EFG18 v Minister for Immigration
[2020] FCCA 430
•26 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EFG18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 430 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Lebanon – applicant disbelieved in critical respects – whether the Tribunal decision is vitiated by unreasonable fact finding considered – error made not material hence not going to jurisdiction. |
| Legislation: Migration Act 1958 (Cth), ss.36, 438 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | EFG18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2269 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 26 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Immi House Legal |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application as amended by leave granted on 27 February 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2269 of 2018
| EFG18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 July 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Lebanon who last arrived in Australia on 28 September 2013 as the holder of a tourist (subclass 676) visa.[1]
[1] Court Book (CB) 66
On 1 November 2013, the applicant made an application for a protection visa.[2] In that application, the applicant relevantly made the following claims:[3]
[2] CB 2–35
[3] CB 21-23; errors in original
43. Why did you leave that country?
I left Lebanon due to the ongoing threats and harassment by the Lebanese intelligence. The Lebanese intelligence have also been monitoring me and harassing me on a count of my son … who is still wanted by them.
I am a elderly woman of extremely frail health and cannot withstand the level of harassment and mistreatment that I have been subjected to on account of my son being wanted by the Lebanese intelligence.
44. Have you experienced harm in that country?
I have been subjected to an ongoing episode of mistreatment at the hands of the Lebanese intelligence including; harassment, monitoring, extensive interrogation, physical mistreatment and threats of further physical mistreatment if I do no cooperate with the Lebanese intelligence.
45. What do you fear may happen to you if you go back to that country?
I fear that if I return to Lebanon I will continue to suffer mistreatment at the hands of the Lebanese intelligence and given my vulnerable health I may not be able to survive such ordeals.
46. Who do you think may harm/mistreat you if you go back?
The Lebanese intelligence.
47. Why do you think this will happen to you if you go back?
The Lebanese intelligence have been harassing me and subjecting me to serious harm on account of my son who is still wanted by them. The Lebanese intelligence have been forcefully seeking to extract information about my son from me whom they believe I have been maintaining contact with.
On 8 December 2014, the delegate made a decision to refuse to grant to the applicant a protection visa.[4]
[4] CB 53
On 17 December 2014, the applicant made an application to the Tribunal for review of the delegate's decision.[5]
[5] CB 78
On 26 September 2016, the applicant provided a statutory declaration to the Tribunal (statutory declaration), which raised a new claim.[6]
[6] CB 114
On 21 November 2016, the applicant appeared at a hearing to give evidence and to present arguments before the Tribunal.[7]
[7] CB 131
On 24 January 2018, the applicant appeared at another hearing before the Tribunal.[8]
[8] CB 146
On 30 January 2018, the Tribunal made a direction that it was satisfied, pursuant to s.438(4) of the Migration Act 1958 (Cth) (Migration Act), that information relating to the applicant’s son's protection visa application, namely, the decision of a delegate of the Minister and a decision of the then Refugee Review Tribunal on review, should be disclosed to the applicant and her agent.[9]
[9] CB 154
On 14 February 2018, the applicant’s then agent provided a submission to the Tribunal in which he said that it should place weight on her age and language barriers and her psychological and physical health in dealing with inconsistencies in her oral evidence which were put to her at the second hearing.[10] In support of that contention, the applicant provided a letter from her psychologist which stated that her son had been working with army intelligence in Lebanon and was the subject of an assassination attempt. The applicant experienced abuse and threats after her son departed Lebanon and was suffering symptoms relating to these traumatic events and her fear of returning to that country.[11]
[10] CB 162
[11] CB 164
On 20 July 2018, the Tribunal affirmed the decision under review.[12]
[12] CB 172
Claims
In the protection visa application, the applicant claimed to be the subject of ongoing threats and harassment from Lebanese intelligence who had been monitoring her because her son was wanted by them. She claimed that she was elderly and frail and cannot withstand their mistreatment.[13]
[13] CB 21–24
In the statutory declaration, the applicant claimed that her son had been sentenced to death in Lebanon; however, he was at the time in Australia and his application for a protection visa was before the Tribunal. He had previously served a custodial sentence in Lebanon during which he was severely mistreated. He had been falsely convicted of supporting and associating with militant groups. The applicant had been the subject of interrogation and mistreatment by Lebanese intelligence on account of their interest in her son and her visiting him in Australia as they were aware that he was here. She was frail and would be unable to endure any further detention by them.[14]
[14] CB 115-116
Tribunal decision
The Tribunal summarised the evidence given at the first and second hearings at [27]–[54] and [56]-[81] of its reasons. It then set out its factual findings relevantly at [91]-[111] of its reasons.
The Tribunal accepted that the applicant's son had been imprisoned in Lebanon from 2007–2009, was shot in 2009, and convicted of terrorism offences in 2014. Further, it accepted that he was the subject of a suspended death sentence, that he was involved in other pending criminal matters in Lebanon, and that he may be arrested if he were returned to Lebanon. However, the Tribunal did not accept at [91] that there was a real risk that the death penalty would be carried out on the son in the reasonably foreseeable future or that he was severely mistreated and tortured whilst in prison.
At [92], the Tribunal stated that “[n]otwithstanding this” (i.e. what it said at [91]), it held “significant concerns about the applicant’s credibility and consider[ed] that [she] ha[d] not provided truthful information to the Tribunal.”
The Tribunal noted that, as indicated in the delegate's decision, the son gave evidence before the then Migration Review Tribunal (MRT) in 2013 that the applicant had not been affected in any way as a result of his problems in Lebanon. Further, the Tribunal referred at [93] to the fact that the delegate had noted that the applicant herself said at that time that “she would return to Lebanon within the period of any visa granted to her”. The Tribunal at [94] found that only one month later the applicant “completely changed her evidence” which caused it to consider that she had “not provided truthful information”.
In relation to the applicant's claims that she had experienced harm in Lebanon, the Tribunal observed at [98]–[99] that “it would be reasonably expected that [she] would be able to provide specific and detailed accounts of instances where such incidents happened”, but that she had not done so. It noted at [100] that the applicant could not adequately explain how she knew that it was Lebanese intelligence that was responsible for any of the claimed incidents or could not describe who had questioned her. The Tribunal further noted that, ultimately, the applicant conceded that she did not know whether the people were, in fact, Lebanese intelligence.
The Tribunal found that the applicant:[15]
could not give specific details of a single specific incident where the alleged harm happened to her or of a single instance where she was threatened or harassed or monitored or ‘extensively’ interrogated or physically mistreated or threats of further physical mistreatment were made.
[15] [101]
The Tribunal at [101]–[102] then turned to the applicant's claim that somebody had threatened to kill her if she did not bring her son in when he was shot and hospitalised. It noted that she had not raised this claim previously, that it was “nonsensical” in circumstances where the authorities would have known where he was, and that her claims were “confusing and conflicting”. The Tribunal observed at [103] that it would have expected someone who had been the subject to a death threat to have “a very clear recollection of that event” but that the applicant's evidence was “not convincing” and that she avoided answering questions on the matter.
In consideration of the claim that the applicant was questioned about her son after he was released from prison in 2009, the Tribunal noted at [104] that she had not come to Australia until 2013 and found that she was unable to provide “more detailed specific evidence in regard to such instances” which allegedly had occurred every week for four years. The Tribunal noted that the applicant admitted at the hearing that “the people did nothing else to her apart from ask her questions” and that “she was not harmed in Lebanon”. It found that that evidence was “completely at odds with her written claims that she was harmed.” It considered that, “if the Lebanese authorities wanted to arrest or detain or interrogate” her, then they would have done so in the four years preceding her departure. The Tribunal also found at [105] that her evidence that she was monitored during this time to be “vague” and devoid of detail.
For these reasons, the Tribunal did not accept that:[16]
a)the applicant “was ever subjected to interrogation, insults and mistreatment at the hands of Lebanese intelligence on account of being the mother of [her son]”;
b)the applicant “was ever subjected to ongoing threats and harassment by the Lebanese intelligence”;
c)Lebanese intelligence “had also been monitoring her and harassing her on account of her son”; or
d)the applicant had “experienced harm in Lebanon” such as “ongoing harassment”, “monitoring”, “extensive interrogation”, “physical mistreatment”, and “threats of further physical mistreatment if she did not cooperate with the Lebanese intelligence”.
[16] [106]-[107]
At [108], the Tribunal concluded that it did not accept that, if the applicant returned to Lebanon, she:
would once again be subjected to interrogations and mistreatment at the hands of Lebanese intelligence on account of not only being the mother of [her son] but also on the basis of having arrived back from Australia where [her son] is seeking protection
Nor did the Tribunal accept that the applicant had “ever been subjected to interrogations and mistreatment at the hands of Lebanese intelligence”.
At [109], the Tribunal stated that it did not accept that there was “a real risk that the applicant will face significant harm in the reasonably foreseeable future if she returned to Lebanon” on account of:
a)being her son’s mother;
b)being someone who arrived back from Australia where her son was seeking protection, Lebanese intelligence wanting to know what her son was doing,
c)being detained herself as a means of getting to her son,
d)or helping her son to flee.
The Tribunal went on to find that, “if any of these outcomes were likely to occur, they would have occurred to the applicant during her time in Lebanon or to another family member in Lebanon”.[17] The Tribunal referred to its rejection of the applicant’s claims that “she suffered harm in Lebanon, including for the three years she was in Lebanon after her son … came to Australia”, and the absence of evidence “to substantiate the assertion that there was a real risk that any of those claims of future harm were likely to occur in the foreseeable future should [she] return to Lebanon”.
[17] [110]
The Tribunal noted at [111] that, when asked what she feared currently in Lebanon, the applicant merely indicated that she did not have anyone there and made no mention of any fear of “Lebanese intelligence or anyone else in Lebanon”. In the circumstances, it found that the applicant “ha[d] not provided truthful information … about her claims” and that her claims of harm in Lebanon were “not credible”.
Relevantly for these reasons, the Tribunal was not satisfied that the applicant met the criteria in ss.36(2)(a) or (aa) of the Migration Act and, accordingly, affirmed the delegate’s decision.[18]
[18] [116]–[127]
The current proceedings
These proceedings began with a show cause application filed on 15 August 2018.
At the trial, on 27 February 2020, I granted leave for the applicant to file and rely upon a proposed amended application containing the following grounds:
1.The Tribunal made a jurisdictional error by making a legally unreasonable finding of fact.
a.The Tribunal found at paragraph 91 of its decision that the core of the Applicant's claims was that she was subject to harm as a result of issues associated with her son;
b.The Tribunal found at paragraph 91 of its decision that the applicant's son "is the subject of a death sentence (suspended)" and "does not accept that that there is a real risk that, in the reasonably foreseeable future, the death penalty will be carried out on the applicant's son … should he return to Lebanon;
c. The Tribunal either adopted or made an identical finding to its finding with respect to the "death sentence (suspended)" of the Applicant's son in his protection visa application (1506898 (Refugee) [2018] AATA 2889 at [15]-[16]);
d. The Tribunal was constituted for the review proceeding of the Applicant's son by the same member who heard the review proceeding of the Applicant's son, conducted hearings in both proceedings at the same or similar times and made decisions on the same day;
e. The Tribunal's finding with respect to the "death sentence (suspended)" of the Applicant's son was quashed for legal unreasonableness by the Federal Court in DZT18 v Minister for Home Affairs [2019] FCA 1639 at [17]-[20] per Davies J;
f.The Tribunal's adopted or identical finding in the review proceeding of the Applicant should thus also be quashed for legal unreasonableness, particularly as, despite the general proposition that inconsistency in Tribunal decision-making is not per se a jurisdictional error, there was a "virtual duplication of circumstances and conditions": DNQ17 v Minister for Immigration and Border Protection [2018] FCA 1781 at [30][31] per Derrington J;
g. The Tribunal's finding with respect to the "death sentence (suspended)" of the Applicant's son was material to the result with respect to the Applicant as the death sentence was given in 2014 and, if the Tribunal had found that it was not suspended, then it would have been material to the Tribunal's assessment of harm to the Applicant in the event of her return to Lebanon at paragraph 110 of its decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45].
I have before me as evidence the court book filed on 24 October 2018 and a supplementary court book filed on 30 January 2020. The supplementary court book contains a decision of the former Refugee Review Tribunal concerning the applicant’s son made on 30 August 2011 and a decision of a delegate of the Minister which preceded it. The significance of that decision is that it was found to have been affected by legal unreasonableness by the Federal Court (Davies J) in DZT18 v Minister for Home Affairs.[19]
[19] [2019] FCA 1639
Consideration
The essence of the applicant’s complaint is the proposition that the Tribunal decision in issue is affected by the same unreasonableness as was identified by Davies J in DZT18 in relation to the decision concerning her son. The applicant relevantly contends as follows:
The relevant paragraphs of the Tribunal’s decision are as follows:[20]
91. The Tribunal notes that the core of the applicant’s claim is that she was subject to harm as a result of issues associated with her son …. The Tribunal notes that it accepts that her son … was jailed in Lebanon from 2007 to 2009, was shot in Lebanon in 2009 and was convicted of terrorism offences in Lebanon in 2014. The Tribunal also accepts that the applicant’s son … is the subject of a death sentence (suspended) and that there are a number of “additional criminal matters pending” in Lebanon in respect of the applicant’s son …. The Tribunal accepts that the applicant’s son … may be arrested in relation to the “additional criminal matters” if he returned to Lebanon in the reasonably foreseeable future but does not accept that there is a real risk that, in the reasonably foreseeable future, the death penalty will be carried out on the applicant’s son … should he return to Lebanon. …
…
110. The Tribunal considers that if any of these outcomes were likely to occur they would have occurred to the applicant during her time in Lebanon or to another family member in Lebanon. The Tribunal has already not accepted the applicant’s claims that she suffered harm in Lebanon, including for the three years in Lebanon after her son … came to Australia. There is no evidence that any of the alleged actions have occurred to the applicant’s daughters in Lebanon in the nearly eight years since the applicant’s son … left Lebanon. There is no evidence before the Tribunal to substantiate the assertion that there was a real risk that any of those claims of future harm were likely to occur in foreseeable future should the applicant return to Lebanon.
[20] CB 186-187, 190
DZT18
In DZT18, Ground 1 of the challenge to the decision of the Tribunal with respect to the applicant’s son alleged legal unreasonableness in the finding of the Tribunal that the death sentence of the applicant’s son had been suspended.
In considering this ground, Davies J began by describing the evidence in support of the claim of the applicant’s son that he had been imprisoned from 2007 to 2009:[21]
a)a written statement from the appellant’s lawyer, Mr Zakaria, in Arabic dated 22 May 2010 (“the first statement”), the English translation of which was that:
[Mr Zakaria was] the attorney of [the appellant] in the case that lent [sic] to his arrest in Roumieh Detention Prison from 26.05.2007 to 29.05.2009 where he was released because he was not guilty in a terror crime they attributed to him.
[21] at [14]
b)a letter from Mr Zakaria in Arabic dated 28 May 2010 to the “Investigating Magistrate of Beirut” (“the second statement”), the English translation of which was that:
Whereas my mandate was in detention for an approx.. period of three years due to the crime of Terror and released against caution:
Whereas my mandate needs official statement showing the date of his arrest and release;
I kindly ask your Presidency to deliver official writing statement showing the date of the provisional detention and the subject of crime for which he was arrested.
c)an English translation of an official record of the Lebanese Ministry of Justice dated 30 June 2010 which stated that the appellant had been arrested on 13 September 2007 and released on 29 May 2009.
Davies J then proceeded to describe the evidence by the applicant’s son in support of his claim that in 2014 he received the death penalty:[22]
a)the ruling of the Judicial Council translated by a NAATI accredited translator which stated that an arrest warrant was issued in the appellant’s name and put into effect on 15 May 2014 after he was tried in absentia, convicted and sentenced to death;
b)an (undated) written statement from Mr Zakaria, in Arabic (“the third statement”), the English translation of which was that:
I, the undersigned, lawyer Fawaz Zakaria, declare that I am the agent of [the appellant], in criminal proceedings before the Justice Council has issued a judgment against in absentia under no. 30/2014 dated 24/10/2014 was spent his execution and has been suspended for almost two years and then released on bail.
this document was translated on 23 November 2016;
c)advice received from the Australian Embassy in Beirut in December 2016 which verified the genuineness of the conviction and death sentence and advised that according to the Lebanese authorities the appellant had additional criminal matters pending against him; and
d)further advice received by the Tribunal from the Department of Home Affairs dated 19 March 2018 again advising that the Lebanese authorities had informally verified that the appellant’s claims to have been sentenced to death in absentia by the Judicial Council in Lebanon were genuine.
[22] at [15]
Davies J then proceeded to assess the legal unreasonableness of the finding by the Tribunal that the death sentence of the son of the applicant had been suspended. In essence, her Honour found it legally unreasonable for the Tribunal to have relied upon the third statement of the lawyer for the son of the applicant, while rejecting the first statement and the second statement from the same source.
Her Honour stated:[23]
[23] at [17]-[20]
17. The finding that the appellant would not face the death penalty if he returned to Lebanon was based on the information contained in the third statement from Mr Zakaria, which the Tribunal stated it had no reason to doubt. Yet, contrary to the information contained in the first statement from Mr Zakaria that the appellant had been detained at Roumieh prison between 2007 and 2009, the Tribunal found the appellant’s claim to have been imprisoned in Roumieh prison was not credible, reasoning that the appellant:
… was never able to provide specific and consistent information about Roumieh prison or of the alleged mistreatment he claimed he was subjected to there. The [appellant’s] evidence was so vague, evasive and non-specific it did not convince the Tribunal that he himself [had] actually experienced what he claimed to have experienced…
There is an obvious significant and unexplained inconsistency in the reasoning process by which, on the one hand, the Tribunal made a finding contrary to the lawyer’s statement that the appellant had been detained in Roumieh prison between 2007 and 2009, yet uncritically accepted the information in his third statement on the basis there was no reason to doubt its accuracy. The inconsistency plainly bears on the logicality of the findings made by the Tribunal.
18. Nor did the Tribunal attempt to reconcile the apparent inconsistency between the appellant’s lawyer’s first statement that the appellant “was released [in 2009] because he was not guilty in a terror crime they attributed to him” with either his second statement that the appellant had been “released against caution”, whatever that may mean, or the evidence that the appellant was convicted of terrorism charges in 2014 in absentia and sentenced to death for terrorism charges. These inconsistencies materially bore upon the accuracy and reliability of the appellant’s lawyer’s third statement and, moreover, provided reason to question the English translation of each of the Arabic documents.
19. The English translation of the third statement has obvious difficulties and ambiguities which required clarification, particularly as there was no indication on the official record of the conviction and sentence or from the enquiries made of the Lebanese authorities to support that the death sentence was suspended for two years or that the appellant had already served his time for the offences for which he was convicted.
20.The Tribunal neither dealt with the inconsistencies nor dealt with the ambiguities but proceeded to make a finding in a way which cannot be reconciled with other documents and statements. Accordingly I find that the FCC erred by failing to find that the Tribunal fell into jurisdictional error by making a legally unreasonable finding of fact and ground 1 has succeeded.
Significance of DZT18 in the present case
The applicant submits that her Honour’s conclusion falls to be applied in the present case. The review proceeding before the Tribunal with respect to the applicant is said to have been heard and decided at the same time as the review proceeding before the Tribunal with respect to the applicant’s son. The member who constituted the Tribunal in each review proceeding was the same. The applicant contends that the Tribunal does not provide independent reasoning in its decision with respect to the applicant as to the basis for its finding that the death sentence of the applicant’s son has been suspended.
Adoption of prior finding
The applicant submits that it may be inferred from the foregoing that the Tribunal simply adopted its finding with respect to the death sentence of the applicant’s son in its decision-making with respect to the applicant’s matter. In other words, the finding already made with respect to the “death sentence (suspended)” in the applicant’s son’s review proceeding was applied in the present review proceeding. It is said to follow that, upon the finding in the other review proceeding being quashed for legal unreasonableness, the same result would follow in relation to the present review proceeding. The only additional question would be materiality, which is addressed further below.
Making of identical finding
The applicant submits that in the alternative, it may be inferred that the Tribunal reached an independent conclusion in the review proceeding with respect to the applicant that her son’s “death sentence (suspended)” which was identical to the finding it reached in the review proceeding with respect to the applicant’s son. Even if this were not so, there is nothing to suggest that the evidence in support of the finding was any different from the evidence in support of the same finding in other review proceeding. Accordingly, the applicant contends that it must fall for the same reasons as those articulated by Davies J in DZT18.
Extent of overlap between review proceedings
The applicant candidly acknowledges the inconsistency between the decision-making of the Tribunal across more than one review proceeding, even with respect to protection claims of members of the same family on related facts, does not necessarily give rise to jurisdictional error. However, it may do so where there is a “virtual duplication of circumstances and conditions”.[24] So much is said to be present here with the overlap of hearings, time of decision-making and, it would appear, evidence in support of the relevant finding.
[24] DNQ17 v Minister for Immigration [2018] FCA 1781 at [30]-[31] per Derrington J, citing Dilatte v MacTiernan [2002] WASCA 100 at [62]
Materiality
This leaves the question of materiality. That is, in the absence of error by the Tribunal in the review proceeding with respect to the applicant in finding that the death sentence of the applicant’s son was suspended, could there have been a realistic possibility of a different result?[25]
[25] Minister for Immigration v SZMTA (2019) 264 CLR 421 at [45]
The Tribunal certainly rejected claims by the applicant to already have attracted attention from the Lebanese authorities on account of her son before her most recent departure from Lebanon in September 2013.[26] However, notwithstanding that finding, the Tribunal went on to consider whether upon a hypothetical return to Lebanon, including by reference to events following her departure such as the death sentence of the son of the applicant in 2014, the applicant would face harm.[27]
[26] CB 175 [17]; CB 187-189 [92]-[108]
[27] CB 189-190 [109]
It is submitted by the applicant that there is a significant difference, from the standpoint of an apprehension of harm, between a “death sentence (suspended)” and a death sentence which is extant and, therefore, the authorities wish to carry out. The death sentence was imposed in 2014 and, therefore, it is of less relevance what occurred in relation to the applicant or her daughters before that event. It is true that the Tribunal suggests the applicant’s daughters have not received attention in Lebanon since 2014. However, in all of the circumstances, particularly the erroneous finding that the death sentence was suspended, and the potential finding that the death sentence arises for implementation, the applicant submits that a different conclusion could possibly be reached with respect to harm to the applicant on account of her son’s criminality.
While the applicant’s contentions are clearly arguable, I prefer the Minister’s submissions as to the issue between the parties. The key issue is whether the Tribunal in the present case made a jurisdictional error by making a legally unreasonable finding of fact at [91] of its reasons. The impugned findings were that the applicant’s son was “the subject of a death sentence (suspended)” and that the Tribunal did not accept that there was “a real risk that, in the reasonably foreseeable future, the death penalty will be carried out on the applicant’s son … should he return to Lebanon”.
As set out above, the applicant contends that the conclusion reached by Davies J[28] applies equally to the impugned findings at [91] of the Tribunal’s decision.
[28] DZT18 at [17]-[20]
The Minister does not dispute that relevantly identical findings of fact were made by the Tribunal in the present case at [91] and that there is nothing in the material to suggest that they were based on evidence other than that upon which the Tribunal relied in making the findings which were successfully impugned in proceedings before Davies J.
However, contrary to the applicant’s submissions, I find that the error made by the Tribunal in making the impugned findings at [91] was not jurisdictional in the circumstances of the present case as it was not sufficiently material to realistically affect the outcome of the review.[29]
[29]SZMTA at 445 [45] per Bell, Gageler and Keane JJ
While her son claimed that he would face harm in Lebanon relevantly on account of his having being sentenced to death in absentia, the applicant claimed to fear harm from Lebanese intelligence who she said were monitoring and harassing her on account of her association with her son.
The findings made by the Tribunal at [92]-[111] of its reasons for decision dealt with the applicant’s claims to fear harm at a factual level. Those findings were unaffected by the conclusions reached at [91]. So much is apparent from the opening words of [92] (“[n]otwithstanding this”). I accept the Minister’s submissions that the Tribunal there should be understood to be saying (relevantly) that, whether or not the applicant’s son will actually face the death penalty on his return to Lebanon, her claims to fear harm on the bases set out in her evidence were false.
The Tribunal rejected the applicant’s claims to have been mistreated by Lebanese intelligence in the past and that she would face mistreatment on her return to Lebanon on account of her association with her son or on the basis of his having sought protection in Australia.[30] Those conclusions were unaffected by the findings at [91]. That is not seriously in dispute.
[30] at [106], [108]
In my view, the same can be said of the Tribunal’s findings at [109]-[111] that the applicant did not face a risk of harm in the reasonably foreseeable future. Any finding by the Tribunal that the applicant’s son faced a real chance of being executed in Lebanon (as opposed to being a person on whom had been imposed a suspended death sentence) could not realistically have affected the result of the review in the light of the findings at [109]-[111], as they, like the findings at [106] and [108], rejected the applicant’s claims at a higher level of generality.[31] For example, at [109], the Tribunal rejected the claim that the applicant will face harm in the future as a result of “being [her son]’s mother” or “Lebanese intelligence wanting to know what [her son] is doing”, at [110], the Tribunal found that there was “no evidence … to substantiate the assertion that there was a real risk that any … claims of future harm were likely to occur in the foreseeable future should the applicant return to Lebanon”, and at [111] the Tribunal found that the applicant did not provide “truthful information … about her claims” and that her “claims of harm in Lebanon [we]re not credible”. Those findings subsumed any finding that might have been made at [91] that the applicant’s son faced a real chance of harm by reason of the Lebanese courts having sentenced him to death.
[31] Minister for Immigration v Yusuf (2001) 206 CLR 323 [91] per McHugh, Gummow and Hayne JJ; Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ
In my opinion, the applicant’s contention that a finding that her son faced a real chance of facing the death penalty on his return to Lebanon and not merely being a person who had received a suspended sentence could have made a difference to the outcome of the review rested upon a premise (that she faced a real risk of harm as a result of her association with her son) that had been rejected at [106] and [108]-[111].[32]
[32] WAEE at [47]
The Tribunal’s conclusions at [110]-[111] were based also on the fact that the applicant made no mention of any fear of harm of Lebanese intelligence currently and that there was no evidence that the applicant’s daughters had suffered harm in the eight years that her son had left Lebanon. Contrary to the applicant’s submissions, it is difficult to see how those conclusions could realistically have been any different had the Tribunal found, at [91], that the applicant’s son faced the death penalty in Lebanon.
In any event, the Tribunal had found, at [91], that there were “a number of ‘additional criminal matters pending’ in Lebanon in respect of the applicant’s son”. Clearly enough, the Tribunal considered that, despite the applicant's son continuing to be of interest to the Lebanese authorities, the applicant would not face harm on her return. In these circumstances, the erroneous factual finding as to whether the applicant's son would or would not face the death penalty could not realistically have affected the outcome of the review.
Conclusion
I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 March 2020
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