FQV18 v Minister for Home Affairs

[2019] FCCA 858

FEDERAL CIRCUIT COURT OF AUSTRALIA

FQV18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 858

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority had regard to all of the evidence – whether the adverse findings by the Authority were logical and rational – whether the Authority complied with its statutory obligations – whether the Authority misapplied or misunderstood the correct test – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DD, 476

Applicant: FQV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3011 of 2018

Judgment of: Judge Street

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Sydney

Delivered on: 3 April 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Stamford Law

Counsel for the Respondents: Mr D Hughes

Solicitors for the Respondents: DLA Piper

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 18 March 2019.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 3 April 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3011 of 2018

FQV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 26 September 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Lebanon and his claims were assessed against that country. The applicant was found to be a Sunni Muslim and identified in his application for protection that he was born in Tabane, Tripoli. The applicant in his statement in support of his protection visa identified that he was born at Tripoli (El Tebbeneh) Lebanon. The applicant identified being married and having children currently residing in Tripoli in Lebanon. The applicant also referred to having parents and siblings continuing to reside in Tripoli in Lebanon.

3. The applicant claimed to fear harm by reason of a family conflict and that he would be targeted for revenge killing and asserted that the Lebanese security were unable to protect him and also feared harm by reason of the security situation from Hizballah. On 1 June 2018, the delegate found the applicant failed to meet the criteria for grant of a Safe Haven Enterprise Visa.

4. On 12 June 2018, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on submissions and new information which were expressly considered by the Authority in its reasons.

5. The Authority in its reason identified the background to the visa application and had regard to material given by the Secretary under s 473CB of the Act. The Authority identified, insofar as the further information provided by the transcripts engaged with the delegate’s decision, it was not regarded as new information and the Authority had regard to the same.

6. The Authority identified the provision of three letters, each from a mayor of Tabbaneh. The Authority expressly considered those matters and whether they are on their face credible personal information. The Authority identified the accompanying translations and are dated the same, and found they could not have been provided to the delegate. The Authority then referred to the letters concerning events that had occurred prior to the delegate’s decision. The Authority referred to the applicant’s explanation that he did not provide the letters earlier because his view was that the application did not need further corroborative witness evidence until the delegate rejected some of his claims.

7. The Authority referred to it being made clear to the applicant in the Safe Haven Enterprise Visa interview the need to provide everything he wished to rely upon. The Authority identified having significant difficulty with the contents of the three letters. Despite purportedly being written by three different people, the statements containing the three letters are identically worded, including each giving the wrong year for the applicant’s date of birth, identifying the same wrong year in each letter. The Authority in those circumstances referred to the identical wording of the letters, including the error in the date of birth, and did not consider that they had any probative value at all. It was in these circumstances the Authority was not satisfied that there were exceptional circumstances to justify considering the new information in respect of the three letters. The Authority considered other new information that was provided in accordance with the requirements of s 473DD of the Act.

8. The Authority summarised the applicant’s claims. The Authority referred to the applicant’s claims that because of his family’s political activities and well-known support for the March 14 political parties they became targets of politically motivated revenge attacks by those who supported Hizballah. The Authority referred to an alleged three hour skirmish in the Al-Tabbenah district, and the applicant’s claims in relation to families threatening each other and with potential extracting of revenge.

9. The Authority referred to the applicant’s claims in respect of the revenge attacks and the supporting documents provided by the applicant as well as country information. The Authority accepted the applicant was a supporter of the Future Movement, generally assisting his father’s activities on behalf of the Future Movement, and that during one election in about 2009 or 2010 he also assisted the Future Movement by distributing pamphlets and food at a voting place.

10. The Authority found, however, that there were issues with parts of the applicant’s evidence about the inter-family conflict in Tripoli. The Authority referred to the lack of detail contrasting unfavourably in terms of the credibility of the applicant’s claims in respect of the inter-family conflict. The Authority referred to what the applicant had said at the Safe Haven Enterprise visa interview and that he had not mentioned specific incidents that led to his cousins’ departures or detentions. The Authority did not accept that it was credible that he applicant would fail to mention the same in the Safe Haven Enterprise visa interview.

11. The Authority also considered it lacking in credibility that the applicant failed to mention that there was ongoing problems between the families in his Safe Haven Enterprise visa interview. The Authority was satisfied that the applicant had exaggerated parts of his evidence in order to boost his claims for protection.

12. The Authority was prepared to accept that there was a long-standing inter-family conflict between the K and A families in Tripoli, and that K family members were killed and wounded with his cousin and uncle amongst those fighting around Bab-al-Tabbaneh in Ramadan in 2012, and that his cousins and two persons were killed in a clash in March 2014 by the A family, that no member of the A family has been jailed or prosecuted about the killings, and that the brother and the cousin killed in 2012 killed a member of the A family around October 2014 and were subsequently jailed for that killing.

13. The Authority was not satisfied there has been further fighting or other adverse incidents since the cousin killed a member of the A family in 2014. The Authority was also not satisfied that the applicant’s father filed a lawsuit following the deaths of the applicant’s cousin and that because of problems with the A family other cousins of the applicant have been detained in Lebanon.

14. The Authority referred to country information and was not satisfied the applicant would be viewed as a direct threat to either the A family or Hizballah if he returned to Lebanon.

15. The Authority referred to country information in respect of sectarian violence in Tripoli. The Authority identified where the applicant came from in Tripoli and identified that he is a Sunni. The Authority found the security situation in Lebanon is generally stable, including in Tripoli, since April 2014.

16. The Authority referred to country information, referring to Sunni’s being at a low risk of being caught up in cross border attacks in some parts of the North Governorate and referred to all of the March 14 Coalition supporters being at a low risk of violence. The Authority referred to country information about the current conditions and the applicant’s own profile and history and the Authority found the chance of the applicant suffering harm if he returned to Lebanon was remote.

17. The Authority was not satisfied there is a real risk of harm to the applicant due to the inter-family violence between the K and A families, his support for the Future Movement, because of the general security situation, and/or as a Sunni from Tripoli in the North, if returned to Lebanon, now or in the reasonably foreseeable future.

18. The Authority was not satisfied the applicant faced a real chance of harm as a returning asylum seeker now or in the reasonably foreseeable future. The Authority was not satisfied, having considered the applicant’s circumstances and profile as a whole, in the context of the country information, that the applicant faces a real chance of persecution now or in the reasonably foreseeable future. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.

19. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act.

20. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Lebanon from Australia, there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows

   1. The Immigration Assessment Authority ("the IAA") found at [31] that "the chance of the applicant suffering harm if he returned to Lebanon is remote". The IAA made two errors in arriving at this finding as follows:

   a) The IAA overlooked the country information in the last sentence of paragraph 3.29 of DFAT country information report for Lebanon dated 23 October 2017.

   b) The IAA accepted country information before it that "ordinary March 14 Coalition supporters are at low risk of violence". The IAA then equated a "low risk of violence" with "a remote chance" of violence. Yet the High Court has stated that a low risk of violence satisfies the real chance threshold. In the circumstances, the IAA misapplied the law in finding that the chance of the applicant suffering harm if he returned to Lebanon is remote.

   2. The applicant provided to the IAA three letters from mayors of Tabbaneh. The IAA, on application of s 473DD of the Migration Act, found at [6] that it was "not satisfied that there are exceptional circumstances to justify considering this new information". The IAA found, as a step to this conclusion, that "I do not consider [the three letters] have any probative value". The IAA's finding that the letters do not have any probative value was legally unreasonable or irrational. The IAA thereby erred in its finding under s 473DD.

Ground 1A

1. Mr Zipser of counsel on behalf of the applicant, in relation to the first ground, took the Court to the country information in a DFAT report and, in particular, a reference in relation to Sunnis being unlikely to be targeted because of their religion alone and attacks against Sunnis are often political and related to the conflict in Syria.

2. The Authority referred to the overall DFAT assessment that some of the communities close to the Syrian border face a low risk of being caught up in cross-border reprisal attacks by Syrian authorities. The Authority referred to the risk increasing if the community is sheltering anti-Syrian regime fighters.

3. The Authority referred to country information that Sunni communities close to the Syrian border are at low risk of being caught up in cross-border attacks. The Authority identified assessing that Sunnis in other areas of Lebanon currently face a low risk of violence or discrimination, but that the situation in Tripoli and Bab al-Tabbaneh, which the court accepts is a part of Tripoli, is susceptible to escalation at short notice.

4. Mr Zipser of counsel took the Court to the references to the family coming from the particular village of Bab Al-Tabbaneh and submitted that it should be inferred that the Authority has failed to have regard to the DFAT country information identified in paragraph 3.29 in the Authority’s adverse determination to the applicant in paragraph 31 of the Authority’s reasoning.

5. The Authority’s reasons are not be read with a keen eye of error. The Authority does not have to refer to every piece of evidence. There is no basis for the Court to infer that the Authority overlooked the DFAT country information. Indeed, the reference to the Authority’s reasons in paragraph 31 is entirely consistent with having regard to the DFAT country information.

6. Mr Zipser’s contention that the Court should find that the Authority had overlooked the country information in relation to paragraph 3.29 was advanced by reference to Bab al-Tabbaneh. It is apparent that the Authority identified where the applicant came from and also referred in its reasons to that particular village in paragraphs 14 and 22. There is no distinction in the country information between the situation in Tripoli and the situation in Bab al-Tabbaneh, so far as the reference to it being susceptible to escalation at short notice.

7. I do not accept there is any basis for the Court to find that the Authority overlooked the country information referred to by the applicant. The adverse finding by the Authority in relation to paragraph 31 was a logical and rational adverse finding taking into account what the Authority found to be the applicant’s own profile and history. No jurisdictional error as mentioned in ground 1A is made out.

Ground 1B

1. In relation to ground 1B, Mr Zipser submitted that the Authority had misapplied the correct test in relation to whether there was a real chance of serious harm from violence in the applicant’s home area the subject of the reasoning in paragraph 31. The applicant submitted that the Authority had equated a low risk as not meeting the real chance threshold. The Authority’s reasons in referring to the low risk were identifying country information. The Authority in its adverse finding took into account the applicant’s own profile and history in making an adverse finding that the applicant did not face a real chance of suffering harm if returned to Lebanon by reason of being remote. That adverse finding was open to the Authority and cannot be said to be illogical or rational, and reflects no misunderstanding or misapplication of the relevant test.

2. It is apparent that paragraph 31 should be read with a balance of the Authority’s reasons, and in paragraph 32, there is an express reference to the real chance of harm test as well as the real chance of time test in the reasonably foreseeable future referred to in paragraph 35 and paragraph 36. No jurisdictional error as alleged in ground 1B is made out.

Ground 2

1. In relation to ground 2, Mr Zipser submitted that the Authority’s conclusion in assessing whether the three letters met the requirements of s 473DD of the Act was legally unreasonable in holding that the letters did not have any probative value. The Authority’s reasons are not to be read with a keen eye for error. It is apparent from the commencement of paragraph 6 that the Authority understood that it was engaged in a preliminary task of assessment of the requirements, including whether the new information was credible personal information.

2. The Authority provided reasons for the adverse preliminary assessment in relation to the identical nature of the letters as well as the identical error in respect of the date of birth. Those reasons cannot be said to lack an evidence and intelligible justification. There was no legal unreasonableness or irrationality as alleged in ground 2 in respect to the adverse finding under s 473DD of the Act and that based on the material before the Court, the Authority took into account the whole of the provisions of s 473DD of the Act in the adverse determination in respect of the three letters. No jurisdictional error as alleged in ground 2 is made out.

3. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  22 May 2019