Eba16 v Minister for Immigration

[2018] FCCA 3665

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3665

Catchwords:
MIGRATION – Application for judicial review – protection application – Administrative Appeals Tribunal – whether the Tribunal ought to have considered the reasonableness of the Applicant’s relocation – application allowed.

Legislation:

Migration Act 1958 (Cth), s.36(2B)(a)

Cases cited:

Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317

Applicant: EBA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2806 of 2016

Judgment of: Judge Riethmuller

Hearing date: 19 September 2018

Date of Last Submission: 19 September 2018

Delivered at: Melbourne

Delivered on: 12 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Bardo & Erci Lawyers

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 5 December 2016.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2806 of 2016

EBA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) made 5 December 2016.  That decision affirmed the decision of a delegate of the Minister not grant the applicant a protection visa.

2. The applicant is from Tripoli, Northern Lebanon and of Sunni Muslim religion. She first came to Australia (on a visitor’s visa) on 28 December 2011. She returned to Australia on 24 December 2013 on a second visitor visa.

3. On 20 March 2014 the applicant applied for a protection visa. The delegate refused her application on 30 July 2015, a decision which was affirmed by the Tribunal on 5 December 2016. Before the Tribunal, the applicant was assisted by a Lebanese interpreter and represented by her migration agent.

The applicant’s claims

1. The applicant’s claims are summarised at [2] of the Tribunal’s decision:

   2. …The applicant claimed that due to fighting and violence between the Sunni community in Bab El Tabb[a]neh and the Allawite community in Jabal Mohsen, a neighbouring suburb, her home was destroyed. She also claimed that she was sought by the local leader of a Sunni Muslim militia group because she was suspected of passing information and intelligence to opposing Allawite groups in Jabal Mohsen.

2. The Tribunal expanded upon the applicant’s claims (at [7] to [9] of the decision), saying:

   7. The applicant states that over the decades, the conflict between political and religious groups has caused extreme violence between the Sunni and Allawite communities in Tripoli.  She states that there have been bashings and robberies of Sunni Muslims living in Bab El Tabbaneh and Allawis living or owning businesses in Sunni areas. This has caused Allawis to relocate to Jabal Mohsen. She states that the recent war in Syria has sharply aggravated violence in Tripoli, with the result that buildings have been destroyed and there have been killings and beatings of civilians in the two rival suburbs.

   8. The applicant states that throughout the years she became friends with two women named [F] and [GA] who are both Allawites from Jabal Mohsen. The applicant states that the women previously resided in her street in Bab El Tabbaneh, but relocated to Jabal Mohsen due to the fierce rivalry and conflict between the Sunnis of Bab El Tabbaneh and the Allawites of Jabal Mohsen. The applicant would visit these two friends every once in a while. Before she arrived in Australia she was observed crossing over to Jabal Mohsen a number of times. The local residents saw her crossing and reported the matter to the leader of Sunni fighters in her street. The local leader is [AD]. Soon after that time, she received a serious threat from some men who came to her apartment and broke down the front door. The men were screaming and shouting and accused her of spying and reporting information to the Allawites of Jabal Mohsen. They told her that they had seen her crossing into Jabal Mohsen. The applicant stated that they threatened her and told her that the three women have been reporting on their movements and strategic locations of [Sunni] fighters to the Allawites of Jabal Mohsen. The applicant was “dead scared” and almost collapsed. The men then started firing shots towards the ceiling and threatened that they will come back with [AD]. They told her that they will watch the building to find out what she is doing. Two armed men waited at the front entrance of the building, but within half an hour the applicant was able to escape through a big hole in the floor of the first floor building and she made her way out of the suburb and took a taxi to her brother's house which is located in another suburb of Tripoli. On that day, the applicant received a telephone call threatening her and telling her that she cannot disappear and they will find her wherever she goes.  The clashes between the two arears are reported on a daily basis and many causalities have been reported.  The applicant refers to 13 people who were killed in the clashes in the neighbourhood areas of Jabal Mohsen and Bab El Tabbaneh.  She states that there is a real fear that the Syrian civil war will spill into Lebanon.

   9. The applicant also states that her other “big fear” is from [AD] and the Sunni fighters of Bab El Tabbaneh. The applicant states that during the conflict many shots were fired at her house and she lived in “absolute terror during the conflicts”. The Sunni fighters set up a barricade on the roof and throughout different levels of her building and this caused the building to come under fierce attack from the Allawites. The applicant states that her apartment is no longer liveable due to the amount of destruction. She states that there is no point making any complaints to the Lebanese officials because they cannot protect themselves, let alone ordinary civilians.  The applicant states that she fears persecution from [AD] and his fighters.  The applicant refers to the death of the Future Movement leader, Mr Rafik Hariri, who was killed on 14 February 2005.

The Tribunal’s findings

1. At [15], the Tribunal did not accept the applicant was a ‘truthful witness or that she has given a truthful account of her reasons for leaving Lebanon and seeking Australia’s protection’.

2. In respect to the applicant’s address in Lebanon, the Tribunal did ‘not accept that she was residing at the address in Bab El Tabbaneh in 2013 at a time when she claimed to have been sought by the leader of a Sunni militia group’: see [15]. In reaching this decision, the Tribunal had regard to the applicant’s evidence that ‘she lived at that address since she was born’ and that the property is the ‘only one’ she owns: see [16].

3. The applicant was asked about an address in Zaytoun she had provided in her 2013 visitor visa application, which the Tribunal discussed, saying:

   18. …she had provided evidence of her ownership of a different apartment on the fifth floor of a building in Zaytoun, the applicant stated that this is her flat in the same building in Bab El Tabb[a]neh and the one she owns.  When advised that she had previously said she lived on the third floor and it was that property she owned, the applicant then stated that her family has a flat in the same building and they rented the property to an Allawite family for 40 years.

4. The applicant’s evidence was that her brother had previously lived at an address in Zahria and she used this address ‘in case she received mail’: see [20].

5. The Tribunal accepted (at [22]) ‘that the applicant and her family have property on the third and fifth floor of the [name omitted] building located in Bab El Tabbaneh”. It further accepted that ‘a property she owns was at some point severely damaged’: see [23].

6. The Tribunal concluded on this topic at [25] saying:

   25. …The Tribunal considers that although the applicant owns property in Bab El Tabbaneh, which has been unfortunately been destroyed at different times and is no longer liveable, that she has lived elsewhere in Tripoli for a considerable period of time due to ongoing hostilities and violence between Sunnis in Bab El Tabbaneh and Allawites in the neighbouring suburb of Jabal Mohsen for several years.

7. The Tribunal then considered the applicant’s claims that she was targeted by AD at [26], saying:

   26. …The applicant has claimed that when the Sunni militia came to her home, they fired two bullets in the ceiling of the flat to scare her, but she was able to escape through a hole and travel to her brother's house in a taxi. After that time, she was harassed and threatened over the telephone and she remained in hiding in her brother’s house until she was able to leave for Australia.

8. The Tribunal did not accept any of these claims, summarising (at [28] and [29]):

   28. Having considered the applicant’s claims to have been targeted by Sunni militias because she was thought to have provided Allawites with information and to have then been threatened, shots fired in her ceiling, yet she was able to escape whilst being guarded by Sunni militia men with guns, the Tribunal does not accept any of these claims.  The Tribunal firstly does not accept that the applicant, a Sunni woman who had lived in Tripoli and purportedly in Bab El Tabbaneh since birth, would be considered to have any information which she could provide to the Allawites in Jabal Mohsen which could have an adverse impact on Sunni militias or could in some way affect their operations. The Tribunal also does not accept that the applicant, a woman who was at that time in her late 40s, would somehow be able to escape from militias guarding her premises through a hole in the floor and then take a taxi to her brother’s house.

   29. Furthermore, the Tribunal considers that the applicant's claims to have lived in her brother’s property in hiding for some two and a half months, without any further action taken by the Sunni militias, to be indicative of the fact that she has fabricated her claims. The applicant has claimed that she was able to do so because no-one knew where she was living and all the militias are in Bab El Tabbaneh, and her brother lives in a different area. The Tribunal does not accept the applicant's explanation as to how she was able to live at her brother’s house for some two and half months if she was wanted by Sunni militias. The Tribunal does not accept that people in her area would not have known her family situation, given that she had apparently lived in the area all her life and her parents had also lived in the area prior to their deaths….

9. The Tribunal concluded at [32]:

   32. …the Tribunal is not satisfied that the applicant has given a truthful account of her reasons for leaving Lebanon. The Tribunal has not accepted that the applicant lived in Bab El Tabbaneh for some time. The Tribunal considers that the applicant has lived elsewhere in Tripoli with her brothers or in alternative accommodation in Tripoli. The Tribunal does not accept that the applicant was targeted by [AD] or Sunni militias or that she was ever suspected of passing information to Allwaites living in Jabal Mohsen. Nor does the Tribunal accept that these people threatened her, shot at her or came to her home and shot at the ceiling. The Tribunal does not accept that the applicant escaped through a hole in the roof or that she was in hiding at her brother’s home until she left Lebanon for Australia

10. The Tribunal considered the applicant’s claims that ‘she will be harmed and killed if she returned to Lebanon’: see [33]. The applicant claimed she had ‘no relatives’ in Lebanon but when reminded that she had a brother, claimed he ‘had an operation on his hip’: see [33]. She further claimed ‘[s]he feels pressured in Lebanon and there are people from different religions who are attacking against each other and there is no safety: see [33].

11. The Tribunal concluded (at [35]) saying:

    35. …the Tribunal has not accepted that the applicant lived in the Tripoli suburb of Bab El Tabbaneh when she left Lebanon or that she had lived there for some time. The Tribunal considers that although Bab El Tabbaneh may once have been the applicant’s home area that it has ceased to be her home area as a result of ongoing violence and the destruction of her property. The Tribunal has had difficulty determining the applicant's previous residence in Lebanon as a result of her attempts to establish that she was living in Bab El Tabbaneh. However, the applicant’s own evidence indicates she was living in Mazloum prior to her departure from Lebanon. The Tribunal does not accept that upon her return to Lebanon that the applicant will be without assistance from her family members or that she will be unable to again reside with her brother in Mazloum or in another part of Tripoli if she chooses to do so. The Tribunal considers that the applicant's evidence indicates that she has the support of at least one of her brothers, despite her attempts to present herself as someone who is without relatives or family support in Lebanon. The Tribunal does not accept that the applicant will be without accommodation or financial support or the means to subsist upon her return to Lebanon. The Tribunal does not accept that the loss of her property will result in a real chance that she will suffer serious harm such that she will suffer significant economic hardship that threatens her capacity to subsist; a denial of access to basic services; or that she will be denied a capacity to earn a livelihood, where the denial threatens her capacity to subsist. Nor does the Tribunal accept that the loss of her property will result in her suffering serious harm for any of the other reasons contemplated by s.91R(2) or that the loss of her property will cause her to suffer serious harm for any of the five Convention reasons.

12. The Tribunal then considered the applicant’s complementary protection grounds. The Tribunal considered it ‘has not accepted the applicant’s claims to have been living in Bab El Tabbaneh and to have been sought by [AD] or Sunni militias’: see [40). Given this finding, the Tribunal was not satisfied ‘that the applicant will be without accommodation or financial support or assistance upon her return to Lebanon’: see [41].

Grounds of application

1. On 4 July 2017 Registrar Allaway made orders for the filing of further material. The applicant relies on her amended application filed 24 August 2018.

2. The applicant relies on one ground:

   1. The Tribunal misapplied the law in that it did not perform a relocation analysis.

   Particulars

   a. The Tribunal found that Mazloum was the applicant’s former home area.

   b. The Tribunal contemplated that the applicant would return to Mazloum, or “another part of Tripoli”.

   c. The finding that the applicant might return to [an] area in the receiving country other than her home area, as one possibility, was not open to it unless it conducted a relocation analysis with respect to that “other” area.

   d. In not having conducted the relocation analysis, the Tribunal could not lawfully rely upon findings that the applicant might return to another part of Tripoli.

   e. As the Tribunal did rely on such findings, it’s decision is affected by legal error.

3. It is not at issue in this case that the Tribunal did not consider the applicant’s return to Lebanon through the prism of s.36(2B) of the Migration Act 1958 (Cth) which provides:

   (2B)  However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)  it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; …

4. This section is often referred to as describing a requirement that relocation from a person’s home area must be considered ‘reasonable’. Whilst there is commonly a reference to an applicant’s ‘home area’, this phrase is not contained within the legislative provision. The legislative provision provides only for a consideration of whether it would be reasonable ‘to relocate’. One must look to the context of this phrase in the section to identify the place from where the relocation occurs. In this context, it is the place where there is a real risk that the applicant would suffer significant harm. The term ‘area’ must also have a meaning that flows from the context of the provision. The word ‘area’ can easily refer to geographic, or cultural parts of a country. In business sales and distribution areas are commonly created. In context of this provision, the ‘area’ of the country must be those parts of the country where there is not a real risk of serious harm.

5. Applied to the facts and circumstances of this case, it is clear from the Tribunal’s findings that the Tribunal accepted that the applicant’s home in Bab El Tabbaneh, was destroyed and that she had concerns relating to generalised violence in ‘her home area of Tripoli’. The Tribunal concluded that the applicant had left this area prior to leaving Lebanon ‘…as a result of ongoing violence and the destruction of her property’: see [35] (above).

6. The Tribunal concluded that prior to leaving Lebanon the applicant had been living at Mazloum and was supported by her brother.  Thus, in the context of this case there are two relevant areas, Bab El Tabbaneh and Mazloum: the first being where the applicant is at real risk of serious harm and the second where she is not at such risk.

7. At [38] of the decision the Tribunal proceeded on the basis that: (a) the applicant had established that she was at real risk of serious harm in Bab El Tabbaneh, where she had lived and owned a property; and (b) that if the applicant were to return to Mazloum or another part of Tripoli away from Bab El Tabbaneh that there was not a real chance that she would suffer serious harm.

8. It is also clear that the Tribunal concluded that she had been living in Mazloum for a period of time prior to coming to Australia, having moved to Mazloum as a result of the violence in Bab El Tabbaneh.

9. The question that arises is how the provisions of s.36(2B)(a) operate in a situation where a person has left the area in which there is a real risk of serious harm to that person, and moved to an alternative area, prior to travelling to Australia to seek refuge.

10. I am not persuaded that the operation of the provision, nor the relocation test generally, should proceed by reference merely to the last location that a person has stayed or resided at prior to coming to Australia. The relocation test must proceed by reference to the place from which they fled the relevant harm. If this were not the case, a person could be denied a protection visa if they had resided in a refugee camp for a period of time before travelling to Australia, on the basis that they had resided in a place of safety and, therefore, were not at risk.  It would, however, be very unlikely that a finding would be made that it was ‘reasonable’ for a person to relocate to a refugee camp from the place at which they initially were at risk.

11. Thus, the operation of the provisions must be on the basis of a consideration of whether or not it was reasonable for a person to relocate from the place at which they were at risk of serious harm. 

12. As was discussed in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 at [17], the essential inquiry for the Tribunal is whether or not a fear of persecution or serious harm is well founded, not how that risk might be avoided (which in this case would involve the applicant being required to live at a place other than the place at which the risk arose). In that case, the High Court said:

    25. The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm.  In this matter it was found by the Tribunal that Kabul was such a place.  By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it.  As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.

1. In SZSCA, the Tribunal were found to have erred for failing to consider whether a truck driver could reasonably be expected to remain in Kabul when travelling outside of Kabul, to an area of risk, even though living within Kabul did not place him at risk. This case confirms the proposition that the reasonableness test must be addressed to the conduct expected or contemplated of the applicant in order to avoid the risk of harm.

2. Applied to the circumstances in the present case, it is clear that the harm arises with respect to Bab El Tabbaneh where the Tribunal accepted that the applicant had a residence and had resided, and that her move away from this area was as a result of the destruction of this property.  The question is then whether or not it was reasonable to expect her to live in Mazloum or elsewhere in Lebanon. 

3. The fact that the conduct giving rise to the claim had forced her out for a period prior to her visa application does not alter the fundamental structure of the provision, which requires an assessment of the reasonableness of expecting the applicant to relocate to a place other than the location where the applicant is at real risk of serious harm.

4. The applicant fled the Bab El Tabbaneh region or suburb as a result of the risk of harm, not by her own choice. That she resided for a period with her brother in Mazloum is relevant in determining whether or not it is reasonable to expect her to relocate to Mazloum, but does not result in the test for risk of harm being applied on the basis of her simply residing in Mazloum.

5. In this case, as the Tribunal did not consider the question of reasonableness of relocation, it appears that the Tribunal have erred at law.

6. On judicial review proceedings is not open to the Court to consider whether or not the facts would show that it was reasonable for the applicant to relocate to Mazloum or some other part of Tripoli.  Whilst the applicant’s case in this regard appears to be very weak, it is not such that it would justify withholding relief. 

Conclusion

1. In the circumstances of this case, I am therefore persuaded that the Tribunal erred in law in failing to consider the applicant’s circumstances through the prism of s.36(2B)(a) and make findings accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  12 December 2018