DZT18 v Minister for Home Affairs
[2019] FCCA 734
•26 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZT18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 734 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal failed to take into account when assessing future risk of harm that applicant had already been convicted for terrorist related offences – whether there was a claim before the Tribunal that the applicant faced a real risk of significant harm because he might be detained or imprisoned and would be subjected to torture and to poor prison conditions – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2A), 476 |
| Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 |
| Applicant: | DZT18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2145 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 December 2018 |
| Date of Last Submission: | 20 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Kewley |
| Solicitors for the Applicant: | Firmstone & Associates |
| Solicitors for the First Respondent: | Ms K Hooper of Minter Ellison |
ORDERS
The applicant has leave to rely on the ground stated in MFI1.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2145 of 2018
| DZT18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Lebanon, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Background to application
The applicant first came to Australia on a tourist visa on 26 June 2005 before returning to Lebanon. The applicant returned to Australia on 8 May 2010 on a Sponsored Family Visitor (Class UL-679) visa. He applied for a Protection visa in May 2010 (first PV application), but a delegate of the Minister refused that application. On 30 August 2011 the Refugee Review Tribunal affirmed the delegate’s decision.
In November 2012 the applicant lodged a second application for a Protection visa. That application was accepted as valid because of the Full Federal Court’s decision in SZGIZ v Minister for Immigration and Citizenship.[1] On 18 May 2015 a delegate of the Minister refused to grant the applicant a Protection visa and, on 20 July 2018, the Tribunal affirmed that decision.
[1] [2013] FCAFC 71
Claims for protection
The applicant stated his claims for protection in a statement dated 18 May 2010 that formed part of his application for a Protection visa.[2] It is the same as the statement on which the applicant relied in his first PV application.[3]
[2] CB157-160
[3] CB41-44
The applicant said that on 20 May 2007 he sold a motor vehicle to a Mr M for which the applicant had received part payment. The applicant arranged to meet Mr M on 21 May 2007 to collect the balance of the purchase price, but Mr M did not come. The applicant spent the rest of the day attempting to call Mr M, but there was no answer. Later in the day a Mr J informed the applicant that Mr M had been arrested by Lebanese intelligence, and that Mr M’s arrest was associated with a conflict between Fateh El Islam militants and the Lebanese army at Mahar Bared refugee camp.
In the evening the applicant received a telephone call from Lebanese intelligence requesting that he attend their headquarters in Ashrafieh Beirut. The applicant attended the intelligence headquarters the following day. He remained at the headquarters all day without being questioned until the evening. The applicant was questioned extensively about his alleged association with Mr M. After the applicant explained he had sold a vehicle to Mr M, and he showed the documents evidencing the sale, the applicant was released.
The following Saturday the applicant received a further telephone call from the Lebanese intelligence ordering the applicant again to appear at their headquarters. The applicant arrived there at around 6 pm. The applicant was questioned, and he was told he would be spending the rest of the night locked up at headquarters. The applicant was interrogated over the next five days, with each interrogation session lasting approximately three hours. During each interrogation the applicant was tortured. The applicant said the interrogators placed a large piece of timber between his legs and hung him by his legs; he was beaten with a steal object, and electric shock was applied in an effort to make the applicant confess he had some association with the militants.
The applicant was then transferred to Rumiah prison. He was held there for 24 months and one day with other detainees who had been convicted of terrorism charges. The applicant continued to suffer periodic interrogation and torture. He said he was tortured by such methods as electronic shock and by being beaten with a steel chain. The applicant was not permitted access to medical services or legal representation, and no charges were brought against him.
The applicant was released without charge on his signing an undertaking not to discuss any aspects of his imprisonment with any third person. The applicant was warned his activities would continue to be monitored.
In September 2009 members of Lebanese intelligence attempted to kill the applicant. They shot the applicant in his face when entering his home. The applicant has a scar on his cheek where the bullet penetrated. He reported the incident to the police. The police have not investigated the matter, and the applicant was advised to drop the matter for his own safety. The applicant’s lawyer advised him to leave Lebanon because the applicant’s lawyer feared that further attempts would be made on the applicant’s life. The applicant left Lebanon in 2010.
Course of proceeding before Tribunal
By letter dated 12 January 2015 the applicant’s representative provided to the delegate a “Court Order”.[4] That is a reference to two documents, one in Arabic, and one in English. The English language document purports to record orders made by the “Judicial Council” condemning the applicant and two other persons with the death penalty and the stripping of all civic rights for offences stipulated by articles of the “Penal Code”.
[4] CB199
By email sent on 28 January 2015 the applicant’s representative informed the delegate that the applicant “instructs that he has recently received Lebanese criminal court documents, which has sentences [sic] him in absentia, prescribing the death penalty”.[5] The representative stated that “we have previously submitted the relevant court documents and translation”, but the representative enclosed “a further copy of same as well as a signed consent for the Department of Immigration to examine the legitimacy of documents or make relevant enquiries with the Lebanese authorities”. The email attached what appears to be the same copy in Arabic of the document the applicant’s representative enclosed with his letter dated 12 January 2015.
[5] CB203
The translation of the purported orders is as follows:
And WHEREAS the defendants have committed more than one criminal act, this puts them in a position of conclusive evidence. The Council, having the right to enter judgment, and pursuant to Article 205 of the Penal Codes, believes that their penalties should be integrated so that each of them receives the severest penalty only.
Therefore
First: To convict the defendants, [the applicant], . . . of the crime set forth in Article 4 coupled with Articles 2 and 3 of Law 11/1/1958 and to bestow the death sentence upon them, deprive them of their civil rights and prevent them from disposing of their movable and immovable property. . . .
Second: To convict the defendants [the applicant], . . . of the offence set forth in Article 463/219 of the Penal Codes and imprison them for three years and to convict the defendant [the applicant] of the offence in accordance with Article 464/219 of the Penal Codes and imprison him for two years.
Third: To declare the innocence of the defendants the applicant], . . .with respect to the offence set forth in Article 463/454 of the Penal Codes for the lack of sufficient evidence against them;
Fourth: To convict the defendants [the applicant], . . .of the offence set forth in Article 72 weapons and imprison them for two years accordingly.
Fifth: To forbid the defendants from carrying weapons throughout their lives.
Sixth: Integration of penalties imposed on the defendants according to Article 205/Penal Codes whereas each of them receives the severest penalty only, i.e. capital punishment.
The applicant appeared before a differently constituted Tribunal (previous Tribunal member) on 21 November 2016. At the conclusion of that hearing the previous Tribunal member decided he would take steps to have the 2014 court order verified. The review was adjourned.
On 5 December 2016 the applicant’s representative provided the Tribunal with a “Court judgment and translation” and “correspondence from” a named person whom the representative described as an attorney (Mr Z).[6] The representative submitted the primary decision-maker “failed in his duty to properly investigate the legitimacy of our client’s claims that he faces execution in Lebanon”, and the representative invited the Tribunal “to thoroughly investigate this claim, noting our client has given consent to any appropriate procedures/investigation that the Tribunal may resort to including third party investigations”. The representative also stated “[o]ur client has provided evidence of a Lebanese court issuing a decree for his execution, and whilst the Tribunal may have some concerns about the reference to a middle name, such concerns may be (which our client instructs us is his father’s name) assuage [sic] by a proper and comprehensive investigation, which we would welcome”.
[6] CB329
The translation of the purported “Court judgment” indicates the judgment was issued by “The Lebanese Republic Judicial Council.” It provides a case number, indicating the proceeding commenced in 2012, a resolution number, and the date of the resolution. It also identifies the plaintiff (“Prosecutor General”) and three named defendants, one of whom is the applicant. The judgment then sets out the following information:
a)The charges made against the defendants, including the applicant. In relation to the applicant, it is stated he was “adversarially arrested on 13/09/2007 and released on 29/05/2009” and that an arrest warrant “was issued in his name and put into effect on 15/05/2014 after being tried in absentia”; and after identifying information of a similar nature in relation to the two other defendants, it is stated that the defendants “have recently, at the camp of Nahr el-Bared – in the North of Lebanon and outside it engaged in conspiring against the State national security, a felony punishable in Articles 270/271/339/316 of the Penal Code, in Arms Trade, a misdemeanour defined in Article 72 of the Arms Code and forgery and usage of forged material, a misdemeanour defined in Articles 463 and 470 of the Penal Code”.
b)It was established the applicant and the other defendants failed to appear before the Judicial Council “despite being duly notified”, and that the “proceedings were conducted in absentia and arrest warrants were issued against them”; the indictment, “the claim of the Public Prosecution at the Court of Cassation, the preliminary and interrogative investigations and all the papers were read and provided for verbal public discussion”; and that the public prosecution at the Court of Cassation “presented this case, and demanded the indictment of the above named accused on the charges of the alleged crimes”, asking for “the introduction of stricter penalties”.
c)The judgment then sets out what it describes as the facts in relation to the applicant and the other defendants. As for the applicant, the judgment refers to testimony the applicant had given on 26 May 2007 that the applicant had a relationship with MM and his brother AM, the relationship being based on a loan “he owed him and which his father, [SM], promised to pay”; that the applicant “provided weapons to Fath El Islam and committed fraud”; that in 2004 the applicant met AM and the applicant was directed by MM and a person named MK to sell mercury to a person named HA, but the transaction did not proceed because the mercury was fake; MM told the applicant he had 50 unused GLOCK pistols and asked the applicant to sell them to a person in Brital named AA, but the deal did not go through because “the two parties disagreed on the price and on how to transport the weapons”; MM asked the applicant to mediate with AA to purchase heavy weapons from him in Brital, but the deal did not go through; MM asked the applicant whether he knew any passport forgers; the applicant asked MM for money to purchase the weapons for MM in Brital and took passports from MM to have them forged after he contacted AA, who assured the applicant he would be able to forge the passports provided the applicant paid him “an amount of /800/AUD per passport”; AA produced two Danish and three Swedish passports which the applicant handed to MM “in return for $800 for each passport”; the applicant also produced a Lebanese passport to a person named HK “in return for $1,600”; the applicant handed two additional Lebanese passports to MM; the applicant tried to get two Lebanese passports for MM receiving $700 as down payment, but was unable to produce them; the applicant produced two forged driver licences in return for $200 and a forged ID of bad quality, which he shredded; and the applicant also “brought” AM a pistol with a silencer in return for $1,700, stating he obtained the weapon and forged documents from AM. After referring to testimony given by a person known as AMI or AA, this part of the judgment refers to the applicant having been interrogated by a judicial investigator on 13 September 2007 where he withdrew “this initial testimony”, as well as the testimony he gave before the military investigation, stating he was subjected to beatings. The applicant “clarified that he contacted [AM’s] family to ask them to settle the price of the vehicle he sold to [AM]. He added that [MM] did not ask him to buy weapons”, and other things.
d)After having set out the facts in relation to the other two defendants, under the heading “Third: By Law”, the judgment concludes the applicant was in contact with the terrorist group “Fath El Islam” meeting with members, leaders, and key figures of the group; the applicant attempted to sell red mercury on behalf of MM and AM, both of whom were members of the Fath El Islam; and that the applicant’s actions “were in contribution of the criminal and terrorist activities carried by Fath El Islam”; the applicant forged Lebanese ID and passports on behalf of MM “of Fath El Islam”; there was insufficient evidence that the applicant used the services of a forger; and the applicant “engaged in the provision of various weaponry on behalf of” Fath El Islam.
e)The judgment then concluded with the orders I have already set out.
The letter from Mr Z was as follows:
I, the undersigned, lawyer . . . declare that I am the agent of [the applicant] in criminal proceedings before the Justice Council has issued a judgment against him in absentia under . . . was spent his execution and has been suspended for almost two years and then released on bail.
Thereof, this statement was given to him
Respectfully: Attorney . . .
On 6 February 2017 the Tribunal received an email from an officer of the Department of Immigration and Border Protection (as the Department of Home Affairs was then known) who held the position of “Senior Migration Officer – Integrity Department of Immigration and Border Protection Australian Embassy Beirut”.[7] The email stated as follows:
We contacted the Lebanese authorities (informally) today in relation to this matter and were advised that the client is adversely known to them, and that the information in the report appears to be accurate. They advise further that the client has additional criminal matters pending and is known by a number of aliases in addition to the one he is using for the current matter. The Lebanese authorities advise caution in dealing with this client.
If you require anything further we will need to make a formal request. I expect the official response to take several months given past official dealings with host country authorities.
[7] CB466
In January and May 2018 the Tribunal made further attempts to obtain formal verification of the orders made by the Judicial Council against the applicant, but was unable to obtain verification.[8]
[8] CB618, CB644
Tribunal’s reasons
The Tribunal considered there were aspects of the applicant’s claims “that are demonstrably true, in particular that he was convicted of terrorism offences in 2014”.[9] The Tribunal, however, found the applicant had given “changing, conflicting and vague responses . . . over the course of time” and, for that reason, it did not accept the reason the applicant was convicted and sentenced to death was due to the applicant selling a car to Fatah al Islam members, or that the applicant spoke out against the Lebanese government or Hezbollah. Rather, the Tribunal accepted “the evidence as detailed in the Lebanese court report in 2014, the associated press reporting from 2014 and the email” from the Departmental Officer of 6 February 2017, and found that “the reasons underlying the applicant’s conviction and punishment in 2014 are that the applicant provided support to Fatah al Islam as detailed in the 2014 court decision”.
[9] CB685, [44]
The Tribunal accepted the applicant had been shot in 2009. The Tribunal found it was the applicant’s neighbour who shot the applicant, and that the applicant’s cousin was involved in the shooting.[10] The basis of the Tribunal’s finding is that at the interview before the delegate in relation to the first PV application the applicant said he knew the gunman who had shot him. It was a neighbour who had once been the applicant’s friend. The applicant said the gunman told the applicant that he had a brother who died in the Nahr-al-Bared conflict; and the neighbour shot the applicant because the intelligence security had told the neighbour that the applicant was responsible for the neighbour’s brother’s death.[11] The applicant also told the delegate that on the night of the shooting the applicant’s mother and sister were at home, and they rang the police. A doctor was called and the applicant was taken to a hospital where he stayed for four days. The applicant’s neighbour was taken to court and he was sentenced to six months imprisonment, but obtained early release when the applicant came to Australia.[12]
[10] CB701, [117]
[11] CB101
[12] CB101
The Tribunal was not satisfied that the applicant’s neighbour was connected with Lebanese intelligence. The Tribunal relied on the applicant’s having moved to the family residence in Tripoli where he remained until he left Lebanon for Australia and not being the subject of any further attacks. The Tribunal found that “if Lebanese intelligence genuinely wanted to locate and kill the applicant they would have done this in the period of eight months prior to his leaving Lebanon – and there were no such attempts”.[13] The Tribunal also did not accept that the applicant’s neighbour or cousin “genuinely attempted to kill the applicant”.[14] The Tribunal relied on the applicant’s having been in hospital for four days, and the minor punishments handed down by the Lebanese court to the applicant’s neighbour and cousin.[15] The Tribunal did not accept the applicant’s claim that the Lebanese police did not investigate the matters because the applicant himself said his neighbour and cousin were charged and convicted for their actions.[16]
[13] CB701, [118]
[14] CB701, [120]
[15] CB701, [120]
[16] CB701-702, [121]
The Tribunal did not accept the applicant was ever tortured while he was in Lebanon. The Tribunal found the applicant “was never able to provide specific and consistent information about Roumieh prison or of the alleged mistreatment he claimed he was subjected to while he was there”.[17] The Tribunal also referred to evidence the applicant had given before the delegate and the previous Tribunal member. Of particular significance to the Tribunal was that the applicant, when giving an uninterrupted account of what he claimed he experienced while in prison, did not once refer the particular forms of torture to which in his written statement the applicant claimed he had been subjected.[18]
[17] CB668, [17]
[18] CB709, [140]
Although the Tribunal was satisfied the applicant was in a prison somewhere in Lebanon, it was not satisfied the applicant was detained in Roumieh prison.[19] The basis of the Tribunal’s finding is that, in evidence he gave to the delegate and to the first Tribunal member, the applicant was unable to provide details that showed the applicant was detained at Roumieh prison. The Tribunal observed that when the applicant’s evidence to the first Tribunal member is considered closely, “it is apparent that the applicant has only given very general details that do little to convince the Tribunal that he was actually at Roumieh Prison for two years of his life”.[20]
[19] CB711, [147]
[20] CB711, [146]
The Tribunal did not accept that while he was in prison the applicant did not have access to legal representation. The Tribunal found that at the hearing before the first Tribunal member “the applicant went into great detail as to how he did have a significant level of legal representation from the lawyers and politician . . . and he had a significant level of contact with and support from his family, especially his mother and brother”.[21] Nor did the Tribunal accept the applicant’s claim that he needs mental health services.[22]
[21] CB711, [148]
[22] CB713, [166]
The Tribunal did not accept that there is a real risk that the death penalty will be carried out on him, or that there is a real risk that he will be tortured or mistreated if he returns to Lebanon in the foreseeable future.[23] The Tribunal relied on the letter from Mr Z, which the Tribunal interpreted as claiming that Mr Z:[24]
was the agent for the applicant in criminal proceedings before the Judicial Council in relation to the judgment issued against the applicant in absentia under number 30 of 2014 dated 24 October 2014, and claiming the applicant had ‘spent his execution’ and his sentence had been suspended for almost two years and then he had been released on bail.
[23] CB715, [179]
[24] CB715, [175]
The Tribunal found on the basis of Mr Z’s letter that:[25]
it appears that the operational period of the suspended sentence of two years has now passed and that while the applicant is still technically on bail, he appears to be no longer subjected to the death penalty as determined by the 2014 court decision.
[25] CB715, [175]
The Tribunal also relied on a report by the Department of Foreign Affairs and Trade on Lebanon dated 23 October 2017 (DFAT Report), and country information the applicant provided in relation to the death penalty in Lebanon. The Tribunal noted that since 1998 Lebanon has upheld an “unofficial moratorium on executions”, although in 2004 there were three simultaneous executions of individuals convicted of multiple murders; and that, despite the unofficial moratorium, judges continue to hand down death sentences. The Tribunal referred to Amnesty International recording significantly higher death sentences in 2016, with 126 Lebanese and Syrians sentenced to death for terrorism related offences, as well as murder and attacking the army;[26] and it also referred to the fact that not one of the persons who had been sentenced to death has been executed.[27]
[26] CB715, [178]
[27] CB715, [178]
The Tribunal considered whether the applicant faced a real risk of harm of being detained and imprisoned, and while detained or imprisoned being subjected to torture, or to cruel or inhuman treatment or punishment or degrading treatment by the Lebanese authorities, on the basis of the matters for which he had been convicted, as set out in the purported judgment of the Judicial Council. The Tribunal was not satisfied the applicant would be subjected to torture, or to cruel or inhuman treatment or punishment or degrading treatment by the Lebanese authorities.[28] The Tribunal relied on its finding that the applicant had not been subjected to torture when he was detained during 2007 to 2009, 11 years had passed since the applicant engaged in the offending conduct, the applicant “has already served his time and has been released on bail”, and the “operational period of the suspended sentence of two years” had passed so that “while the applicant is still technically on bail, he appears to be no longer subjected to the punishments as determined by the 2014 court decision”.[29]
[28] CB717, [188]
[29] CB717, [189]
The Tribunal also considered whether the applicant faced a real risk of harm by being detained and imprisoned, and while detained or imprisoned being subjected to torture, or to cruel or inhuman treatment or punishment or degrading treatment by the Lebanese authorities, on the assumption that, if the applicant were to return to Lebanon, the authorities “may seek to arrest the applicant” in relation to “the additional criminal matters pending in Lebanon”, as indicated by the Departmental email of 6 March 2017.[30] The Tribunal found there was no indication that, if the applicant were arrested for these outstanding criminal matters, it would be arbitrary and, for that reason, the Tribunal did not accept that if the applicant were to return he would be subject to arbitrary arrest and detention without further charges.[31] After noting that the DFAT Report indicates that those arrested in relation to sectarian violence or extremism face a particularly high risk of torture at the hands of authorities, the Tribunal found there is no indication that the applicant’s outstanding criminal matters have any connection to sectarian violence or extremism.[32]
[30] CB717-718, [190]
[31] CB717-718, [190]
[32] CB718, [191]
For these reasons, the Tribunal was not satisfied there is a real risk the applicant would be subjected to significant harm at the hands of the Lebanese authorities during initial investigations, or that he could be arbitrarily arrested and detained without further charges, or that he could be subject to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment, or that there is a real risk the applicant would be subjected to significant harm in relation to any terrorism or other political issues.[33]
[33] CB718, [192]
Finally, the Tribunal considered whether the applicant faced a real risk of significant harm because of the applicant’s religion, or inability to access medical treatment, or to gain employment, and concluded it was not satisfied the applicant faced a real risk of significant harm for any of these reasons.[34]
[34] CB718-719, [193]-[196]
Having made these findings, the Tribunal concluded it 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 of significant harm.[35]
[35] CB719, [202]
Judicial review hearing and issues
The applicant filed an amended application on 24 September 2018. It contains three grounds. At the hearing before me, counsel for the applicant said the applicant relies only on ground 1. Counsel for the applicant also relied on written submissions. During the hearing Ms Hooper, who appeared for the Minister, submitted that the submissions counsel for the applicant made departed substantially from the matters set out in the written submissions of counsel for the applicant. Ms Hooper responded to the submissions, but reserved the Minister’s right to file further written submissions. Further, towards the end of the hearing, counsel for the applicant formulated a new ground which he recorded in a document I marked “MFI1”.
At the end of the hearing I made directions that the Minister file submissions on whether I should grant the applicant leave to rely on the proposed new ground and, if so, whether the ground should be dismissed, and also submissions in response to the oral submissions counsel for the applicant made to the extent they went beyond ground 1 as stated in the amended application. I also directed that the applicant filed submissions in reply to the Minister’s submissions.
In response to the directions I made, the Minister and the applicant filed written submissions. By his written submissions the Minister said he did not object to the applicant relying on the proposed ground contained in MFI1, although the Minister does wish to be heard on the question of costs. In the remainder of these reasons, therefore, I will consider the grounds stated in ground 1 of the amended application, and the ground stated in MFI1.
Ground 1
Ground 1 is as follows:
The Tribunal made a jurisdictional error by making a legally unreasonable finding of fact.
Particulars:
a. The Tribunal found at paragraph 190 of its decision that the Lebanese authorities may seek to assess the applicant in relation to additional criminal matters pending in Lebanon if he were to return there in the foreseeable future.
b. The Tribunal noted at paragraph 183 of its decision country information stating credible reports of the authorities using torture, particularly during preliminary investigations despite legislation prohibiting the use of confessions extracted under duress.
c. The Tribunal noted at paragraph 191 of its decision that those arrested in relation to sectarian violence or extremism face a particularly high risk of torture at the hands of authorities.
d. Therefore:
(i) it was legally unreasonable for the Tribunal to find at paragraphs 16 and 192 of its decision that there was no real risk that the Applicant would face significant harm, including torture or mistreatment, or the death penalty by the Lebanese authorities in relation to any terrorism or other political issue in the foreseeable future;
(ii) it was legally unreasonable for the Tribunal to find at paragraph 193 of its decision that there was no real risk that the Applicant would face significant harm in relation to any religious issue
Parties’ submissions
In his written submissions, counsel for the applicant submitted that it was legally unreasonable for the Tribunal to find that it was not satisfied the applicant would be subjected to significant harm if he were to return to Lebanon. Counsel submitted there was country information before the Tribunal that indicated that a person arrested on a criminal matter faced the prospect of torture and other ill-treatment. Counsel submitted that although it was open to the Tribunal to reject the applicant’s case that he had been tortured in the past, “on the basis of legal unreasonableness that fact combined with the effluxion of time ought not to have lead the Tribunal to [the conclusion] it reached with respect to the Applicant’s fate on the additional criminal matters set out in paragraph 192 of the decision”.[36] Counsel further submitted that the country information before the Tribunal suggested that the risk of torture and other ill treatment for those arrested for criminal matters was ongoing, and “the fact the Applicant was not tortured long ago was not enough to provide a basis for rejecting the risk identified in the country information”.[37]
[36] Submissions for the Applicant, [7]
[37] Submissions for the Applicant, [8]
It will be apparent that the unreasonableness claimed in counsel’s written submissions lies in the Tribunal’s relying on the time that had passed after the applicant was in prison as a reason for finding that the applicant would not suffer ill treatment. In his oral address, counsel made a different submission. He submitted the Tribunal failed to incorporate into its assessment of the risk the applicant would face if returned to Lebanon matters it had accepted. Here there are two matters counsel submits the Tribunal had accepted but did not incorporate into its assessment of future risk. One is that the applicant had been convicted of terrorist related offences. The second is country information that suspects arrested in relation to sectarian violence or extremism face a high risk of torture at the hands of the authorities. Counsel submitted the Tribunal failed to consider its own finding that the applicant had in fact been convicted of a terror-related offence, and this put him in one of the classes of persons that county information showed who are at risk of being ill-treated by the authorities. As counsel put it, there was “a failure, in any of the considerations, to take into account the ramification of the terrorism conviction”.[38]
[38] T26.25
Counsel for the applicant further submitted that the Tribunal also relied on an incorrect interpretation of what was conveyed in Mr Z’s letter. Counsel referred to the Tribunal’s having found that the applicant “has already been tried and sentenced for the terrorism offences he committed”, that the “applicant has already done his time in prison for these matters”, and that the applicant’s death penalty has been suspended.[39] That, however, is not the information conveyed by Mr Z’s letter. The letter referred to the applicant having been released on bail.
[39] CB668, [17]
In his written submissions filed on 28 November 2018 the Minister submits that this part of the applicant’s claims fails to disclose any jurisdictional error, but merely register’s the applicant’s disagreement with matters of fact.[40] In his written submissions filed on 14 December 2018 the Minister identified particular aspects of the evidence that was before it, and the findings the Tribunal made. The apparent purpose of the Minister identifying these matters was to support the submission that the Tribunal’s findings were reasonably open to it.
[40] First Respondent’s Written Outline of Submissions, [18]
In her oral submissions, Ms Hooper submitted the Tribunal read Ms Z’s letter as in effect stating that the applicant had served his time and was no longer subjected to the penalties imposed by the Judicial Council, and that it was reasonably open to the Tribunal to so read Mr Z’s letter. Ms Hooper further relied on evidence the applicant had given to the first Tribunal member which is set out in the Tribunal’s reasons for decision where the applicant said that after he had been shot the applicant managed to get his passport and “the police clearance said there is nothing against him he hasn’t committed any crimes or anything”. Ms Hooper submits that supports the Tribunal’s reading of Mr Z’s letter. Ms Hooper further submitted that the Tribunal did not find the applicant would be arrested in the future because of the outstanding charges, but only that he might be so detained. Even if the Tribunal is taken to have found the applicant wold be detained, there was nothing before the Tribunal that could have suggested the authorities would be aware of the applicant’s conviction.
Did the Tribunal act unreasonably?
The submission made by counsel for the applicant that, when assessing the risk of future harm to the applicant, the Tribunal failed to take into account the applicant’s conviction for terrorist related offences, is based on the assumption that the Tribunal was required to take into account that fact. That assumption, however, must be considered with the Tribunal’s other findings. Of particular relevance is the Tribunal’s interpretation of Mr Z’s letter as stating that the applicant had in effect served his sentence, and that he was no longer subjected to the death penalty. Given this interpretation, it is apparent the Tribunal was of the view that the applicant did not face a real risk of being arrested and detained for the offence for which he was convicted by the Judicial Council in 2014 because the Tribunal found the applicant had in effect served his sentence. Given that finding, it was not necessary for the Tribunal to consider whether the applicant fell within the classes of persons country information identified faced the risk of mistreatment by authorities. Counsel for the applicant, therefore, in a sense is correct to submit the Tribunal did not take into account the applicant’s conviction for terrorist offences when assessing the risk of harm to the applicant; but the Tribunal did not do so because it was of the view that the applicant would not be arrested or detained in relation to the offences for which he had already been convicted, and who had served the sentences imposed on the applicant on his conviction.
The next question is whether it was reasonably open to the Tribunal to assess the risk of future harm to the applicant on the basis that the applicant would not be arrested or detained in relation to the charges for which he had been convicted in 2014. That, in large measure, turns on whether it was reasonably open to the Tribunal to interpret the letter from Mr Z in the manner that it did. The letter, at least as translated, is oddly expressed. Nevertheless it is reasonably capable of conveying three things: a judgment in absentia had been issued against the applicant on 24 October 2014; that something had happened over the two years after the issuing of that order, that something being conveyed by the words “spent his execution” and the order having been “suspended for almost two years”; and that after the passing of the two years, the applicant was “then released on bail”. The translation of the letter contains a notation that it was translated in Lebanon on 23 November 2016. By the time the Tribunal made its decision affirming the delegate’s decision (20 July 2018), the applicant provided no further information about the judgment of the Judicial Council. In those circumstances, it was reasonably open to the Tribunal to interpret the letter from Mr Z in the manner that it did.
For these reasons, I do not accept the applicant’s submission that the Tribunal acted unreasonably by concluding that, notwithstanding the applicant’s conviction of offences for which he received the death penalty, it was not satisfied the applicant would face a real risk of significant harm from Lebanese authorities if the applicant were to return to Lebanon. Ground 1, therefore, fails.
Other matters
Before I leave this part of my reasons, there are some observations I wish to make about the document that purports to be a letter from Mr Z and the document recording the purported judgment of the Judicial Council. The Tribunal accepted the two documents were authentic; but there are obvious inconsistencies between them. One is that the judgment states the applicant failed to appear before the Judicial Council “despite being notified”, yet Mr Z states he is “the agent” of the applicant in “criminal proceedings before the Justice Council”, implying that the applicant, at least through an agent, engaged in some way with the proceeding that was before the Judicial Council. Second, Mr Z described the Judicial Council as the “Justice Council”. It is not apparent that the one judicial tribunal goes under the names of both “Judicial Council” and “Justice Council”. Third, none of the orders recorded in the purported judgment refers to the applicant having been released on bail.
Quite apart from the inconsistencies between the two documents, there are odd features about the documents and the matters they purport to record, whether considered alone or with other evidence that was before the Tribunal. First, it makes little apparent sense that, as asserted in the purported letter from Mr Z, the applicant would have been granted bail two years after the Judicial Council made its orders, given that the applicant had left Lebanon in 2010. Second, material that was before the Tribunal suggests no apparent explanation why the applicant would be charged and convicted of a capital crime in 2014, years after, on the applicant’s account, he had been released from detention in 2009. Third, the applicant provided no documents in relation to the proceeding that resulted in the purported judgment. Fourth, the judgment does not sit comfortably with other evidence that was before the Tribunal. For example, in support of the first PV application the applicant provided another letter purportedly from Mr Z, this time stating that the applicant was in detention in Roumieh Detention prison from 26 May 2007 to 29 May 2009 “where he was released because he was not guilty in a terror crime they attributed to him”.[41] There is also a letter, again purportedly from Mr Z, but this time addressed to “Investigating Magistrate of Beirut”, stating that “my mandate” (the applicant) had been in detention “for an approx. period of three years due to the crime of Terror and released against caution”, and that “my mandate” required an “official statement showing the date of his arrest and release”.[42]
[41] CB54
[42] CB69
I refer to these matters because it appears to me that the Tribunal based its decision on findings which it made without attempting to reconcile evidence before it that was at least arguably inconsistent. The applicant, however, does not submit it was not open to the Tribunal to treat the purported letter from Mr Z as genuine, and to accept as true the various assertions of fact expressly or impliedly conveyed by the letter or, at least, assertions it was reasonably open to the Tribunal were expressly or impliedly conveyed by the letter from Mr Z. As I have noted, counsel for the applicant’s submissions were directed to the interpretation the Tribunal gave to the assertions contained in the letter.
Ground 2
Ground 2 is as follows:
The AAT member constructively failed to conduct a review as required by s 414 of the Migration Act 1958 as he did not consider:
i)a claim which arose clearly from the material before him that the Applicant faced a real risk of significant harm in relation to prison conditions in Lebanon irrespective of the reason for detention or imprisonment.
ii)a claim which arose clearly from the material before him that the Applicant faced a real risk of significant harm in relation to the implication of the terrorism conviction in 2014 when he returns to Lebanon.
Before I consider this ground, and the submissions made in relation to it, it would be useful if I first set out some principles.
Principles
The principles relevant to determining whether a claim is before a Tribunal are well established; and it will be sufficient if I only refer to two authorities. The first is NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[43] where the Full Federal Court said:
a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.
b)The Tribunal must “deal with the case raised by the material and evidence before it”, and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.
c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”. On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.
[43] [2004] FCAFC 263
The second authority is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim which was not expressly made may nevertheless be considered to have been raised: [44]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[44] [2004] FCA 1695, at [15]
Approach and issues
Ground 2 is necessarily predicated on the submission that there was before the Tribunal a claim that the applicant faced a real risk of being detained or imprisoned in a prison in Lebanon, and that because of the conditions in Lebanese prisons the applicant would face real risk of suffering “significant harm” within the definition of that expression given by s.36(2A) of the Act. Ground 2, therefore, can succeed only if there was a claim before the Tribunal that the applicant faced a real risk he would be detained in a Lebanese prison, and therefore be exposed to conditions that constitute significant harm, which:
a)the Tribunal failed to consider, or
b)the Tribunal accepted but failed to consider whether, because of the prison conditions in Lebanese prisons, the applicant would face a real risk of significant harm.
Determining whether ground 2 is made out will require me to do two things. The first is identify the claims the applicant made or which he could reasonably be taken to have made because the claims arose tolerably clearly from the material that was before the Tribunal. The second is to consider whether the Tribunal considered those claims.
Was there a claim of risk of detention and imprisonment?
The starting point is what the applicant said in his statement dated 18 May 2010. He said that he feared that if he returns to Lebanon he believed there would be further attempts on his life, and he may once again suffer further detention and gross human rights abuses. With the statement the applicant provided what he said was “my penal certificate which states that I have no convictions”.
Second, there is the letter dated 5 December 2016 from the applicant’s representative.[45] After enclosing a copy of the purported judgment of the Judicial Council and the letter of Ms Z, and after stating that the applicant claims he faces execution in Lebanon, the representative enclosed “independent evidence which unequivocally confirms the inhuman and deplorable prison conditions which our client may be subjected to, regardless of the severity of the sentence”. The letter does not identify the evidence to which it refers, but it appears to be intended to refer to a document headed “Lebanon 2015 Human Rights Report”,[46] and to other reports about conditions in Lebanese prisons.[47] In oral address, counsel for the applicant relied on the following sections of those reports:
[45] CB329
[46] CB358
[47] CB400-432
a)Page 5 of Lebanon 2015 Human Rights Report”, which is headed “Prison and detention Center [sic] Conditions”.[48] This part of the report refers to overcrowding, and poor sanitation, ventilation, and lighting; temperatures not being regulated consistently; lack of consistent access to portable water; inadequate staffing for the provision of medical care; overcrowded medical facilities; and reports of negligent medical care resulting in some deaths.
b)An article headed “Speaking Out for Foreigners in Lebanese Prisons”.[49] The article refers to the vulnerable population of foreign prisoners held in Lebanese prisons which largely includes Syrian refugees, non-ID Lebanese and Palestinian refugees, Iraqi and Sudanese refugees, and migrant workers.
c)An article headed “Riots in Lebanese Roumieh prison over living conditions”.[50] It reports on riots by prisoners induced by poor prison conditions.
d)An article headed “Lebanese authorities ‘knew about prison torture’”.[51] The article refers to particular cases of torture of prisoners who had staged an uprising, most of whom were from a particular section of the prison that housed many radical Islamists.
e)An article headed “U.N. Special Co-ordinator for Lebanon Visits Roumieh Prison”.[52] It refers to Roumieh Prison being the oldest and largest of Lebanon’s overcrowded prisons, and that it has witnessed sporadic prison breaks and escalating riots as inmates living in poor conditions demand better treatment.
f)An article headed “Death in Lebanon prison” which reports on the death of a prisoner in Roumieh Prison after suffering from burn injuries in the aftermath of a raid by security forces to crush riots calling for better prison conditions.[53]
g)An article headed “Lebanon’s Prisons: Beyond the Pale of the Law”.[54] It reports that over 100 protesters having been detained and released after having been subjected to degrading and humiliating treatment.
h)An article titled “Torture by Police, Forced Disappearance & Other Ill treatment”.[55]
i)An article headed “Freedom in the World 2016 Lebanon”.[56] This article, however, does not refer to the condition of Lebanese prisons.
[48] CB362
[49] CB400
[50] CB409
[51] CB415
[52] CB419-420
[53] CB421-422
[54] CB423-427
[55] CB428-430
[56] CB431-432
Third, there is the email from the Departmental Officer sent to the Tribunal on 6 February 2017 which referred to the applicant being adversely known to Lebanese authorities, who advised the applicant “has additional criminal matters pending”. According to the Tribunal’s reasons, the former Tribunal member showed the email to the applicant.[57] There is nothing to suggest the applicant made any submissions about the pending criminal matters referred to in the email.
[57] CB672, [33]
Fourth, there is the letter dated 13 February 2017 from the applicant’s representative to the Tribunal setting out submissions on behalf of the applicant.[58] The letter claimed the applicant fears that on his return to Lebanon he will be immediately arrested by the Lebanese authorities, detained, and face possible execution. The letter also referred to the evidence the representative had previously provided to the Tribunal relating to the prison conditions in Lebanon “which the review applicant claims he will likely be subjected to”. The representative submitted that “in the light of the attached evidence pertaining to prison conditions, the Tribunal cannot be comfortably satisfied that if our client were to return to Lebanon, there is no real likelihood that he will not be arbitrarily arrested and detained without further charges”. The letter does not identify which part of the attached evidence related to conditions in Lebanese prisons. It is apparent, however, the letter was intended to refer to the following material:
a)An article by a Dr. Walid Abdulrahim titled “The State of Prisons in Lebanon”.[59]
b)An article headed “Speaking Out for Foreigners in Lebanese Prisons”, being an article to which I have already referred.[60]
c)An article headed “The rats are as big as cats”.[61]
d)An article headed “In Lebanon’s most notorious prison, convicts take to the theatre”.[62]
e)An article headed “A legacy of torture: Inside Lebanon’s Khiam jail”.[63]
f)An article headed “Women in Lebanese prisons: The untold story”.[64]
[58] CB570
[59] CB579
[60] CB581-584
[61] CB585-586
[62] CB605-607
[63] CB612-613
[64] CB614-615
Fifth, the Tribunal set out what it understood the applicant claimed, one of which was that if it did not accept there is a real likelihood the applicant will be subjected to execution in the foreseeable future, the Tribunal cannot be comfortably satisfied that, in light of the independent evidence pertaining to Lebanese prison conditions, the applicant would not be subjected to mistreatment or torture during investigations, arbitrary arrest and detention, as well as cruel and inhumane mistreatment while in prison.[65]
[65] CB681-682, [42.p.]
In these circumstances, and as the Tribunal itself understood, the applicant did claim he faced a real risk of being detained and imprisoned in Lebanon; and that, as a consequence, the applicant faced a real risk of significant harm while he would be detained in the form of torture and inhuman or degrading treatment. In my opinion, however, there was also before the Tribunal a claim that, quite apart from facing a real risk of torture, the prison conditions themselves, and in particular overcrowding, poor sanitation, poor ventilation and lighting, inconsistent regulation of temperature, inadequate staffing, and inadequate medical care, would constitute significant harm.
Did the Tribunal consider the claim?
As should be apparent from my summary of the Tribunal’s reasons, the Tribunal did consider whether the applicant faced a real risk of harm of being detained and imprisoned, and while detained or imprisoned being subjected to torture, or to cruel or inhuman treatment or punishment or degrading treatment by the Lebanese authorities. And the Tribunal did so on two bases. The first is the applicant had been convicted of the offences referred to in the purported judgment of the Judicial Council and the facts set out in that judgment. The second is that the applicant may be arrested on his return to Lebanon in relation to the additional criminal charges pending against him. There was no other basis on the material before it on which the Tribunal could have considered whether the applicant faces a real risk of being detained and imprisoned and, for that reason, faces a real risk of significant injury while detained or imprisoned.
There is nothing in the Tribunal’s reasons to suggest the Tribunal considered whether the conditions in Lebanese prisons such as overcrowding, poor sanitation, ventilation, and lighting, inconsistent regulation of temperature, inconsistent access to portable water, and inadequate medical facilities, would constitute “significant harm” within the meaning of s.36(2A) of the Act. I am not prepared to find, however, that the Tribunal did not consider that question; and that is because one possible explanation for the Tribunal not considering whether such poor conditions constituted “significant harm” is that the poor conditions in Lebanese prisons, as described in the material that was before it, are incapable of being characterised as “significant harm” within the meaning of s.36(2A).
“Significant harm” in relation to a person is there defined to mean a person’s being arbitrarily deprived of his or her life, or to a person’s being subjected to the carrying out of the death penalty, or to a person’s being subjected to torture, or to a person’s being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment. In SZTAL v Minister for Immigration and Border Protection it was held that the notion of intention contained in the expressions “intentionally inflicted” and “intended to cause” that are respectively contained in the definitions given in s.5(1) of the Act of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” was restricted to a person’s acting or failing to act with the desire, aim, or purpose to inflict “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.[66] In other words, the poor conditions of Lebanese prisons by themselves were incapable of supporting any finding that the harm those conditions may inflict on prisoners are intentionally inflicted on prisoners.
[66] [2017] HCA 34
Even if the Tribunal did not direct its mind to whether the poor conditions of prisons in Lebanon constituted “significant harm”, its failure to have done so could not have been said to be material because the information that was before the Tribunal could not reasonably support a finding that the poor prison conditions have been or will be intentionally inflicted on prisoners.
Paragraph (ii) of ground 2
What I have said so far relates only to paragraph (i) of ground 2. Paragraph (ii) claims the Tribunal failed to consider the claim that the applicant faced a real risk of significant harm in relation to the implication of the terrorism conviction when he returns to Lebanon. There is no doubt the Tribunal considered this claim. As I have already noted, the Tribunal found the applicant did not face such risk because the applicant had not been subjected to torture when he was detained during 2007 to 2009, 11 years had passed since the applicant engaged in the offending conduct, the applicant “has already served his time and has been released on bail”, and the “operational period of the suspended sentence of two years” had passed so that, “while the applicant is still technically on bail, he appears to be no longer subjected to the punishments as determined by the 2014 court decision”.[67]
[67] CB717, [189]
Conclusion on ground 2
For these reasons, ground 2 fails.
Conclusion and disposition
The applicant has not succeeded on either of the grounds on which he relies. I propose, therefore, to order that the applicant have leave to rely on the ground set out in MFI1, but dismiss the application. I will consider the question of costs when I pronounce my orders.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 26 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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