently presiding Judge in November 2021, whereupon the matter was listed for a directions hearing on 19 November 2021;
(f)at the directions hearing on 19 November 2021 the matter was listed for hearing on 27 July 2022;
(g)a further amended originating application (the Judicial Review Application) was filed on 29 June 2022; and
(h)the matter was heard on 27 July 2022.
JUDICIAL REVIEW APPLICATION
The requirement for material jurisdictional error
The Authority Decision may be set aside on judicial review if there is jurisdictional error in the Authority Decision: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24. To constitute jurisdictional error, any error in the Authority Decision must be material in the requisite sense as explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 177 ALD 464; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] and [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 as involving a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred, the existence or non-existence of a realistic possibility that the decision could have been different being a question of fact in respect of which an applicant for judicial review on the ground of jurisdictional error bears the onus of proof.
Ground one
Ground one of the Judicial Review Application is as follows:
1.The IAA failed to consider the applicant’s claim that he faced a real chance of serious harm or real risk of significant harm from his family.
Particulars
a.The applicant claimed to fear serious harm within the meaning of s 5J(5) or significant harm within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth) from his family for having opened an alcohol shop.
b. The IAA failed to consider the claim.
c.Alternatively, the IAA failed to consider an integral part of the claim, that the applicant had not reported the threats from his family to police because he did not want to make a police report against his own family.
DYF17’s Submissions – ground one
In relation to ground one DYF17 submitted that:
(a)the Authority failed to consider DYF17’s fear of harm from his own family, or an integral part of that claim. The relevant principles are well settled: Applicant WAEE v Minister for Immigration, Citizenship, Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [46]-[47] per French, Sackville and Hely JJ; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ;
(b)the Authority did not make any express findings as to whether DYF17 had received threats from his family or faced a risk of harm from his family in the future. Further, the Authority’s reasons for disposing of DYF17’s claim to fear harm for reason of having opened an alcohol shop support an inference the claim was overlooked. The Authority’s reasoning was as follows:
(i)the Authority accepted that DYF17’s family objected to the alcohol shop, and that DYF17 had received threats: Authority Decision, CB 202 at [16]. The Authority drew an adverse inference from DYF17’s failure to disclose the claim in his entry interview: Authority Decision, CB 203 at [17];
(ii)the Authority found that it was implausible that the “applicant had a well-founded fear of harm from his neighbours” as he had not reported the threats to the police, and had not sent his wife and children to live with his parents to avoid harm: Authority Decision, CB 203 at [17]; and
(iii)finally, the Authority concluded that if DYF17 attempted to open an alcohol shop “he may face further opposition and threats from his neighbours”, but his neighbours would not act on those threats: Authority Decision, CB 203 at [18];
(c)the conclusions in the Authority Decision, CB 203 at [17] and [18] relate only to DYF17’s fear of harm from his neighbours. Further, the Authority made no reference in the Authority Decision, CB 203 at [17] to DYF17’s claim that he did not report the threats to the police because he did not want to report his family members. Nor did the Authority identify the potential difficulty in DYF17 sending his children to his family to avoid harm, in circumstances where DYF17 claimed his family had threatened him and his son. The Authority’s failure to deal with these issues reinforces that the Authority was not cognisant of DYF17’s claim to fear harm from his family; and
(d)alternatively, if the Authority implicitly considered DYF17’s risk of harm from his family in the Authority Decision, CB 203 at [17] and [18], the Authority failed to consider an integral part of that claim that DYF17 had not reported the threats to police in the past because he did not wish to make such a report against his family.
Minister’s Submissions - ground one
In relation to ground one the Minister submitted that:
(a)ground one claims the Authority failed to consider the threat to DYF17 from his family. That is not a fair reading of the Authority Decision;
(b)the Authority Decision, CB 202 at [16] plainly accepts that DYF17’s parents and siblings did not approve of the idea of him opening a liquor store and that DYF17 may have been threatened, but, at CB 203 at [17]-[18], the Authority found that any threats DYF17 may have received were not regarded seriously by him and that he did not and would not suffer harm from them;
(c)it is an artificial and unfair reading to suggest that the Authority Decision at CB 203 at [17]-[18] is not intending to address all the threats it has identified at CB 202 at [16], including any from DYF17’s parents and siblings; and
(d)the language the Authority uses is of sufficient generality to encompass any threats from DYF17’s parents and siblings: WAEE at [47] per French, Sackville and Hely JJ. Nor did the Authority have to specifically mention every detail of DYF17’s evidence to the Delegate, such as that he had not reported the threats from his parents and siblings: WAEE at [46] per French, Sackville and Hely JJ.
Consideration of ground one
The factual material concerning ground one relates to the findings of the Authority in the Authority Decision at CB 202-203 at [16]-[18], which are in the following terms:
16.It is plausible, and I am prepared to accept that the applicant wanted to supplement his pension, that he is unable to undertake physical labour, and that the idea of an alcohol shop appeared as an attractive option for him. There is nothing in the information before me that suggests it is illegal to sell alcohol in Lebanon or that the government or other authorities take action or impose sanctions against those who sell alcohol. Nevertheless, I am prepared to accept that as the applicant is Muslim, his parents, siblings and his neighbours objected to him becoming involved in this business. Similarly, while he has said that he lives in a demographically mixed area where everyone coexists peacefully as “brothers”, I am prepared to accept that his neighbours may have been upset at the idea of a shop selling alcohol in their immediate area. I accept that he has been verbally threatened to not open the shop, that his car was damaged and that there have also been anonymous threats made to him which included threats to harm his children and a threat that he should leave the area.
17. The applicant said that because of these threats, he did not open the shop and left Lebanon, but this is different to his claim at the initial entry interview that he left Lebanon because of a lack of economic opportunity. I consider it is implausible that if the applicant had a well-founded fear of harm from his neighbours, he did not mention this at the initial interview as being at least part of the reason for leaving Lebanon. I also take into account that the applicant did not report the threats to the police or seek any protection from the authorities. He has provided evidence that on a later occasion, his family reported an extortion attempt and obtained police assistance (this is considered further below) and I also note that he himself served with the Lebanese Army for many years in an administrative and headquarters role. I am not satisfied that if the applicant was faced with real or substantial threats to himself and his children, he would not report those threats to the authorities. I also note that despite the fact that his wife and children remained in contact with his parents and siblings, he did not send his family to stay with his parents or siblings. I am not satisfied that he would not have taken steps to protect his family if he believed that the threats were real or substantial. Considering all of this, I am not satisfied that the threats were any more than empty threats, or that the applicant abandoned his plans to open or was otherwise unable to open the shop, and left Lebanon because of these threats. I am satisfied that he did not suffer any harm as a result of these threats. I am satisfied that he does not face a real chance of serious harm arising from these threats should he return to Lebanon.
18. Looking to the future, the applicant claims that if he returns to Lebanon he will open the alcohol shop and his problems will continue. In his submission to the IAA he said that given the current economic situation in Lebanon, there is a real chance that he will become destitute if he does not sell alcohol. I have found above that while he faced threats when he first decided to open the shop, these were not acted on and did not lead to any harm to the applicant. I have found that these threats were not the reason that he left Lebanon but I accept that if he returns to Lebanon and proceeds to open an alcohol shop, he may face further opposition and threats from his neighbours. On the evidence before me however, I am not satisfied that these threats will be different to the threats he has received in the past, or that they are more likely to be acted upon or lead to harm. Having regard to this, I am not satisfied that the applicant will face a real chance of any harm should he proceed with opening the alcohol shop.
It is also convenient to note the following passages from the Authority Decision:
(a)the Authority’s description of DYF17’s claims in the TP Visa application as “claims to fear harm from his family and neighbours because he wanted to open an alcohol shop”: CB 199 at [2];
(b)part of the Authority’s summary of DYF17’s claims included the following at CB 201 at [9]:
•At his initial entry interview in 2013 he said that he left Lebanon because it is not a safe place to live. He said that there is no work for him there, he has to support his children and he does not feel safe. He said that his principal reason for leaving was a lack of economic opportunity.
•In his TPV application in 2016 and at the interview he said that in 2013 he wanted to start a shop and sell alcohol in his neighbourhood. He said that his family and neighbours objected to this and threatened him. Someone damaged his car and left a note saying that if he sold alcohol they would kidnap his son (then aged 15). Someone also told him that he had to leave Lebanon because of the alcohol shop. That is why he came to Australia.
(c)at CB 202 at [15]:
15. The applicant claims that as well as receiving objections from his family and his neighbours, he also received verbal threats and one day his car was damaged. A note was left on the windscreen saying that if he opened the shop, his son would be kidnapped. He also received threats that his children would be harmed, and someone told him that he had to leave Lebanon because of the shop.
It is well established that failure to consider an integer of an applicant’s claim may constitute error where that claim relates to a mandatorily relevant criterion under the Migration Act: Dranichnikov v Minister for Immigration and Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 73 ALD 321; (2003) 197 ALR 389; (2003) 77 ALJR 1088 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [47]-[50] per Judge Lucev. In Htun at [42] per Allsop J it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.
The Full Court of the Federal Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [34] per Reeves, O’Callaghan and Thawley JJ observed as follows:
…a Tribunal charged with “review” may commit jurisdictional error in failing to exercise the jurisdiction it was contemplated it would exercise, if – for example – it does not engage in an active intellectual process or give proper, genuine and realistic consideration to:
•a ‘substantial, clearly articulated argument relying upon established facts’ – see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, with whom Hayne J agreed;
•a claim ‘raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review’ – see: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63] per Black CJ and French and Selway JJ; or
•a matter ‘that is an essential integer to an applicant’s claim or that would be dispositive of the review’ – see: ETA067 v The Republic of Nauru (2018) 360 ALR 228 at [14] per Bell, Keane and Gordon JJ.
In EVA17 v Minister for Immigration and Border Protection [2018] FCFC 214; (2018) 262 FCR 304 at [36] per Perry, Derrington and Wheelahan JJ the Full Court of the Federal Court observed as follows:
Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. In [Applicant] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46]-[47] French, Sackville and Hely JJ held:
[46]It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 62 ALD 225; 180 ALR 1 at [87]-[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47]The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Thus, while the Court can infer a failure to consider a claim if the Authority did not expressly mention a claim in the Authority Decision, it must read the reasons in the Authority Decision as a whole, but such an inference ought not too readily be drawn where the reasoning in the Authority Decision is otherwise comprehensive and the issue has at least been identified at some point: WAEE at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ.
There is no doubt that the claim with respect to fear of harm from DYF17’s family was actually made and clearly articulated, and was identified by the Authority: CB 199 at [2] and 201 at [9]. Whilst the Authority found it implausible that DYF17 had a well-founded fear which he did not mention at the initial entry interview as being at least part of the reason for leaving Lebanon, that finding fails to pay proper regard to DYF17’s initially stated reason for leaving which was a lack of economic opportunity. No doubt the inability to open an alcohol shop in circumstances where the Authority was prepared to accept that DYF17 wanted to supplement his pension, and was unable to undertake physical labour, might, broadly and properly construed, be viewed as a lack of economic opportunity. Thus, the Authority’s finding that the reason for DYF17 leaving as given at the initial entry interview, being a lack of economic opportunity, was a different reason to the threats being made, is, in the Court’s view neither correct nor logical. In any event, the Authority did ultimately identify the claim of fear of harm from family made by DYF17, and the question in the present circumstances is whether it considered the claim.
The Authority accepted that the opening of an alcohol shop by DYF17 was not approved by “his parents, siblings and his neighbours”: CB 202 at [16]. This identified DYF17’s family and neighbours as two groups who objected to DYF17 opening an alcohol shop. Those two groups are plainly separate and distinct, and there is no reason arising from the Authority Decision to merge the concept of family into the concept of neighbours. Importantly, the Authority also recognised that there had been threats, which were “anonymous”: CB 202 at [16] and that they included threats to harm DYF17’s children, or at least, his son.
A plain reading of CB 202-203 at [16]-[18] reveals that the Authority only considered a fear of harm in relation to DYF17’s neighbours and did not consider a fear of harm from a separate group, being DYF17’s family, in respect of which he had made claims of a fear of harm. Merely because the family claim has been identified, and a related claim (in relation to the neighbours) has been considered, that is not sufficient for the Court to be able to infer that the Authority did consider the family claim, because the failure here is not a mere failure to deal with evidence, but rather a failure to consider a sub-set or essential integer of a claim, and as such is indicative of omission but not consideration: ETA067 v The Republic of Nauru [2018] HCA 46; (2018) 92 ALJR 1003; (2018) 360 ALR 228 (“ETA067”) at [14] per Bell, Keane and Gordon JJ; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [50], [52] and [64] per Kenny, Griffiths and Mortimer JJ; Htun at [42] per Allsop J. Put slightly differently, the family claim, as it was outlined in DYF17’s claims before the Delegate, was such a discrete and essential part of DYF17’s claims that the Authority ought not only to have recognised it, but also to have properly and separately considered it: ETA067 at [14] per Bell, Keane and Gordon JJ; WAEE at [48] per French, Sackville and Hely JJ.
The failure to consider the fear of harm from family is also reflected in the failure to consider the possible threat from family members in circumstances where the Authority accepted that anonymous threats had been made, including threats to harm DYF17’s children, giving rise to the possibility that DYF17 did not report family threats to the police because of the threat of family violence, not only towards himself, but also his children, which might also have been a possible explanation for a failure to send immediate family members, particularly his children, to stay with parents or siblings: cf CB 203 at [17].
In the circumstances the failure to consider the possible threats from family, and the consequent likely fear of harm that DYF17 claimed he might suffer, was plainly an error. It was further a material error (and the Court did not understand the Minister to contend otherwise in relation to ground one) because, had it been considered, the threats from family gave rise to a distinct possibility that the Authority Decision could have been different: MZAPC at [2] and [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
In the circumstances, ground one is made out and establishes jurisdictional error in the Authority Decision.
Ground two
Ground two of the Judicial Review Application is as follows:
2. The IAA asked itself the wrong question, failed to consider the review material, or made a legally unreasonable and/or irrational decision by failing to consider the United States Department of State, 2016 Country Reports on Human Rights Practices – Lebanon 3 March 2017.
Particulars
a.The United States Department of State, 2016 Country Reports on Human Rights Practices – Lebanon 3 March 2017 (USDS Report) was before the delegate (see footnote 4, CB 165).
b.The IAA erroneously found the USDS Report was ‘new information’, and that the IAA could not consider it pursuant to s 473DD.
c. The IAA therefore either:
i.asked itself the wrong question by seeking to determine if the USDS Report satisfied the criteria in s 473DD;
ii.failed to consider the review material pursuant to s 473DB; and/or
iii.made an irrational or unreasonable decision by failing to consider the USDS Report.
d. The error was material as:
i.the USDS Report was relevant to the applicant’s claim that he did not report threats to the police because the police were corrupt and ineffective; and/or
ii.the USDS Report was relevant to whether the security situation in Lebanon would deteriorate placing the applicant at risk of serious or significant harm from generalised violence or sectarian violence as a Sunni.
DYF17’s Submissions - ground two
In relation to ground two DYF17 submitted that:
(a)the Authority made an error in characterising the United States Department of State, 2016 Country Reports on Human Rights Practices – Lebanon 3 March 2017 (“USDS Lebanon Report 2016”) as “new information”: CB [4];
(b)the Authority is bound to consider the “review material”: Migration Act, s 473DB. The review material is the material provided to the Authority by the Secretary for the Department: Migration Act, s 473CB(1). The Authority must not consider “new information”, which is defined as information that was not before the Delegate at the time of the decision: Migration Act, s 473DC(1), unless satisfied the information meets the criteria in s 473DD of the Migration Act;
(c)DYF17’s representative provided written submissions to the Authority. The submissions argued DYF17’s failure to report threats relating to the alcohol shop was reasonable given his view that police would not help him as they are corrupt. The submission was supported by extracts from the USDS Lebanon Report 2016 referring to the general disintegration of law and order in Lebanon and that corruption was endemic in state institutions: CB 192-193. The USDS Lebanon Report 2016 also contained information regarding the security situation in Lebanon at p 2:
The country was increasingly affected by the Syrian crisis, which further polarized its politics, paralyzed many state institutions, generated a massive humanitarian refugee crisis, depressed the economy, inflamed sectarian tensions, and degraded national security. The continued spillover of violence led to the unlawful deprivation of life throughout the country, particularly in Tripoli, Arsal, and the southern suburbs of Beirut, by nonstate actors, including gangs and terrorist organizations.
(d)the Authority found the USDS Lebanon Report 2016 was “new information” as it was not before the Delegate and did not satisfy s 473DD of the Migration Act: CB 199 at [7]. This was an error as the USDS Lebanon Report 2016 was before the Delegate: CB 165, fn 4. The Authority’s error may be characterised as follows:
(i)the Authority failed to consider the review material pursuant to s 473DB of the Migration Act;
(ii)the Authority asked itself the wrong question, by considering whether or not the USDS Lebanon Report 2016 satisfied s 473DD of the Migration Act; and
(iii)the Authority’s failure to consider the USDS Lebanon Report 2016 was legally unreasonable;
(e)there was direct evidence of a claim made before the Delegate by DYF17 that it was not possible, due to bribery, for DYF17 to access state protection from the police in Lebanon: Habib Affidavit, Annexure HK-3, p 22, ln 305-306;
(f)it might have been open to the Authority to infer from the statements in the USDS Lebanon 2016 Report concerning institutional corruption and general violence and lawlessness in Lebanon that the police in Lebanon are corrupt and not necessarily effective in providing protection, and had the Authority taken that information into account it might not have drawn an adverse inference from DYF17’s failure to report threats to the police; and
(g)the error was material. Had the Authority considered the submission and USDS Lebanon Report 2016, it may have not made the adverse finding against DYF17 in the Authority Decision at CB 203 at [17] for not reporting the threats to the police. Alternatively, had the Authority noted the USDS Lebanon Report 2016 information regarding the security situation, it may have considered DYF17’s written submissions to the Authority that security in Lebanon would deteriorate.
Minister’s Submissions - Ground two
The Minister’s submissions on ground two were as follows:
(a)the second ground claims the Authority erred by failing to have regard to the USDS Lebanon Report 2016;
(b)the Authority was wrong at CB 199 at [7] to regard the USDS Lebanon Report 2016 as “new information” given it had been cited in the Delegate’s Decision at CB 165 fn 4; and
(c)DYF17 has not discharged his onus of showing that the error was material as required by MZAPC at [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ. The country information at CB 192 fn 12 that government control of corruption in Lebanon was poor could not realistically have led the Authority not to rely on DYF17’s failure to report threats to the authorities: CB 203 at [17] and thereby find in his favour. The Authority noted that on other occasions DYF17 had obtained police assistance, and the country information is too general to realistically have led the Authority to come to a different decision on whether DYF17’s fears were well founded. Similarly the country information quoted in DYF17’s submissions is too general to realistically have led the Authority to reason differently as to whether DYF17 faced a well-founded fear of harm from generalised violence based on DYF17’s specific circumstances: CB 204-205 at [22]-[25] and thereby find in his favour.
Consideration of Ground 2
Sections 473DB, 473DC and 473DD of the Migration Act provide as follows:
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
…
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The Minister concedes that the Authority made an error in finding that the USDS Lebanon Report 2016 was new information on the basis that the report was not before the Delegate at the time of the Delegate’s Decision: Migration Act, s 473DC(1), and was therefore information that the Authority must not consider, unless the exceptions in s 473DD of the Migration Act were met. There is no doubt that the USDS Lebanon Report 2016 was before the Delegate, it being specifically noted in the Delegate’s Decision at CB 165 at fn 4. It follows therefore that there was an error in that there was a failure by the Authority to consider the review material, and in particular the review material which was relevant to claims made by DYF17 in relation to both corruption and the security situation in Lebanon. The Authority therefore failed in its primary task of considering the “review material”: Migration Act, s 473DB.
The question arises however whether the failure to consider the USDS Lebanon Report 2016 was material in an MZAPC sense. The Authority had specific country information in the form of the DFAT Lebanon Report 2015, which it relied on, as to the threats of sectarian or generalised violence, finding that DYF17 would not face a real chance of serious harm due to his ethnicity, religion or from any sectarian or generalised violence should he return to Lebanon: CB 204-205 at [22]-[25]. It is trite to observe that much might change in a country, particularly in the Middle East, in the space of 12 months. Albeit that the country information in the USDS Lebanon Report 2016 was, seemingly, more generalised than that in the DFAT Lebanon Report 2015, it was also more recent. In circumstances where there was:
(a)more recent country information from another reputable source which, although more general in its nature, conflicted with earlier country information; and
(b)direct evidence from DYF17 that, in his view, he was not able to be afforded state protection by the police in Lebanon,
it was necessary for the Authority to consider the USDS Lebanon Report 2016, and it is possible, given that it was more recent and from a reputable source, that it could (not would) have given rise to a distinct possibility that, on proper consideration, the Authority Decision could have been different: MZAPC at [2] and [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
In the circumstances, ground two is made out and establishes jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that DYF17 has established jurisdictional error in relation to grounds one and two of the Judicial Review Application.
It follows from the fact that jurisdictional error has been established in the Authority Decision that writs of certiorari and mandamus ought to issue. There will be orders accordingly.
There will also be an order that the name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 20 November 2023
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