ECT17 v Minister for Immigration

[2018] FCCA 730

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 730

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in making a legally unreasonable finding of fact – whether the Authority failed to engage in proper consideration of evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2), 36(2A), 473CA

Cases cited:

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71

CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413; [2016] FCAFC 146
DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2
Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Applicant: ECT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 498 of 2017

Judgment of: Judge Smith

Hearing date: 20 February 2018

Date of Last Submission:	20 February 2018
Delivered at:	Sydney

Delivered on: 29 March 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Warren Yi, Solicitor

Counsel for the First Respondent: Mr P R Macliver

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 498 of 2017

ECT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 28 August 2017.  The Authority decided to affirm a decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.

2. The applicant argues that the Authority fell into jurisdictional error in three respects: first, that it made a legally unreasonable finding of fact; secondly, that it failed to consider the reason why the applicant might refrain from a high level involvement in a political party upon return to his home country; and thirdly, that it made a finding concerning the availability of mental health services in the applicant’s home country that was legally unreasonable.

3. In order to understand each of these arguments and the disposition of them, it is necessary to set out a summary of the background facts and the findings made by the Authority in arriving at its decision.

Background

1. The applicant is a citizen of Lebanon who arrived in Australia by boat without a visa on 7 July 2013.  The circumstances of his arrival meant that he fell within the description of “unauthorised maritime arrival” in the Migration Act 1958 (Cth) and was not entitled to apply for a visa without the intervention of the Minister for Immigration.

2. On 1 September 2015, the Minister made a decision allowing the applicant to apply for a protection visa and on 28 April 2017 the applicant lodged an application for a Safe Haven Enterprise (Subclass 790) Visa, a type of protection visa.

3. The applicant claimed that he was a Sunni Muslim from the Akkar district in the north of Lebanon and that he feared harm because he refused to join Jabhat al-Nusra (JN).  He claimed that in March or April 2013 he was approached by a man who he knew was from JN and who talked to him about religion.  The applicant knew that he was dangerous and when the man left he said to the applicant that he would see him again.

4. About 2 weeks later a different man approached the applicant after Friday prayers and told him that JN knew that he had received high marks in his military training.  The applicant claimed that he gave the man false promises and left.

5. The applicant also claimed to fear harm from other extremist groups including Hezbollah because of his involvement in the Future Movement (FM) political party.  The applicant became involved with the FM in Australia and had helped “set up a hall for speakers and sent out invitations for events”.  He initially stated in his interview with the delegate that he had not been a member of the FM in Lebanon but later stated that he had supported the FM in Lebanon and had spoken to people about it.

6. In submissions made to the Department after an interview with the delegate, the applicant stated that “he had been a supporter of the FM in Lebanon, had a more significant role in Australia and had been a speaker for the FM on a number of occasions”.  He claimed that he made accusations against Hezbollah in this capacity.

7. The applicant also claimed to fear harm because of a mental health condition.

8. On 17 July 2017, a delegate of the Minister decided not to grant the applicant a protection visa and the matter was referred to the Authority for review in accordance with s.473CA of the Act.

9. On 28 August 2017, the Authority affirmed the decision not to grant the applicant a protection visa.

Authority’s decision

1. The applicant accepted as accurate the following summary of the Authority’s reasons for decision taken from the first respondent’s written submissions.

   12.The IAA considered the applicant’s claims and evidence and made the following findings and statements:

   12.1.Whilst the IAA accepted the central tenet that JN could have, and could continue to recruit in Lebanon, the country information was to the effect that recruits are volunteers. The IAA found that there was nothing in the applicant’s submission or its attached information that indicated that JN was engaging in the forced recruiting of Lebanese citizens, inflicting violence on those that did not join, or was otherwise intimidating or threatening Lebanese Sunnis.

   12.2.In relation to the applicant’s fear of harm from JN for refusing to join, the IAA noted that the applicant completed his military training in 2004-2005 and that JN did not exist until 2011. Therefore, given the applicant’s low military profile, the IAA did not consider that it was plausible that the applicant would be seen as a significant, important or remarkable potential recruit eight years after his training. The IAA did not accept the claim that JN knew all about the applicant and it was not satisfied that the applicant would be of any adverse interest to JN because he did not join them in 2013. The IAA therefore found that the applicant did not face a real chance of serious harm from JN if he returned to Lebanon.

   12.3.Based on the applicant’s interview with the delegate and his post interview submissions, the IAA accepted that the applicant could have had an interest in the FM in Lebanon and that he could have spoken to other people about it. The IAA also noted the country information before it that indicated low-level supporters and ordinary members of the FM faced a low risk of violence. The IAA was not satisfied that the applicant’s role with the FM was any more than that of a low-level member and that he did not, and would not, have any particular profile or greater level of involvement if he returned to Lebanon. The IAA found that the applicant’s claims of a prominent role with the FM had been embellished in response to the delegate’s concerns.

   12.4.The IAA referred to various DFAT country reports which assessed that ordinary Sunnis or other Lebanese were not at risk from sectarian violence in Akkar, that Sunni communities in the border regions faced a low risk of violence and that the potential for Daesh or JN to launch attacks in a Sunni area was unlikely.

   12.5.The IAA stated that, while it was possible that the applicant could get caught up in generalised violence in any area of Lebanon, it found that this was a remote possibility, and in any event, it would not be as a result of the applicant being targeted because of his race, religion, nationality, membership of a particular social group or political opinion. The IAA found that the applicant would not face a real chance of serious harm from any extremist organisations, or from any sectarian or generalised violence, if he returned to Lebanon.

   12.6.In relation to the applicant’s claims of suffering mental health problems arising from his voyage from Indonesia to Australia, the IAA stated that the extracts from IHMS did not indicate that the applicant had been undergoing regular mental health care or treatment and did not refer to the applicant’s history or identify any particular condition or cause. However, the IAA accepted that the applicant could be suffering a degree of mental anguish. Having regard to the all the evidence and information in the material before it, the IAA was satisfied that the applicant would be able to access ongoing care and treatment in Lebanon if he needed it, and that he did not face a real chance of serious harm as a result of his mental health if he returned to Lebanon.

   12.7.Having regard to the fact that the applicant left Lebanon lawfully as the holder of a valid passport, and having found that the applicant was not of interest to JN and that he was a low level supporter of the FM, the IAA stated that it was satisfied that the applicant did not face a real chance of harm for being a returned asylum seeker.

   13.The IAA concluded that, having regard to all the claims and evidence before it, it was not satisfied the applicant faced a real chance of serious harm because of, or from any combination of, the attempts by JN to recruit him and his refusal to join them, his membership of and activities with the FM in Lebanon and Australia, any other extremist organisations, his mental health and for being a retuned asylum seeker. Therefore the applicant did not meet the requirements in s 36(2)(a) of the Act.

   14.In relation to the complementary protection criterion, the IAA found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that the applicant would suffer significant harm. Therefore the applicant did not meet the criteria in s 36(2)(aa) of the Act.

Consideration

First Ground

1. The first ground in the applicant’s amended application is that the Authority made a jurisdictional error by making a legally unreasonable finding of fact, namely that the applicant had not had a high level involvement in the FM.

2. This ground focuses on [19] of the Authority’s reasons for decision.  For that reason, it is necessary to set that paragraph out in full:

   19.His post-interview submission also claims that while in Australia, he has had a prominent role in the FM.  He claims that he has spoken in front of large crowds on a number of occasions between 2014 and 2016, has been the Secretary of the Youth Division, has travelled with high profile leaders of the FM including leaders from Lebanon, and has met with Australian parliamentarians in this capacity.  I do not accept that the applicant would not have raised such a significant involvement either during the interview, or in the period after the break.  I note that he was asked on a number of occasions if he had further claims to make and he said no.  I also take into account that his claim of involvement with the FM only began to develop after the delegate raised concerns about the level of involvement.  The applicant has also provided some photographs of himself at various functions that appear to relate to the FM but there is no other information apart from the applicant’s claims about the circumstances or the applicant’s personal involvement in the events.  He has also provided a character reference from the FM that refers to his assistance in organising and participating in community events and activities, but I take into account that this does not refer to him having a position, role or official responsibilities.  I also note that the applicant’s post-interview submission that he is a person who “is very active with the [FM] and who, in this capacity, has accused Hizbollah of killing Rafiq Hariri during public speeches”.  He submits that he has made these accusations online, including in social media, but has not provided any evidence of these accusations.  I am not satisfied on the evidence before me that he faces any risk of harm from Hizbollah as a result of an active profile or any online activity.  Having regard to all of this, I find that the applicant’s later claims of a prominent role with the FM have been embellished in response to the delegate’s concerns.  I am not satisfied that the applicant’s role with the FM is any more than that of a low-level member and that he does not, and will not have any particular profile or any greater level of involvement should he return to Lebanon.

3. The applicant argued that the findings made by the Authority in this paragraph lack a sufficient evident and intelligible or reasonable justification, and for that reason may be described as legally unreasonable. He argued that there was no inconsistency between the matters the applicant raised after the interview with the delegate and his post hearing submission, but rather, that what the applicant said was consistent with his claim and that he was simply providing further detail as to how he was involved in promoting the FM, including speaking to crowds on its behalf and travelling with its leaders.

4. The applicant accepted that it was open to the Tribunal to weigh the absence of a reference to the applicant having a position, role or official responsibilities in the character reference to the applicant’s claim to have been Secretary of the Youth Division of the FM. However, the applicant argued that that absence did not necessarily undermine the applicant’s claims, which did not entail high office in the FM.

5. The Minister submitted that the matters referred to by the Authority at [19] each provided a rational basis for its conclusion that the applicant was no more than a low level member of the FM and that, in any event a conclusion that the finding by the Authority, or any decision-maker, was an exceptional one.

6. There is no question that an administrative decision-maker may fall into jurisdictional error in making a finding of fact which might be described as illogical or irrational, or simply as not being based upon a logical inference available on the relevant material.  Just as the test for unreasonableness concerning the exercise of discretion has significant stringency and is satisfied only rarely[1], when the question involves a finding of fact, extreme illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration & Citizenship v SZRKT (2013) 212 FCR 99 at [148]; [2013] FCA 317; CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413 at [160]; [2016] FCAFC 146; DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2 at [30].

   [1] See Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [113]; [2013] HCA 18 (Gaegler J).

7. The applicant has not established that the Authority arrived at its conclusion concerning the level of his involvement in the FM on an illogical or irrational basis.  It is telling that in his written submissions, the applicant submitted that the Authority’s findings lacked a “sufficiently” evident and intelligible or reasonable justification and that the character reference did not “necessarily undermine” the applicant’s claims.  Those submissions do not go far enough to satisfy the test for legal unreasonableness.  In order to meet that test the applicant must establish that the matters relied upon by the Authority could not, on any reasonable view, form the basis for the Authority’s factual conclusion. Similar language was used by the applicant during oral submissions.

8. In addition, [19] of the Authority’s reasons reveals that the Authority based its conclusion that the applicant had embellished his role in the FM on the basis of its consideration of five separate matters:

   a)First, it did not accept that the applicant would not have raised a significant involvement during the interview or in the period after the break.  It may well be that as the applicant submitted, that his evidence could be seen to be simply an expansion of an earlier claim. However, the addition of significant details after an earlier opportunity of providing an entire claim can equally give rise to the inference that those later details have been, as the Authority considered, embellished.

   b)Secondly, the applicant’s claim of involvement with the FM only began to develop after the delegate raised concerns about the level of involvement.  This fact could also cut both ways.  It might be seen that the applicant was simply taking the opportunity presented by the delegate to address concerns that arose in the delegate’s mind about the state of the evidence.  Similarly however, as with the first point it is open to conclude that a matter not raised in the initial stages might only have been said because the applicant might not otherwise be believed.  In other words, that greater detail was added to the applicant’s claims in order to add to their credibility.

   c)Thirdly, apart from a number of photographs of the applicant at various functions, the only information about the applicant’s involvement in those functions was from the applicant himself.

   d)Fourthly, the character reference from the FM did not refer to the applicant having any position, role or official responsibilities.

   e)Fifthly, the applicant did not provide any evidence of the online accusations he said he had made on social media.

9. These matters reveal that the Authority engaged in a process of analysing and giving weight to the evidence given by the applicant. That weight was affected by the timing, manner and content of the evidence put forward by the applicant. Those are all matters that can logically affect the weight that is given to evidence.

10. The first ground is rejected.

Second Ground

1. The second ground relies on Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 at [82]-[83] (referring to Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71):

   82.… As McHugh and Kirby JJ observed in S395 at [43] (to similar effect, see Gummow and Hayne JJ at [82]):

   43. The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

   83.Based on the IAA’s own findings, which flowed from the material before it, it had to consider whether the first respondent would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow.  Its failure to address these matters involves jurisdictional error.

1. The applicant submitted that the same reasoning applied here. The Authority found, first, that it was not satisfied “that the applicant’s role with the FM is any more than that of a low-level member and that he does not, and will not have any particular profile or any greater level of involvement should he return to Lebanon” (at [19]); and secondly,  that the applicant “may continue this low-level involvement should he return to Lebanon, he does not have a high-level or any other particular profile” (at [20]). The applicant argued that the Authority ought to have considered whether the applicant would refrain from expanding the nature of his involvement in the FM on account of the fear of serious harm.

2. The Minister argued that, unlike in BBS16, the Authority here did not accept that the applicant had a high-level involvement in a political group previously in Lebanon or currently in Australia, and so did not have to consider whether such an involvement might arise in the future. I agree with that submission.

3. The applicant did not in fact claim that he had a low-level of involvement in the FM in Australia and would increase that level in Lebanon were it not for his fear of persecution. He did claim that he had not had a higher level of involvement in Lebanon because he feared the Hezbollah. However, that claim was rejected by the Authority: [18]. The applicant also claimed that he had a prominent role in Australia but that claim, too, was rejected: [19]. The Authority found that the applicant was only a low-level member and would not have any greater level of involvement should he return to Lebanon: [19]. The Authority then assessed, as a matter of fact, what risk of harm there was in light of its determination of the applicant’s current and prospective involvement in the FM. Given the nature of the applicant’s claims, and the Authority’s findings, it was not required to go any further.

4. The second ground is rejected.

Third Ground

1. The third ground is that the Authority did not engage in a “proper consideration” of the evidence concerning the availability of mental health services in Lebanon.

2. The Authority found, at [30], that the applicant would be able to access ongoing care and treatment in Lebanon should he need to do so and, for that reason, that he did not face a real chance of serious harm as a result of his mental health if he were returned to Lebanon. That finding was based on the Authority’s assessment of the evidence which it set out at [29]:

   Information provided in the material contains references to international organisations providing mental health services in the Akkar district; however, this information relates specifically to Syrian refugees and it is not apparent whether Lebanese citizens are able to access these services. Other information indicates that mental health services in Lebanon are generally limited, especially outside of Beirut, and that people in rural areas have poorer and inequitable access to mental health services than in urban areas. There are relatively few psychiatrists in Lebanon, but the same report notes that there are a significant number of psychologists and other mental health workers. More recently, the Deputy Prime Minister and Health Minister acknowledged that there are gaps in mental health services and that the Ministry of Health will begin to cover mental health as part of a comprehensive medical plan, with the support of the World Bank. This will include eight new centres as well as the introduction of professionals at existing hospitals. The announcement also said that it was the Ministry’s responsibility to help even those who cannot afford treatment.

   (Citations omitted)

3. The applicant argued that the question for the Authority was whether the applicant would receive treatment in Akkar or could reasonably obtain it elsewhere; however, he continued, the limited current resources and planned future resources described in this passage did not properly address those matters. I disagree.

4. The issue for the Authority was whether the applicant satisfied the criteria for the grant of a protection visa, in particular, those criteria found in sub-ss.36(2)(a) and (aa) of the Act. The first of those required that there be a well-founded fear of persecution in all parts of Lebanon: s.5J(1). The essential and significant reason for the persecution must be one of the reasons mentioned in sub-s.5J(1)(a) of the Act and involve serious harm: s.5J(4). It is difficult, on the material before the Authority, to see how the applicant could have satisfied those requirements by reference to his mental health. In particular, there was no suggestion that any harm might come to him for reason of any of the matters mentioned in sub-s.5J(1)(a).

5. The second criterion required there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there was a real risk that the applicant would suffer significant harm. “Significant harm” is defined by s.36(2A) and relevantly involves an element of deliberate conduct or omission. Again, it is difficult on the material before the Authority to see how the applicant’s mental health could have brought him within those requirements.

6. The Authority did not resolve those questions by reference to the difficulties just mentioned. Rather, it did so by addressing the country information that related to the care available in Lebanon for those people who suffer from the effects of mental illness. That is, it focussed on the risk that the applicant might suffer some form of harm rather than the reason for that harm, or whether the harm may be deliberately inflicted.

7. According to the Authority, the country information went both ways: some suggested that some care available to mentally ill people in Lebanon was potentially limited to Syrian refugees, there was inequality between the services available in urban and rural areas, and there were relatively few psychiatrists in Lebanon. On the other hand, there was information that there were a significant number of psychologists and other mental health workers, the government had announced that it would cover mental health as part of a comprehensive medical plan and the Ministry of Health accepted responsibility for helping those who could not afford treatment.

8. The applicant’s arguments about this information might be accepted if the question for the Authority (and its findings) was whether there was comprehensive mental health care from psychiatrists available to everyone throughout Lebanon. However, that was neither the question asked of nor the finding made by the Authority. Rather, the questions asked of the Authority were more limited: was there a real risk of serious harm or significant harm in Lebanon? The Authority found that there was not. The reason for that finding was its conclusion, based on a consideration of all of the relevant evidence, that the applicant could have access to ongoing mental healthcare if he required it. That finding supported the Authority’s ultimate conclusion and was itself open on the evidence.

9. The absence of comprehensive mental health care did not require the conclusion that there was no health care. There was, in addition to access to mental health care in urban areas, a commitment by the government to improve things, as well as a significant number of psychologists and mental health workers.

10. For those reasons, the third ground fails.

Conclusion

1. There is no jurisdictional error in the Authority’s decision. The application must be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         29 March 2018