Fakhr, Edmond v Minister for Immigration and Multicultural Affairs

[1997] FCA 1144

FEDERAL COURT OF AUSTRALIA

MIGRATION - judicial review - whether the respondent incorrectly interpreted the applicable law or incorrectly applied the law - whether the respondent did not act according to the substantial merits of the case - whether there was no evidence or other material to justify the making of the decision.

Migration Act 1958 - s 476(1)(a), s 476(1)(e), s 476(4)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, referred to
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259,
referred to
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, referred to
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, applied

EDMOND FAKHR v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
NG 29 OF 1997

LEHANE J
SYDNEY
31 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 29 of  1996

BETWEEN:	EDMOND FAKHR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		LEHANE J
DATE OF ORDER:		31 OCTOBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 29 of 1996

BETWEEN:	EDMOND FAKHR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	LEHANE J
DATE:	31 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant seeks, under s 476(1) of the Migration Act 1958, review of a decision of the Refugee Review Tribunal (the Tribunal). The decision of the Tribunal, made on
19 December 1996, was that the Tribunal was not satisfied that the applicant was a refugee; it affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The grounds of the application to the Court, filed on 14 January 1997, rely on s 476(1)(a), (e) and (g) of the Migration Act and are stated as follows:

1.The Respondent erred in law in incorrectly interpreting the applicable law, or incorrectly applying the law to the facts as found, in that the Respondent failed to give proper, genuine and realistic consideration to the merits of the case pursuant to section 476 (1) (e) and (g).

2.Procedures that were required by the Migration Act to be observed in connection with the making of the decision were not observed, in that the Respondent did not act according to substantial justice and the merits of the case as required by Section 420 (2) (b) of the Migration Act 1958, in that the Respondent failed to give proper , genuine and realistic consideration to the merits of the case.

3.There was no evidence or other material to justify the making of the decision as it failed to take into proper consideration the facts that the applicant is a member of the Lebanese Forces, worked as a body guard to the leaders of the Lebanese Forces, tortured, harassed, detained and injured.

There is an immediate difficulty, in addition to the way it is framed, with the “no evidence or other material” ground (s 476(1)(g)): it is that although directions were made for the filing and service of affidavits, neither party filed affidavits or sought to tender any record of the evidence or any other material which was before the Tribunal.  The only material before me, accordingly, is the decision and the Tribunal’s reasons.

Outline of facts

The facts as found by the Tribunal included the following.  The applicant is a national of Lebanon.  He was born in Lebanon in 1966.  He is a carpenter and cabinetmaker and gave evidence that he was employed in Lebanon from 1982 to April 1993, shortly before he left for Australia.

The applicant is a Maronite Christian and joined the organisation known as the Lebanese Forces (apparently a Christian militia) in 1989: he had previously had some association with that organisation.  He was from 1989 until late 1991 a member of an “intelligence” or “intervention” unit of the Lebanese Forces and, in that capacity, acted as a bodyguard for leaders of the organisation.

In November 1991 the applicant was detained at a Lebanese Army checkpoint.  He was held for some hours before his release and, he claimed, was beaten.  By means of documents in his possession the military authorities discovered his Lebanese Forces “codename”, his position at the Lebanese Forces headquarters and also his real identity.  He was not, after that episode, “subject to adverse attention” by security authorities in Lebanon; he was granted a passport in December 1992 (he then obtained a visitor’s visa from the Australian authorities in Damascus) and he was permitted to leave Lebanon for Australia (passing through a security check at Beirut airport) in May 1993.

Since the applicant’s departure from Lebanon, some twelve prominent leaders of the Lebanese Forces have been charged with, and in some cases convicted of, serious crimes including the bombing of a church and murder.  At least one of those charged was in Australia at the time of the events to which charges against him relate.  Those charged and convicted include some for whom the applicant had acted as bodyguard.

The applicant’s brother, Mr Emile Fakhr, visited Lebanon in 1996.  (Mr Emile Fakhr came to Australia in 1978.  He is an Australian citizen; the applicant’s mother and six of his siblings live in Australia; he has five siblings living in Lebanon).  On his visit in 1996, Mr Emile Fakhr was visited by two or three men who identified themselves as members of the Lebanese Intelligence Service and asked him if he was “Edmond” (the applicant’s name).  They asked him for proof of his identity, and he showed them his Australian passport.

Tribunal’s conclusion

It will be necessary to return to some aspects of the Tribunal’s findings and of its discussion of some of the material before it.  It was, however, substantially on the basis of the matters to which I have referred that the applicant claimed to be “a non-citizen in Australia to whom Australia has protection obligations under the Refugee’s Convention as amended by the Refugee’s Protocol” (Migration Act s 36(2); Migration Regulations, Sch 2 Cl 866.221). The reference is to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (Migration Act s 5(1)). The Tribunal accepted that the applicant had a genuine fear of being persecuted because of his political opinion, that he was outside the country of his nationality (Lebanon) and (at least by inference) that he was unwilling, owing to such fear, to avail himself of the protection of Lebanon. The question, therefore, was whether the applicant’s fear was well-founded: if, but only if, it was, the applicant fell within the definition of “refugee” in Article 1 of the Refugees Convention. The Tribunal concluded that it was not satisfied that the applicant had a real chance of suffering persecution for his political opinion, or other Convention reason, if he returned to Lebanon: thus, on the authorities, he did not have a well-founded fear of persecution for one of the Convention reasons.

Applicant’s submissions and consideration of submissions

The applicant does not dispute that the Tribunal correctly stated the law which it was required to apply.  Certainly in my view the Tribunal’s statement of the law is not open to substantial criticism: the Tribunal demonstrated a correct understanding of the meaning of “well-founded fear” and “persecution” as elucidated particularly in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. The Tribunal’s reasons demonstrate also a correct understanding of the time at which, and in relation to which, the applicant’s circumstances were to be considered. It may be added that there is nothing in the more recent decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 which casts any doubt on the correctness of the Tribunal’s statement of the applicable law.

In reaching its conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason, the Tribunal considered separately the situation in May 1993, when the applicant left Lebanon, and subsequent events to the extent that it was suggested that they provided a basis for the applicant’s fear of persecution.  It is convenient, in assessing the grounds of the applicant’s attack on the Tribunal’s reasons, to take them in those two stages.

In relation to the earlier stage, the applicant’s complaints concerned the Tribunal’s refusal to accept that the applicant remained in active service with the Lebanese Forces after the end of 1991, its inference that his release from detention by the army in November 1991 indicated a lack of interest in the applicant (and, particularly, that he was not targeted for persecution) and findings made by the Tribunal about the existence, in Lebanon, of “an extensive security service which has targeted dissidents for adverse attention” and inferences drawn by the Tribunal from those findings about the basis of the applicant’s fear.

As to the first of those matters, the applicant relied particularly on observations by the Tribunal about a “medical card” issued by the Lebanese Forces which was in the possession of the applicant when he was detained by the army in November 1991.  The card was dated August 1991 and was expressed to be valid for one month.  The Tribunal said, about that:

If the Applicant remained with the LF after the expiry of the medical card, the Tribunal would expect the Applicant to be issued with a more recent medical card.

The applicant sought to characterise this as mere speculation.  Certainly it may have been of little weight though, if unexplained, hardly irrelevant.  In any event, the Tribunal proceeded to make it clear that the principal basis on which it did not accept that the applicant remained in active service with the Lebanese Forces after the end of 1991 was inconsistencies in the applicant’s evidence concerning that period; it also pointed to the circumstance that the only corroborative evidence of the applicant’s activities with the Lebanese Forces related to a period ending in late 1990.  It cannot be said that there is no basis in the material before the Tribunal for its findings of fact on those matters; and, plainly, the questions were of fact, matters for the Tribunal not susceptible of review by the Court.  Equally, there is in my view no substance in the second matter: the applicant’s release in November 1991, after detention lasting some hours, might properly be taken as an “indication” that he was not targeted for persecution for his membership of the Lebanese Forces (a fact which became known to the army authorities during his detention) particularly when coupled, as the Tribunal proceeds to couple it, with the circumstances that the applicant was not thereafter subject to adverse attention by security authorities, that he was granted a passport in December 1992 and that he left Lebanon without difficulty in 1993.  Again, what is complained of is a finding of fact open to the Tribunal and not susceptible of review.  The same is true of the third matter.  It was open to the Tribunal to hold, on material, to which it referred in its decision, that there were extensive security forces, both Syrian and those of the Lebanese government, operating in Lebanon and that, in particular, tight security was maintained at the Beirut Airport.

In relation to the second period, the complaints related to the way in which the Tribunal had dealt with events surrounding the charging and conviction of leaders of the Lebanese Forces and the possible consequences for a person such as the applicant who, as a bodyguard, had been closely associated with those leaders.  Particularly, complaint was made of the way in which the Tribunal dealt with evidence given by Mr Obeid, one of the leaders concerned (now resident in Australia), and its characterisation of the applicant as an “ordinary” member of the Lebanese Forces.  The Tribunal dealt with the evidence of Mr Obeid as follows:

Although the witness, Obeid, alleged that bodyguards revealed information against the LF leaders in order for the charges against the leaders of the LF to be sustained in prosecutions since 1994 and that this would place bodyguards at risk of persecution, he had no specific evidence that LF bodyguards had given such evidence against the LF leaders.  The Tribunal regards this allegation as unfounded speculation not supported by independent sources.  Whilst the Tribunal accepts that the Applicant did bodyguard duties for prominent LF leaders as a member of the LF, it is not satisfied that he would be targeted by the state authorities for persecution or for the purposes of prosecuting LF leaders if he returned to Lebanon.

The Tribunal then referred to the applicant’s denials that he was personally involved in any serious crimes and was not aware of the leaders, for whom he was a bodyguard, being involved in the crimes with which they have since been charged.  The Tribunal proceeded to refer to its earlier finding that the applicant was not actively involved in security duty for the Lebanese Forces after the end of 1991.

Once again, in my view, the Tribunal’s finding is not open to attack.  Quite apart from the limited nature of judicial review under the Migration Act, there seems to me nothing particularly surprising in a characterisation as “unfounded speculation” of assertions that bodyguards might be required to give evidence in circumstances where Lebanese courts had, on the evidence before the Tribunal, dealt with a number of relevant cases and there was no evidence placed before the Tribunal (including by one of the leaders charged, though in his absence) that any such evidence had actually been given.  The other matters to which the Tribunal refers (again leaving to one side for present purposes the statutory limitations on judicial review) are plainly matters which it was entitled to take into account.

The reference to “ordinary members” arose in this way.  The Tribunal, in considering the effect it should give to evidence about the charging and trial of “some 12 prominent leaders of the LF” said this:

In view of the magnitude of the membership of the LF - the Applicant’s evidence was that there were some 43,000 LF militia members in 1989-1990 and there were about 200 LF members in the units stationed at the LF command centres in Beirut and Jounieh to guard the leaders - it is notable that ordinary members of the LF had not been targeted for punishment for crimes.  Rather the charges against LF members have been selective with the prominent leaders of the LF being targeted.  Further there is no evidence of members of the 200 strong LF security unit being the targets of punishment or persecution.

The Tribunal explicitly found that the applicant was a bodyguard and a member of the security unit: there is no doubt that it considered him as being among the “200 strong”.  There is a further reference to “ordinary members and supporters” of the Lebanese Forces: they are said, in a DFAT cable quoted by the Tribunal, not to be at risk of persecution.  But to say that the Tribunal took into account the position of ordinary members and supporters does not advance the applicant’s argument: it was not irrelevant.  The Tribunal took into account also the applicant’s position as a bodyguard, and then the distinction between his position and that of other ordinary members.

Finally, the applicant attacked the Tribunal’s findings about the question addressed to the applicant’s brother, by members of the security forces, when the brother visited Lebanon in 1996.  The Tribunal dealt with that as follows:

The Tribunal does not accept that it is reasonable to presume that there was a negative intent in the inquiry.  As the reason for the inquiry is unknown, the Tribunal does not accept this inquiry indicates that the Lebanese authorities have targeted the Applicant for persecution for his LF activities.

No doubt various possible inferences could be drawn from that event, and no doubt equally the inference drawn by a decision-maker may depend to a large extent on its view of other relevant evidence.  But to say that is to demonstrate, once again, that the applicant’s complaint relates to findings of fact, peculiarly a matter for the Tribunal and plainly not a matter for the Court.

In reaching its conclusions about a number of the matters to which I have referred - particularly the character and size of the security forces operating in Lebanon and activities in which the Lebanese forces were involved and the way in which its leaders had been dealt with and other members apparently not dealt with - the Tribunal referred in some detail, as it customarily does, to press and other reports and departmental cables. That fact, taken with matters to which I have already referred, demonstrates that the applicant has not made out the ground in s 476(1)(g) that there was no evidence or other material to justify the making of the Tribunal’s decision, as that ground is elucidated in s 476(4). The problem faced by the applicant in relation to the ground in s 476(1)(e) is that, given that the Tribunal correctly stated the applicable law, the applicant’s complaint is not with the way in which the Tribunal applied that law to the facts which it found. The complaint relates to the findings themselves: but that is a matter outside the scope of para (e) and, subject to the possible application of
s 476(1)(a), outside the scope of judicial review under the Migration Act.  This is not a case where, by comparing the result obtained with the facts found, the Court can conclude that, despite the Tribunal’s correct statement of the law, it must necessarily have applied a wrong legal standard: see Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 at 627 per Davies J. As for the ground in s 467(1)(a), I have already explained why, in my view, the particular conclusions of fact challenged by the applicant were open to the Tribunal: certainly in my view there is no basis on which they could be said to involve Wednesbury unreasonableness; and no other basis was suggested, nor can I see any, for a conclusion that the Tribunal did not, in considering the applicant’s claims, observe the requirements of s 420(1) or (2)(b): in other words, I can see nothing in the principles enunciated by the majority in Eshetu which assists the applicant.

For those reasons the application is dismissed.  There is no obvious reason why costs should not follow the event but, as this is a matter on which I have heard no argument (and the Minister in his submissions did not explicitly seek an order for costs), the parties may make submissions about costs following the delivery of these reasons.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated:             31 October 1997

Solicitor for the Applicant:	Westside Lawyers
Counsel for the Respondent:	Ms A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 October 1997
Date of Judgment:	31 October 1997