ERB17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 358

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ERB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 358

File number(s):

MLG 2245 of 2017

Judgment of:

JUDGE GIVEN

Date of judgment:

11 May 2023  

Catchwords:

MIGRATION – Failure to consider claims articulated

Legislation:

Migration Act 1958 (Cth) ss 5H, 36, 473CB

Cases cited:

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1

Nathanson v Minister for Home Affairs (2022) 403 ALR 398

XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535

Division:

Division 2 General Federal Law

Number of paragraphs:

50

Date of hearing:

30 January 2023

Place:

Sydney

Counsel for the Applicant:

Mr J Kenneally

Solicitor for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr T Lettenmaier

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 2245 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ERB17
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	11 May 2023

THE COURT ORDERS THAT:

1.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 19 September 2017 into this Court for the purpose of quashing it.

2.A writ of mandamus shall issue requiring the Immigration Assessment Authority to re-determine, according to law, the review referred to it.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GIVEN:

1. By application filed on 19 October 2017, and amended on 5 October 2022, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 19 September 2017, affirming a decision of a delegate of the first respondent (delegate) to refuse to grant the applicant a Safe Haven Enterprise Visa (visa).

   Background

2. The background to this matter is derived from the written submissions of the first respondent, but does not appear to be in dispute.

3. On 25 April 2013, the applicant, a citizen of Lebanon, arrived on Christmas Island as an unauthorised maritime arrival (UMA) (Court Book (CB) 28 to 29 and 69).  On 14 November 2016, the applicant applied for the visa (CB 43 to 99).  Included with the visa application was a Statutory Declaration made by the applicant on 11 November 2016 in support of his claims for protection (CB 94 to 98) (2016 Statutory Declaration).

4. On 19 December 2016, the applicant’s representative made submissions on his behalf to the delegate (CB 111 to 123) (delegate submission).  Included with the delegate submission were statements from a friend of the applicant, who said that he found him bleeding in the applicant’s shop (CB 124), as well as a statement from the mayor of the applicant’s home area.

5. On 28 February 2017, the applicant attended an interview with the delegate to discuss his claims for protection (delegate interview) (CB 149).

6. On 10 March 2017, the applicant provided the delegate with a further Statutory Declaration made by him on 9 March 2017 (2017 Statutory Declaration).  The 2017 Statutory Declaration sought to address concerns and questions raised at the delegate interview, to explain that the applicant had felt stressed and anxious during the delegate interview and provided a psychological report dated 27 February 2017 (CB 164 to 170).

7. On 6 June 2017, the delegate refused the visa application (CB 171 to 186) and referred the decision to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (Act) (CB 188 to 189).

8. The applicant claimed to fear harm because:

   (a)in 1998 when he was 13 years old, he was playing on the roof of his home when masked members of the Ba’ath party arrived and threw him from the roof (CB 94 at [3]);

   (b)from 2011 to 2013 he was harassed by members of the Ba’ath party.  At the delegate interview, the applicant claimed that there had been no incidents from 2011 to 2013, but later claimed that the Ba’ath party harassed everyone (CB 94 at [4], 165 at [18] and 177);

   (c)in 2012 problems began in an identified place involving a war between Sunni and Alawite Muslims, and in 2013 the fighting had become very serious. As a result of the conflict, bullets and rockets were sprayed across the applicant’s shop. He witnessed people dying and often had to close the shop when the shooting commenced (CB 95 at [12] to [14]);

   (d)in 2013 some Salafi militia attended his shop and requested that he go with them.  When the applicant refused to go with them, they threatened to kill him, left his shop but told him they would return.  They returned a second time to his shop threatening to kidnap his children (CB 95 at [15] to [17] and 164 at [11]);

   (e)approximately one month later Fatah al Islam members attended the applicant’s shop.  They told the applicant to close his shop and go with them to fight the Alawites.  When he refused, they hit him and stabbed him with a knife, advising that next time they would kill him.  A friend came to his shop and took him to hospital to receive treatment.  On the way to the hospital they were stopped and beaten by men asking if they were Alawite or Sunni (CB 95 to 96 at [18] to [24] and 164 at [14]);

   (f)the Sunni militia whom he defied will harm him and that he will be targeted by reason of being a Sunni Muslim who refused to join a Sunni militia, and who fled Lebanon to seek protection in a Western country.  It was said that people who defy militia are often abducted, imprisoned, tortured or even killed (CB 96 to 97 at [30] to [33]);

   (g)he will be targeted for being a young Sunni, small businessman without allegiance to Sunni militia in particular places (which he specified) (CB 97 at [32]);

   (h)his family have received several threatening letters from the Salafist and Fatah al Islam groups addressed to the applicant, advising that they will get him when he returns to Lebanon (CB 97 at [33(a)]);

   (i)the influence of the Salafist and Fatah al Islam groups has increased as the situation in Syria worsens (CB 97 at [33(c)]);

   (j)if returned to Lebanon, the applicant would be unable to find work to support himself.  He will not be able to run his shop as the militia will find him there (CB 97 at [34(a)]); and

   (k)the applicant suffers from Post-Traumatic Stress Disorder, mixed anxiety disorders and depression (CB 168).

   The Authority’s decision

9. On 19 June 2017, the delegate’s decision was referred to the Authority for review, following which (and in the absence of the applicant having made any further submissions), the Authority made its decision on 19 September 2017 (CB 233 to 244).

10. The Authority had regard to the material referred to it by the Secretary under s 473CB of the Act (CB 235 at [4]) and noted that no information or submissions had been received from the applicant, notwithstanding that the applicant’s former adviser indicated to the Authority that they would provide submissions by 5 September 2017 (CB 125 at [5]).

11. The Authority accepted that the applicant has a diagnosed psychological condition (CB 236 at [10]).  However, it did not accept that any of the applicant’s problems and/or stress accounted for inconsistencies in his evidence about assaults at checkpoints, or his family receiving threatening letters and telephone calls.

12. The Authority also did not accept that any inconsistencies in the applicant’s evidence were the result of his statement made in support of his claims allegedly having not being read back to him by an interpreter (CB 237 to 238 at [15]).  

13. The Authority noted that the applicant was represented by an experienced migration lawyer, and that the applicant did not indicate that he was distressed or upset until he was confronted by the delegate with inconsistencies in his evidence at the delegate interview (CB 238 at [16]).

14. While the Authority accepted that the applicant had undertaken compulsory military training in Lebanon, it did not accept that he had a profile which would identify him as a potential recruit for extremist or militia organisations.  The Authority did not consider it plausible that a person with the applicant’s profile would attract the level of interest claimed by him (CB 238 at [17]).

15. In relation to the applicant’s claims that he was stabbed by members of Fatah al Islam in 2013, the Authority found it was implausible that the applicant would have not reported the incident to the police, or that he would fail obtain any medical records or other evidence of his attendance at the hospital.  The Authority did not accept that, even if he had been stabbed as claimed, that the incident was carried out by any extremist or militia organisations attempting to forcefully recruit him (CB 238 at [18]).  Further, the Authority did not accept that the applicant or his family were threatened by any groups trying to forcibly recruit him (CB 238 at [19]).

16. Having considered country information (CB 238 to 239 at [20]), the Authority found that there would be no more than a remote possibility that the applicant would be harmed because of sectarian or extremist violence in Lebanon, noting that the applicant did not claim that he or any family member had been involved in violent incidents, apart from being stabbed as claimed.  The Authority found that the applicant did not face a real chance of harm due to his ethnicity, religion or from any sectarian or generalised violence should he return to Lebanon (CB 239 at [21]).

17. The Authority found that the applicant did not meet the definition of refugee in s 5H of the Act and did not satisfy s 36(2)(a) of the Act (CB 239 at [22]).

18. Relying on its anterior factual findings, the Authority found that the applicant did not face a real risk of significant harm for reasons of extremist violence, or the general situation in Lebanon (CB 240 at [25]). The Authority found that the applicant did not satisfy s 36(2)(aa) of the Act (CB 240 at [27]).

    Proceedings before this Court

19. The applicant commenced these proceedings by an application to show cause filed with the Court on 19 October 2017, which contained 3 grounds of review.  At the time the proceedings were commenced the applicant was unrepresented and the matter was docketed to another Judge of the Court.  On 27 June 2018, the applicant appeared before a Registrar of the Court at a directions hearing at which orders were made, by consent, with a timetable for preparation of the matter.  The orders noted that the proceedings would be listed for a final hearing before the first primary Judge on a date to be advised (2018 orders).  The proceedings were later transferred to the central migration docket where they remained until being docketed to a different Judge of this Court.  Due to the subsequent unavailability of the second primary Judge to hear the matter, the parties were informed that the matter had been re-docketed to me and listed for hearing on 30 January 2023.  The 2018 orders remained extant as they were self-executing by reference to any hearing date.

20. On 25 October 2018, a Notice of Address for Service was filed on behalf of the applicant by his newly appointed solicitors.  An outline of written submissions and an Amended Application were later filed for the applicant on 5 October 2022, which was within time allowed by reference to the 2018 orders.

21. The first respondent filed an outline of written submissions on 20 October 2022.

22. By reason of the matter having been filed in the Melbourne Registry, and the Court presiding in Sydney, the parties appeared before me using the Microsoft Teams platform.  Each of the parties was represented by their respective Counsel.  The hearing connection appeared clear throughout and the parties and the Court did not have any difficulties in understanding one another.  At hearing, the Court Book was received in to evidence and marked Exhibit “1R”.

    Application for review

23. By the Amended Application the applicant advances the following grounds (anonymisation added):

    1. The IAA failed to consider the applicant’s claim to be a person to whom Australia has protection obligations within the meaning of s 36(2) of the Act due to his fear of serious or significant harm as a failed asylum seeker from a western country.

    Particulars

    a. The applicant claimed in his Statement of Claim dated 11 November 2016 and written submissions dated 19 December 2016 to fear harm from extremist groups because of having claimed asylum in Australia.

    b. The IAA was required to consider and failed to consider the claim.

    2. The IAA failed to consider the applicant’s claim to be a person to whom Australia has protection obligations within the meaning of s 36(2) of the Act due to his fear of serious or significant harm as a young Sunni businessman with no allegiance to Sunni Militias in [specified places].

    Particulars

    a. The applicant claimed in his Statement of Claim dated 11 November 2016 that:

    i. he feared extremists groups would target him on return to Lebanon as he was a young Sunni business man with no allegiance to Sunni militias; and

    ii. Sunni extremist groups had in the past said the applicant should not be working in his business [a place] but instead fighting in the Syrian war.

    b. The IAA was required to consider and failed to consider the claim.

    Ground 1

24. By this ground the applicant asserts that he made a (tolerably clear) standalone claim to fear harm as a returned asylum seeker and that this claim, while identified and considered by the delegate (CB 175 and 180), was not considered by the Authority.  The first respondent, while accepting there is no express reference in the Authority’s reasons for decision to the applicant claiming to be a returned asylum seeker simpliciter, says that this is understandable because the applicant’s claim to be a failed asylum seeker was “bundled up” with his primary claim to fear retribution for defying the Sunni militia.  The parties were agreed that this ground predominantly turns on an application of authorities such as AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (AYY17) per Collier, McKerracher and Banks-Smith JJ and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (the latter of which was cited by the Full Court in AYY17). 

25. In AYY17 the Full Court said, inter alia, the following at [18]:

    •The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

    •The Tribunal is only required to consider such claims where they are either:

    (a)  the subject of substantial clearly articulated argument, relying on established facts; or

    (b) clearly emerge from the materials: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration & Border Protection [2017] FCA 512 per Barker J (at [67]).

    •These principles apply to the IAA regime: Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

    … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]–[61] per Black CJ, French and Selway JJ).(Emphasis added.)

    •As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]–[68]):

    (a)  such a finding is not to be made lightly (NABE at [68]);

    (b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

    (c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration & Border Protection (2016) 241 FCR 214 per Markovic J (at [37]–[38])). In SZUTM, Markovic J said:

    37  While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

    38  Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

    (d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and

    (e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

26. In respect of the last of these principles, namely the manner in which an applicant’s claims develops over time, the instant applicant’s claims are broadly summarised at [8] above. However, given the nature of this ground, and for the purposes of an AYY17 analysis, it is prudent to have regard to the claims as made in their terms, and chronologically.  Accordingly, the following development of claims should be observed and include claims which also relevantly pertain to the second ground of review. 

27. The applicant’s 2016 Statutory Declaration relevantly contained the following (anonymisation and emphasis added) (CB 95 to 98):

    9.        My father had a [particular] shop in [a place] for more than 30 years.

    10.      I started helping my father in the shop when I was fifteen years of age.  I have not had any other form of employment and I am not able to earn a living in any other way.

    11.      In 2012 I took over my father’s business and ran it by myself.

    …

    15.  In 2013 when the war was intensifying some Salafi militia came to my shop and told me to go with them.  I recognised them as Salafi because they had long beards, no moustaches and very long hair worn in the Salafi way. 

    16.  I refused to go with them because I didn’t want to kill anyone.  They threatened to close down my shop if I didn’t go with them.  They left but told me that they would be back. 

    …

    19.      Around a month later Fata al Islam members came to my shop.  I recognised them as Fatah al Islam because they wore long black clothes and black bands on their heads which said “la ilah ila allah”.

    …

    31.  I fear that I would be targeted for being a Sunni Muslim who refused to join a Sunni militia and fled Lebanon to seek protection in a western country.  I believe that these extremist groups have a particular hatred of those who flee to a western country, they see us as traitors. 

    32.  Additionally I fear that I would be targeted for being a young Sunni, small businessman with no allegiance to Sunni Militias in [named places].  The fact that I defied two prominent militia grounds and fled to a western country would make me more of a target on return. 

    33.  I fear the Salafist groups and the Fatah-al-Islam who are looking for me in Lebanon would harm me if I was returned to Lebanon.  I believe this for the following reasons:

    a.        Since I left Lebanon, my family have received several threatening letters addressed to me.  I am told that the content of the letters are all along the lines of ‘we will get you when you return to Lebanon’, ‘you can run but you will have to return someday’. 

    …       

1. The applicant specifically relies on the claims made at [31] to [32] of the 2016 Statutory Declaration in respect of ground 1. 

2. Next, and of relevance in the sequence of the applicant’s claims, the applicant draws attention to the delegate submission where in relation to the south of Lebanon he claimed the following at CB 119 (anonymisation and emphasis added):

   [ERB17] fears that he may even be targeted by the Shiite organisation for being a Sunni should he relocate to the south. He fears that as a Sunni man returning from the west in the south, with no protection from Sunni militia he would be an easy target for Shia Extremists

   and this submission was put more broadly where (at CB 122) it states:

   [ERB17] fears that he would be identified as a person who sought asylum in a western country and targeted by Extremists who perceive this act as a treacherous act.

3. For the first respondent attention was initially sought to be drawn to the first iteration of the applicant’s protection claims in the arrival interview (CB 17 at Question 32) and a case assessment and biodata interview (CB 33 at Question “B1”), each of which took place on different dates in March 2013.  The first respondent contended that in those interviews the applicant had given only a very brief account of his interactions with the Sunni militia, and made no claims on those occasions to fear harm as a failed asylum seeker.   

4. That is so. However, it is also entirely unsurprising given that each of the sections of the interviews/questionnaires pertained to the reasons the applicant left Lebanon.  It would be strange for an applicant to say that they left a place because they feared return as an asylum seeker.  I reject the proposition that the applicant’s failure to mention his fear as a returned asylum seeker (or a person returning from the West) is relevant to the development of his claims, in that context.   

5. I find it is tolerably clear from the manner in which the applicant’s claims were advanced that he was making a separate claim to fear harm as a failed asylum seeker.  It places a tenuous gloss on the use of the conjunctive “and” in each of [31] and [32] of the 2016 Statutory Declaration to assume that, by this, the applicant intended to mean that the latter claim was linked only to the former claim, rather than that he intended to use the word “and” to mean “as well as…”. 

6. A fair and contextual reading of the applicant’s claims shows that even though he referred to the claim about being a failed asylum seeker adjunct to the claims in respect of Sunni extremists, supports that it was a different claim than that which turned upon his activities as a Sunni businessman, such that it needed to be considered as a standalone claim.  As such, I also reject the first respondent’s submission that the applicant’s claimed fear of harm concerning his having sought asylum was predicated on his defiance of the Sunni militia in relation to closing his business and/or going to fight for them, and that as a result of the Authority having rejected that aspect of the applicant’s claim (see CB 238 at [19]), there was no reason to further consider it.  

7. The first respondent submitted that in the event the Court found did find there to be a standalone claim that the applicant feared harm as a failed asylum seeker, and that the Authority failed to consider it (which was not conceded), that such a failure could not have realistically deprived the applicant of the opportunity of a successful outcome: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [72] per Kiefel CJ, Gageler and Keane JJ and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 per Bell, Gageler and Keane JJ at [45] and Nathanson v Minister for Home Affairs (2022) 403 ALR 398 at [32] per Kiefel CJ, Keane and Gleeson JJ.

8. The basis for that submission is said to be that the delegate’s decision, which did identify (by reference to a Department of Foreign Affairs and Trade (DFAT report)) that there was no evidence that failed asylum seekers were subjected to discrimination or violence when they returned to Lebanon (CB 180).  As such, the first respondent says that where the applicant’s primary claim regarding the Sunni militia was rejected and the failure to consider that claim could not have realistically affected the Authority’s decision.  It is submitted that as a result, the outcome could realistically have been different. I disagree. 

9. In Nathanson (supra) at [33] the majority of the High Court said (inter alia) the following:

   There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding.

10. Having accepted that the applicant articulated a clear, distinct claim to fear harm as a returned asylum seeker, the Authority was required to consider whether this created a risk of harm to the applicant in respect of both s 36(2)(a) and (aa). It did not. I find that failure to consider his standalone claim to be in error. Further, there was sufficient information before the Authority which might have caused the Authority to conclude that there was a sufficient chance or risk of harm to the applicant as a failed asylum seeker (who had been returned (see [31] above)) that he met either s 36(2)(a) or (aa) of the Act. As such, had the Authority not erred in the manner it did, then applying a counter factual, it could realistically have reached a different decision. I find the error to be material and, accordingly, jurisdictional.

    Ground 2

11. By this ground the applicant contends that, having claimed he would have a profile on return to Lebanon as a young Sunni businessman who refused to align himself with Sunni militias, the Authority was also required to consider this claim, and erred by failing to do so (citing Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 (BBS16) at [79] per Kenny, Tracey and Griffiths JJ) .

12. The applicant claimed that his father owned a particular retail business (which has not been described lest it lead to identification of the applicant)[1]. The applicant claimed to have worked in the shop from the age of 15 and eventually to have taken over “the business” from his father in 2012 (see 2016 Statutory Declaration at [11], extracted at [28] above). He claimed that the next year, while running that business, members of the Salafist Sunni militia attempted to recruit him. It was claimed that militants came a second time, threatening to kill the applicant and kidnap his children (CB 95 at [12] to [17]). A month later members of a different Sunni militia, Fatah Al Islam, came to the applicant’s place of business and told him that he needed to leave his shop and come fight the Alawites. The applicant claims that when he refused, one of the militants stabbed him and said that, next time, they would kill him (CB 95 to 96 at [18] to [20]).

    [1] Albeit each of the parties’ Counsel appear to have misinterpreted the nature of the business: see [7] of the applicant’s written submission and the hearing Transcript at T9.5, contrasted to CB73 at Q84 and the 2016 Statutory Declaration at [13]

13. The Authority noted these past claims at [6] of its decision (CB 235 to 236) and did not accept the applicant was the victim of forced recruitment by either Fatah Al Islam or a Salafist group (CB 238 at [19]) because it found he had no profile which would have led to his forced recruitment by militias given the presence of other, willing volunteers (CB 238 at [17]).   

14. The first respondent submitted that the applicant’s claim regarding his being a young Sunni businessman was in fact considered because it was fundamentally linked to his claimed fear of harm in relation to sectarian violence in Lebanon.  On that basis, the first respondent says that consideration of this claim was subsumed by the Authority’s other findings, in particular that:

    (a)the Authority knew that the applicant had a business, because at [14] it made reference to the shop (CB 237);

    (b)the stabbing incident had nothing to do with the Sunni militia (CB 238 at [18]);

    (c)the applicant did not have a profile which would identify him as a potential recruit for extremist or militia organisations or that a person with the applicant’s profile would attract the level of interest claimed by the applicant (CB 238 at [17]);

    (d)country information from DFAT indicated that Sunni Muslims in most areas of Lebanon face a low risk of harm unless they are actively involved in fighting (CB 238 to 239 at [20]); and

    (e)considering that country information, the Authority found that there was no more than a remote possibility that the applicant would be harmed because of sectarian or extremist violence in Lebanon and did not face a real chance of harm due to his ethnicity, religion or any sectarian or generalised violence on return to Lebanon (CB 238 to 239 at [20] to [25]).

15. I reject those submissions.  It is open to infer, and I do, that the Authority failed to consider the applicant’s claim to fear harm as a small business owner who had refused to align himself with the militias, for these reasons:

    (a)the Authority did not refer to the claim in its reasons;

    (b)at [17] of the reasons for decision, the Authority found that the applicant had no profile which would result in him being forcibly recruited.  This was cast as being by reference to his military training as a potential reason as to why he was a target of recruitment.  The applicant submits, and I accept, that this was never part of the applicant’s protection claims; 

    (c)if the Authority had considered the claimed profile of a young Sunni businessperson,  then it is reasonable to expect that there would be some reference to it in [17], where the Authority was considering the applicant’s profile;

    (d)even if  not, then at the very least, it would then have warranted reference in the summary paragraph at [21] upon which the first respondent relies.  At [20] to [21] the Authority focused on the applicant’s risk of harm due to the sectarian conflict in the foreseeable future.  However, as the applicant contends by ground 2, he had advanced a claim to fear harm as a businessman in a particular city in Lebanon and nowhere in [20] to [21] was that considered.  The Authority did not refer to the applicant’s potential risk if he returned to that city to continue his business.  Rather, the Authority’s findings related to his home village (being that it was not perceived as anti-Syrian ([20]) and the applicant had given evidence that his village was calm and safe ([21]); and

    (e)I am not satisfied that the general, cumulative conclusion paragraph constituted by [21] of the Authority’s reasons, read beneficially and in context (see XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ at [27]), is sufficiently expressed such that the Court can be satisfied the applicant’s very specific claim was subsumed within it.

16. To the extent that the first respondent submitted that the Authority was aware of the businessman claim because it referred to the shop, this is insufficient to establish that the claim as made, was properly considered. The Authority generally acknowledging the existence of the shop is not a consideration of a claim that being the owner/operator of a business himself created a risk of harm to the applicant. Such risk needed to be assessed as against the s 36(2) criteria of the Act.

17. To the extent that the first respondent also sought to construe the applicant’s claims as relating only to past harm (namely that the applicant had previously defied the militias by refusing their demand to leave the business and fight), this misconstrues and limits the claim as it arose.  That was certainly one aspect to the applicant’s claims as to what had occurred to him in Lebanon.  However, the claim as it squarely arose on the materials was that if he was returned to Lebanon, he would go back to work.  He would work in the same business he had previously because this is the only employment he had ever had (and how he subsisted).  It is sufficiently clear, including by reference to AYY17 (supra) and NABE (supra) that there was a further aspect to this claim, namely that the applicant would be targeted because he was a young, Sunni business person, who runs a business absence allegiance to the militias.  This was a claim that by running a business, and not sharing and acceding to the militia/s’ views, he was at risk.  

18. As such, merely referencing that the applicant worked in the shop does not satisfactorily establish that the Authority understood, much less considered, the applicant’s claim as raised in this context, that having a business and being young made him a target for recruitment.  The Authority’s reference to the unlikelihood of the applicant being seen as a good candidate for recruitment does nothing to salvage this absence of consideration. 

19. Accordingly, I am satisfied that the Authority failed to consider the applicant’s claim to be a person to whom Australia has protection obligations due to his fear of serious or significant harm as a young Sunni businessperson with no allegiance to Sunni Militias in the places claimed.

20. I am also satisfied that the applicant has established that this error was material, separate to the error found in respect of ground 1.  Applying a counterfactual, had the Authority considered the claim regarding the applicant’s profile as a young Sunni businessman, then it may have been satisfied that the applicant had a profile that put him at risk of forced recruitment or harm from militias. 

21. In addition, I accept the applicant’s submission on materiality that had the Authority considered the businessman claim, it may also have accepted the applicant’s claims to have been targeted for forced recruitment in the past if it had considered whether his profile as a public young businessman placed him at risk of forced recruitment.

    Conclusion

22. The applicant has succeeded in establishing two separate errors on the part of the Authority, and that each is material such that had it not been made, there was a realistic prospect that the Authority might have reached a different decision.  Writs must issue and I will make orders to that effect.

23. I will hear the parties as to costs.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       11 May 2023