FJC18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 245

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FJC18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 245   

File number(s):	MLG 3080 of 2018
Judgment of:	JUDGE VASTA
Date of judgment:	27 February 2023
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	42
Date of last submission/s:	27 February 2023
Date of hearing:	27 February 2023
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Ms Gollan
Solicitor for the Respondents:	Mills Oakley Lawyers

ORDERS

MLG 3080 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJC18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	27 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application filed on 12 October 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex tempore)

JUDGE VASTA

1. On 10 September 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, FJC18, a protection visa.  On 12 October 2018, the Applicant asked this Court to review that decision. 

2. The matter eventually became part of the national migration docket and was given to me to decide today.  This means that the Applicant has been waiting for well over four years for this Court to make a decision on his application.  On behalf of the Court, I apologise to FJC18 for the inordinate delay in finalising his matter.  This is part of the reason why I am giving my decision today.

3. The background to the matter is that the Applicant is a citizen of Lebanon.  According to the Applicant, he had operated a construction business in Lebanon successfully for 25 years up to 2013. 

4. He said that he had been working at a site near the border between Lebanon and Syria.  He was approached by a group of armed men who identified themselves as Syrian insurgents.  He said that they forced him to make a road across the Syrian border for them.

5. The Applicant complied with what they asked, but after doing this, the armed men wanted more.  They wanted him to accompany them over the border to Syria and continue that work. 

6. The Applicant made excuses to put the men off, and then he returned home and discussed the matter with his brother.  He said that he and his brother agreed that he should leave the country and seek protection in Australia. 

7. He said that after he departed, the armed men called his phone number and visited his home and threatened his family. 

8. He said that he cannot relocate anywhere in Lebanon, because these men have a strong intelligence network, and they will find him anywhere.

9. The matter had been determined by a delegate for the Minister. As the Applicant was an unlawful maritime arrival, his matter was given to the IAA.  The IAA had before them all the statements that the Applicant had made when he first came to Australia.  They also had his written statements when he made his application for the protection visa.  They had the interview that the Applicant had with the delegate of the Minister.  They also had all of the material that the Applicant had given to the Minister and the department.  They also had the independent country information.  Upon all this material, the IAA set about assessing the claims of the Applicant.

10. The IAA found that there were many inconsistencies with what the Applicant had said on the three occasions he had spoken to immigration officials. 

11. Examples of these inconsistencies include the following.  In his entry interview conducted on 20 June 2013, the Applicant made no mention of any Syrian insurgents.  The Applicant’s explanation was that either, or both, the insurgents, or the authorities, would find out, and it would cause issues for his family.  However, his claims were that the Syrian insurgents already knew where his family lived, and they had already threatened them directly.  The Applicant’s claims were that the Syrian insurgents had been told that the Applicant had left the country.  The IAA said that it was not clear why the Applicant would think that mentioning this to Australian officials when he first came to the country would bring further harm to his family.

12. Another example was the accounts the Applicant gave of his life circumstances at the time the insurgents came into his life.  In his written claims, the Applicant said he had a good life living in Lebanon.  In the interview, the Applicant confirmed that he was not under any financial pressure at the time.  But, later in the interview, when he was talking about taking the job that involved clearing a path for the insurgents, he said that he accepted that job because he was in “dire need”. 

13. Another inconsistency was whether the insurgents came to his house on more than one occasion.  The Applicant, in his interview, confirmed that they did come to his house on a number of occasions, but then, later in the interview, he said that the insurgents never actually came to his house to solicit his assistance.

14. In his interview, the Applicant spoke of his house being fired upon. This incident was not mentioned in the written statement.  The Applicant gave a reason that he did not mention it, which was that he did not think it was important. 

15. There were other aspects that the IAA looked upon regarding the Applicant’s claims.  The IAA said that the inconsistencies, the implausibility and the omissions in his various accounts, meant that his tale had very little credibility in it. 

16. The representative of the Applicant provided the delegate, and the IAA, with a letter from a psychologist that indicated that the Applicant’s memory has been affected by these events.  The IAA said that the letter seemed to be more of a recounting of claims that the Applicant has made, rather than any clinical opinion. The IAA pointed out that the issue was not about whether the Applicant could recall events, but rather, that the accounts of those events that he was giving conflicted with each other. The IAA said that they were satisfied that these conflicts did not stem from the Applicant’s recall but from the fact that the Applicant had fabricated this claim and was not recalling actual life events. 

17. The IAA said that they did not accept that the Applicant was forced to work for Syrian insurgents or that they came to his house or that they fired upon it or that they made any other threat. 

18. The IAA looked at whether there was any threat of serious harm for the Applicant if he were returned to Lebanon because he was a failed asylum seeker.  The IAA looked at reports from the Department of Foreign Affairs and Trade.  There was nothing from any of that information that would suggest that the Applicant has a real chance of harm as a returning asylum seeker.

19. The IAA looked at the general security situation.  The IAA looked at a great deal of country information.  The IAA came to the conclusion that they were not satisfied that the Applicant faces a real chance of any harm due to the security situation in Lebanon. 

20. For those reasons, the IAA concluded that the Applicant did not meet the requirements of the definition of a refugee. 

21. The IAA then looked at the complementary protection criteria.  The IAA concluded that the Applicant had never been targeted by Syrian insurgents or any other anti-government elements in Lebanon.  The IAA said that they concluded that the Applicant did not face a real chance of harm on that basis or on account of the security environment in Lebanon or because he was a returning asylum seeker.

22. The IAA concluded that there were no substantial grounds for believing that as a consequence of being returned from Australia to Lebanon, that there was a real risk that the Applicant would suffer significant harm. 

23. The IAA found that the Applicant did not meet the complementary protection criteria. 

24. Having come to all of those conclusions, the IAA affirmed the decision not to give the Applicant a protection visa. 

25. There were three grounds of application, and I will deal with them seriatim. 

26. The first ground is that

    1. The Immigration Assessment Authority (‘The IAA’) in its capacity to review, failed to engage intelligibly with the material before it, constituting jurisdictional error…

    a.The IAA at [15] referred to the psychologist’s letter indicating that the applicant’s ability to recall events was affected.

    b.The IAA interpreted this report as a “recounting of claims” rather than a ‘clinical opinion’, therefore dismissed any weight of the psychologist letter.

    c.The IAA failed to take into consideration the psychologist’s letter in explaining the applicant’s discrepancies, inconsistencies or conflicting accounts at interview.

    d.The IAA in its decision, did not engage intelligibly with material before it, in the sense that the content of the report was misconstrued, and a professional opinion was not taken into consideration throughout the assessment. 

27. That letter from the psychologist is reproduced at CB 130. When one looks at that letter, it is difficult to disagree with what the IAA has said; that is, that the psychologist’s letter was a recounting of claims that the Applicant had made to the psychologist.  There were no independent clinical tests administered to the Applicant, and there was no true clinical opinion given.

28. These conclusions about the psychologist’s letter were definitely open to the IAA, as was the conclusion that the problem with the Applicant’s account was not a lack of memory but the conflicting nature of his versions. 

29. The letter from the psychologist was simply a piece of evidence upon which the IAA was entitled to give an amount of weight as it saw fit.  It could not be said that the IAA did not engage intelligibly with that letter.  It cannot be said that the report was misconstrued or that professional opinion was not taken into consideration. 

30. In reality, this ground is simply a disagreement with the conclusion that the IAA came to regarding the letter.  As such, it does not illustrate a jurisdictional error, and therefore the ground fails.

31. Ground Two  is that:

    2. The Immigration Assessment Authority (‘The IAA’) in its capacity to review, failed to take into consideration a relevant matter, for the purpose of a valid protection visa assessment.

    a. The IAA at [19] of the decision stated that the applicant’s absence from Lebanon for 5 years would display difficulty in constructing a fear of harm from Syrian Insurgents.

    b. The IAA at [19] did not take into consideration country information providing that Syrian Insurgents continue to operate within Lebanon and whether the applicant was at risk of harm due to this operation.

    c. Therefore the IAA failed to take into a relevant consideration, constituting jurisdictional error.

32. As was illustrated in my recitation of the reasons of the IAA, the IAA did give proper consideration to the security situation and looked at relevant country information.  No jurisdictional error is illustrated by this ground, and it fails. 

33. Ground three is that

    3. The Immigration Assessment Authority (‘The IAA’) in its capacity to review, failed to take into consideration a relevant matter, for the purpose of a valid protection visa assessment…

    a. The IAA at [21] did not accept the applicant was forced to work for Syrian insurgents.

    b. The IAA at [21] did not provide an assessment as to whether he actually worked for Syrian insurgents.

    c. The IAA relied on inconsistencies in the applicant’s statements to override the basis of the applicant’s claims that he feared harm from Syrian Insurgents based on work done for them.

    d. The IAA in its decision failed to assess an integer of the applicant’s claim being that his fear arose from his previous work with Syrian Insurgents.

    e. Therefore the IAA failed to take into a relevant consideration, constituting a jurisdictional error.

34. What was claimed, by this ground, was that the IAA did not accept that the Applicant was forced to work for Syrian insurgents.  This claim was made on the basis that the IAA did not ever say that the Applicant did not work for the Syrian insurgents, just that he was not forced to work for them. It was claimed that there was a possibility that the Applicant actually worked for the Syrian insurgents of his own free will because he was paid lots of money to do so.  Therefore, the IAA failed to assess a claim of well-founded fear arising simply from the fact that the applicant had previously worked with Syrian insurgents. 

35. To my mind, such a claim simply does not arise on what evidence the Applicant put before the Minister and the IAA.  The only reason he has ever said that he worked for the insurgents was because they were armed and they threatened to harm him or his family if he did not work for them.

36. As this “submitted” claim did not arise on the evidence, it seems to me that it cannot illustrate a jurisdictional error.  Therefore, ground three also fails.

37. The Applicant appeared before me today unrepresented but aided by an interpreter.  Despite my explaining to him the role of the Court in looking for error, the Applicant insisted upon telling me the whole story as to how and why he left Lebanon. 

38. Even though he spoke for over 40 minutes, I did not stop him from recounting that particular tale.  This is because the Applicant needed to speak and to explain where it was that he was coming from, and this was the only way in which he could do it.  He gave me a very impassioned plea that the system had treated him as a number and not as a human being. 

39. He spoke very passionately about the fact that he has established himself in Australia and that he has a son and daughter here and that his son has three children.  He said that he pays tax here and that he has a business here.  He wanted the Court to look at his case mercifully and to understand that, if he has to go back to Lebanon, he will be killed.

40. While the Court has great sympathy for the Applicant, as I told him at the beginning of the hearing, I must look for jurisdictional error only.  The matters, of which the Applicant spoke to me, were only matters that could engender sympathy in me rather than actual legal reasons as to why there was a jurisdictional error. 

41. I have looked thoroughly at the decision of the IAA, and I cannot find any jurisdictional error.  In treating the Applicant as a human being and equal before the law, I must apply the law in this circumstance. 

42. As there has been no jurisdictional error illustrated, I must dismiss this application with costs fixed in the sum of $5800.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       29 March 2023