FQQ18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 877

Federal Circuit and Family Court of Australia

(DIVISION 2)

FQQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 877

File number(s):

MLG 3213 of 2018

Judgment of:

JUDGE SYMONS

Date of judgment:

26 October 2022

Catchwords:

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – grounds of application lacking in particulars and not further explained at hearing – Immigration Assessment Authority dealt comprehensively with the applicant’s claims for protection - no merit in the grounds advanced – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 5J, 65, 473CC, 473DA, 473DB, 473DC,473GA, 473GB,

Cases cited:

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347

SZRSN v Minister for Immigration and Citizenship [2013] FCA 751

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of last submission/s:

18 October 2022

Date of hearing:

18 October 2022

Place:

Melbourne

Applicant:

In person

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

MLG 3213 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FQQ18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE symons
DATE OF ORDER:	26 October 2022

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, and Multicultural Affairs”.

2.The application filed 25 October 2018 is dismissed.

3.The applicant pay the first respondent’s costs in the fixed amount of $7,853.

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 SYMONS:

INTRODUCTION

1. By an application filed on 25 October 2018, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 21 September 2018.  The Authority affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the applicant a Safe Haven Enterprise visa (“the visa”).  The Minister opposes the application.  The Authority enters a submitting appearance and has not participated in the proceeding.

   background

2. The applicant is a citizen of Lebanon who arrived in Australia on 6 May 2013 as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) (“the Act”)

3. On 19 June 2013 the applicant was interviewed by an officer of the Department (CB 1-23).

4. The applicant made an application for the visa on 24 January 2017 with assistance from a registered migration agent.  In an accompanying statement dated 29 August 2016, the applicant recorded what were described as “a summary of my claims for protection” (CB 67-69).

5. The applicant claimed that he was an Arabic and Sunni Muslim who had lived all of his life (he was born in 1991) in Bait Younness Village, Akkar District in North Lebanon, with his parents and his siblings.  The applicant described the situation in his home area as characterised by tensions between the different religious groups which increased over time.  The applicant claimed that between 2008 and 2012 he would travel regularly by road from his home to first Tripoli and then on to Beirut where he worked as a waiter.  The applicant explained that it was extremely dangerous to pass through Beirut because of the fighting between Shia and Sunni militia groups there.  The applicant said that on occasion, the militia groups would shoot at him.

6. The applicant claimed that he became a target in Beirut because of his Sunni ethnicity and that even his fellow workers at the restaurant began to be antagonistic towards him.  There was no work in the village and it was too dangerous to travel.  According to the applicant, the only option available to him was to join the army or join a militia group, both of which would likely cost him his life.  The applicant claimed that militia men from inside and outside his area had approached him on different occasions to fight in Syria as a mercenary, however the applicant had refused.  On the urging of his mother, the applicant instead fled Lebanon and travelled to Australia.

7. The applicant claimed that he apprehended harm, including death, if he was to return to Lebanon.  This fear reflected the deteriorating security situation in Tripoli which was a result of sectarian violence and the Syrian conflict.  The applicant feared harm from the roaming militia and organised criminal gangs.  The applicant also claimed that he would be subjected to punitive action because, while in Australia, he had obtained tattoos on both arms and in circumstances where tattoos, according to Islam, are strictly forbidden.

8. On 8 March 2017, the applicant provided the Department with a Notification of changes in circumstances (Form 1022) which recorded that the applicant (who was previously unmarried and single) had been in a marital relationship with Ms GF since 19 December 2016 (CB 88-90).

9. On 30 June 2017, the Department wrote to the applicant requesting that he attend an interview on 21 July 2017 to discuss his visa application (CB 91-93).  The interview was subsequently rescheduled to 28 July 2017 (CB 97-99).

10. The applicant attended the interview with the assistance of his migration agent, and on 4 August 2017,  the agent provided post-interview submissions to the Department (CB 105-117).  In this document, the essential and significant reason for the applicant’s fear of persecution was described as arising from his:

    Religion as a Sunni Muslim

    ·The applicant risks being targeted by, and asked to fight for, militant Sunni groups;

    ·The applicant risks being targeted and harmed by militant Shia groups.

    Imputed Political Opinion

    ·As being in opposition to the Assad regime in Syria by militant Shia groups, which would be imputed to the applicant by virtue of his Sunni religion.

    Membership of a particular social group

    ·Young and able-bodied Sunni males at risk of forced recruitment from extremist Sunni groups to fight in the conflict in Syria.

11. The submissions identified the feared persecutors as Sunni extremist groups operating in Lebanon such as the Salafist movement, the Future Party, Al-Nusrah and IS, and Shia militant groups including Hezbollah.  The submission was made that the applicant faced a real chance of serious harm in all areas of Lebanon and that there was no effective protection available to him.  It was also said (responsive to matters raised at the interview) that relocation to Beirut by the applicant would be neither reasonable nor practicable and the trauma that the applicant would invariably experience if he was returned to Lebanon and separated from his Australian citizen wife was identified as a factor that would engage Australia’s complementary protection obligations.

12. On 11 April 2018, a delegate of the Minister refused to grant the applicant the visa (CB 126-142) and the matter was referred to the Authority on 16 April 2018 (CB 143-144).

13. On 5 May 2018, the applicant’s representative provided written submissions to the Authority which were responsive to the delegate’s findings and the reasons for the rejection of the applicant’s protection claims (CB 153- 158).

14. On 21 September 2018, the Authority affirmed the decision of the delegate to refuse to grant the applicant the visa (CB 166-177).

    the decision of the authority

15. The Authority did not consider that the applicant would face a real chance of serious or significant harm by reason of the security situation in Lebanon including the prospect of forced recruitment,[1] his Sunni religion,[2] his status as a returning asylum seeker,[3] an inability to subsist economically,[4] his possession of tattoos,[5] or by reason of psychological harm relating to separation from his Australian wife.[6]

    [1] CB 169 [16]-[17].

    [2] CB 170 [22].

    [3] CB 171 [28].

    [4] CB 171 [33].

    [5] CB 172[40].

    [6] CB 173 [45].

16. In recording these findings the Authority took into account the submissions from the applicant’s representative, which it regarded as argument rather than “new information”[7] and country information which had been referred to in the submissions.

    [7] CB 167 [4].

17. Based on what the Authority described as an inability to clearly articulate instances in which he had personally been targeted or suffered harm as a result of the security situation in Lebanon and a tension between his account of conflict between Sunnis and Alawites and country information which referred to the introduction of a security plan, as well as country information that assessed the overall security situation in Lebanon to be largely stable, albeit unpredictable, the Authority was not satisfied that the applicant faced a real chance of harm due to the security situation in Lebanon.  The Authority also noted that the applicant had not indicated that any members of his family had suffered harm in Lebanon and that most of them continued to reside in Beit Youness.[8]

    [8] CB 168-169.

18. Further, the Authority rejected the applicant’s claim to apprehend harm as a result of forcible recruitment on the basis that the applicant had not indicated that any adverse consequence had flowed from his refusal to fight as a mercenary in Syria and had not explained how his brothers, who had remained in Lebanon and who were of conscription age, had not been approached for recruitment.  The Authority also referred to country information and noted that it did not support the view that the Lebanese military attempted to forcibly recruit Lebanese citizens.[9]

    [9] Ibid.

19. The Authority was not satisfied that the applicant faced a real chance of harm due to his Sunni religion.  This finding reflected country information to the effect that the Northern governorate, which took in Tripoli and the applicant’s home province, was majority Sunni and that Sunnis in this area were not discriminated against and neither was there systemic discrimination against Sunnis elsewhere in Lebanon.  The Authority referred to the applicant’s claim to have suffered the antagonism of management and his fellow workers at his restaurant job but noted that despite this, the applicant had remained in this job for four years and had not developed the claim at interview.  The Authority noted further that country information identified a tradition of religious pluralism in Lebanon that involved a high degree of religious tolerance and a political and legal system generally free from religious discrimination.[10]

    [10] CB 170.

20. The Authority accepted as possible that if the applicant was returned to Lebanon he would be considered a returning asylum seeker.  However, the Authority noted that country information (including DFAT advice) did not suggest that an asylum seeker returning to Lebanon would be susceptible to any form of discrimination or violence based on this status or would attract adverse attention from the authorities or non-state actors on that account.  The Authority found that, as a citizen, the  applicant would not face any barriers to repatriation or accessing his home area or Beirut and that as there was no evidence to suggest the applicant had committed a serious (or any) crime while in Australia he would not be subject to the process that attends such people on return to Lebanon.[11]

    [11] CB 170-171.

21. The Authority noted that the applicant feared harm arising from the separation of his wife should he return to Lebanon but noted that such separation would not be for any one of the reasons mentioned in s 5J(1) of the Act.[12]

    [12] CB 171 [29].

22. The Authority determined that the applicant’s fear of suffering harm due to the prevailing economic situation and a lack of opportunities in Lebanon was not well-founded.  The Authority noted that the applicant was a young, able-bodied male who had worked for four years in the hospitality industry prior to coming to Australia and that Lebanon was classified by the World Bank as an “Upper Middle Income Country”, whose economy continued to grow.[13]

    [13] CB 171 [30]-[33].

23. The Authority was not satisfied that the applicant faced a real chance of harm in Lebanon due to the fact that he had acquired permanent tattoos.  The Authority referred to country information which indicated that tattoos were increasingly popular and had acquired mainstream status and that there was nothing in the messages that had been inscribed (including “Family is Forever”, “Patience”, “Mum”) that would make the applicant an exception to the general tolerance of tattoos indicated by the country information.  The Authority did not accept the applicant’s claim that he would be killed by his father because he had tattoos.  The applicant had produced no evidence to support the claim and it had been raised towards the end of the interview and after the delegate had put country information to the applicant that indicated the possession of a tattoo would not be problematic in Lebanon.[14]

    [14] CB 171-172.

24. On the complementary protection criterion, the Authority referred to its findings on the refugee criterion and found that the applicant did not have a real risk of suffering significant harm in Lebanon on account of the matters already dealt with.[15]

    [15] CB 173 [44].

25. The Authority acknowledged the applicant’s concerns relating to psychological harm that would result if he had to return to Lebanon without his wife. The Authority found that any harm of this nature did not satisfy the requirements of the definitions of the types of significant harm in ss 36(2A) and 5(1) of the Act and referred, in this context, to the decision of SZRSN v Minister for Immigration and Citizenship [2013] FCA 751.[16]

    [16] CB 173 [45].

    proceedings in this court

26. The application for judicial review filed on 25 October 2018 identifies the following (unparticularised) grounds:

    1.The Tribunal acted without or in excess jurisdiction, and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material.

    2.The Applicant was denied natural justice.

    3.The Tribunal failed to review and consider the Application in compliance with s 424(1) of the Migration Act.

    4.The Tribunal failed to review and consider the Application for the purposes of section 47, 65 and 414 of the Migration Act 1958.

27. On 27 July 2020, a Registrar of this Court made orders to progress this matter to final hearing. These orders included that the applicant, at least 28 days before the hearing, file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions. The applicant did not file any material responsive to these orders or indeed, any material beyond the application and original affidavit that had attached a copy of the decision of the Authority.

28. On 5 August 2020 the Minister filed a court book and on 4 October 2022 the Minister filed written submissions dealing with the pleaded grounds of review.

29. The matter came before me for final hearing on 18 October 2022.

30. On that day the applicant appeared unrepresented and was assisted by an interpreter in the Arabic (Lebanese) language.  The Minister was represented by Mr Orchard.

31. In accordance with the practice recommended by cases such as DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9], at the commencement of the hearing I invited the applicant to tell me what it was that he would like to say, in support of his application, to the effect that the Authority was wrong in its decision to affirm the decision of the delegate to refuse his visa.

32. The applicant took this opportunity to reiterate matters that went to the substance of his claims for protection and did not, despite being asked explicitly whether he had concerns about particular aspects of the Authority’s written decision, raise any matters that went to the decision under judicial review.

33. In oral submissions, at my request, the Minister’s representative identified comprehensively (but succinctly) the timeframe of procedural events, the claims made by the applicant, the basis for the rejection of these claims by the delegate and the Authority and the reasons why the Minister now said that the decision of the Authority did not involve jurisdictional error.

34. In this regard, the Minister’s submissions were developed in recognition of the fact that the applicant has been self-represented throughout his application.  In particular, although the application for review identifies grounds that are evidently formulated by reference to a decision made by the Administrative Appeals Tribunal, the Minister proceeded on the basis that the errors alleged had been transposed to the Part 7AA review framework.

35. In relation to ground one, the Minister submitted that it was “a bland assertion of error” and should be dismissed in the absence of further particulars (referring to WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60]; upheld on appeal). The applicant had not identified what “relevant material”, “wrong question” or “wrong issue” he said the Authority had failed to consider or had erroneously identified or relied upon.

36. The Minister submitted that in any case, the Authority’s decision made clear that it had considered the evidence before it (referring to [3]-[4], [9], [14]), relevant country information ([14]-[15], [25], [38]-[39]) and had considered and disposed of each of the applicant’s claims.  The Minister relied on the proposition that the Authority was not required to uncritically accept the applicant claims and did not need to possess rebutting evidence before finding that a particular assertion was not made out (referring to Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348).

37. In relation to grounds two, three and four, the Minister submitted that they could not be made out as the sections to which they referred (ss 47, 414 and 424 of the Act) were irrelevant to the Authority’s review under Part 7AA. To the extent that these grounds should instead be understood as a complaint that the Authority had breached obligations of procedural fairness, the Minister referred to s 473DA of the Act and noted that this section provided that part 7AA, Division 3 (together with ss 473GA and 473 GB) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to Authority reviews.

38. The Minister acknowledged that while the Authority was obliged, by s 473CC, to “review” the delegate’s decision under s 65, the combined effect of ss 473DA(1), 473DB(1) and 473DC(2) was that the Authority was required to conduct a review of the delegate’s decision on the papers. Further, the Authority was required to proceed “without accepting or requesting new information” and “without interviewing the referred applicant”. The Minister submitted that in this particular case, there was no requirement for the Authority to give the applicant an opportunity to provide further information, to interview the applicant and provide an opportunity for comment, or to otherwise exercise its discretion in s 473DC(3)(b) of the Act.

1. I note that when the applicant was given the opportunity the respond to these submissions which were advanced orally at the hearing and translated for him, he did not wish to make any comment.

   CONSIDERATION

2. In order to be entitled to relief by this Court, the applicant must establish that the Authority decision is affected by jurisdictional error.  The Authority will have made a jurisdictional error if it “exceeded the limits of the decision-making authority conferred by the statute in making the decision”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [29].

3. To amount to a jurisdictional error, an error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45].

4. The applicant in this case has not clearly articulated any jurisdictional error in his written application to the Court and neither was he in a position to do so when invited to make submissions orally at the final hearing.  The Court remained entirely uninformed with respect to his challenge to the Authority decision.

5. I accept that the applicant has not identified any factors that would demand the consideration of the exercise of the power in s 473DC of the Act and I have been unable to identify any characteristic or feature of the review that would have required the Authority to turn its mind to obtaining from the applicant “new information”. The applicant was represented before the Authority and his written submission and the country information to which it referred was considered by the Authority. There was a relative uniformity between the approach taken by the delegate and the Authority which produced the result that no new paradigm was interposed in the transition from delegate to Authority such that might have, in different circumstances, invited closer analysis of the exercise of this power.

6. I consider that overall the decision of the Authority involved a comprehensive and faithful record of and reconciliation of the applicant’s claims concerning the different bases upon which he apprehended harm on a return to Lebanon.  I am unable to discern error in the findings recorded or the approach adopted by the Authority in its conduct of the review.

   DISMISSAL

7. For these reasons I will order that the applicant’s application filed on 25 October 2018 be dismissed and that the applicant pay the first respondent’s costs in a fixed amount that reflects the Court scale.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

Associate:

Dated:       26 October 2022