MZAFH v Minister for Immigration - [2015] FCCA 2397

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAFH & ORS v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2397

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – Jehovah’s Witnesses in Lebanon – Sunni Muslims – no evidence ground.

Legislation:
Migration Act 1958 s.91R(3)

First Applicant:

MZAFH

Second Applicant:

MZAFI

Third Applicant:

MZAFJ

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1110 of 2014

Judgment of:

Judge Riley

Hearing date:

17 August 2015

Date of last submission:

17 August 2015

Delivered at:

Melbourne

Delivered on:

17 August 2015

REPRESENTATION

Counsel for the first applicant:

The first applicant appeared in person

Solicitors for the first applicant:

The first applicant was not represented

Counsel for the second applicant

The second applicant did not appear

Solicitors for the second applicant

The second applicant was not represented

Counsel for the third applicant

The third applicant did not appear

Solicitors for the third applicant

The third applicant was not represented

Counsel for the first respondent:

Natasha Bosnjak

Solicitors for the first respondent:

Clayton Utz

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Clayton Utz

ORDERS

The application filed on 6 June 2014 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,825.
The second respondent’s name be amended to the Administrative Appeals Tribunal.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1110 of 2014

MZAFH

First Applicant

MZAFI
Second Applicant

MZAFJ
Third Applicant

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Refugee Review Tribunal. The applicants are a husband, wife and child. Only the first applicant, the husband, appeared before the court today. He appeared without the benefit of legal assistance.
The first applicant claimed that he was a citizen of Lebanon. He first arrived in Australia on 2 July 2007 on a student visa. On 13 July 2012, the first applicant lodged an application for a protection visa.

That application was refused by a delegate of the Minister. On

13 November 2012, the applicants sought review by the Refugee Review Tribunal. The first applicant appeared before the Tribunal to give evidence on 18 July 2013. The Tribunal conducted a second hearing on 28 August 2013. At the second hearing, both the first applicant and his wife, the second applicant, gave evidence to the Tribunal. On 21 May 2014, the Tribunal affirmed the delegate’s decision not to grant the applicants a protection visa.
The first applicant claimed to fear persecution in Lebanon on the basis that he had converted from being a Sunni Muslim to being a Jehovah’s Witness. He claimed that a university lecturer introduced him to the Jehovah’s Witness faith in Lebanon in 2005. He said that the applicant invited the lecturer to visit him at his village. When the first applicant’s father learned that the lecturer was a Jehovah’s Witness, the first applicant’s father assaulted the first applicant. The lecturer advised the first applicant to leave Lebanon and go to another country. The first applicant came to Australia two years later in 2007.

The second applicant joined the first applicant in Australia in 2009. The third applicant was born shortly thereafter.
The first applicant, at that stage, was on a student visa. The first applicant did not pursue his religion as a Jehovah’s Witness until 2012, at which time the first applicant also lodged his application for a protection visa. The first applicant claimed that he did not know where to go to practice his religion and also claimed that he did not want to do anything that would cause his wife not to join him in Australia.

The first applicant claimed that between 2007 and 2012 he continued attending a mosque for fear of being reported to his father. The first applicant claimed that he had been attending Jehovah’s Witness gatherings at a Kingdom Hall since 2012.
The first applicant claimed that a man called Fardi noticed a copy of the Bible on the first applicant’s table while he was visiting the applicants’ home. The first applicant said that Fardi asked the first applicant if he was a Christian. The first applicant said Fardi then told everyone in the suburb, where the applicants live that the first applicant was a Christian.
The first applicant claimed that his father in Lebanon discovered that the first applicant had become a Jehovah’s Witness. The first applicant claimed that his father cut off financial support to him, disowned him and threatened to kill him. The first applicant claimed that his wife had been threatened and assaulted on two occasions at shopping centres. The first applicant also claimed that three sheikhs from his community visited the first applicant at his home, told him to return to the Muslim faith and mentioned the threats and assaults against his wife. The applicant also claimed that his house and car had been vandalised on numerous occasions.
The Tribunal accepted that the assaults on the second applicant may have happened, but considered that they were random attacks. The Tribunal accepted that the first applicant’s house and car may have been vandalised, but considered that this was not for religious reasons.
The Tribunal did not accept that a university lecturer had introduced the first applicant to the Jehovah’s Witness faith. The Tribunal did not accept that the first applicant’s father had attacked him. The Tribunal did not accept that a person called Fardi had seen a Bible at the applicants’ home. (The Tribunal gave reasons for this, including that the accounts given by the first and second applicants were not consistent.)
The Tribunal did accept that the first applicant had attended a Kingdom Hall since 2012. However, the Tribunal considered that the first applicant did so to strengthen his claims to be a refugee. The Tribunal rejected the first applicant’s reasons for not practicing his alleged religion between 2007 and 2012. The Tribunal did not accept that the first applicant’s attendance at a Kingdom Hall was known to his relatives or in the broader Lebanese community. The Tribunal did not accept that the applicants had ever been threatened by relatives, strangers, sheikhs or anyone else for reasons of their real or imputed adherence to the Jehovah’s Witness religion.
The Tribunal considered that if the applicants returned to Lebanon, they would not pursue their alleged religion as Jehovah’s Witnesses because the sole purpose of their participation in those activities in Australia was to obtain protection. Consequently, the Tribunal did not accept that the applicants would be accused of apostasy if they returned to Lebanon.
The Tribunal also considered the complementary protection provisions. As the Tribunal did not accept that the applicants were genuine Jehovah’s Witnesses, the Tribunal did not accept that there were substantial grounds for believing that they would suffer significant harm for reasons associated with their supposed involvement in that religion. Nor did the Tribunal accept that the applicants faced significant harm as Sunni Muslims.
The application to this court contained one ground, which was that the Tribunal’s decision was made without jurisdiction and was affected by jurisdictional error. Five particulars were given of that ground.
The first particular was that the Tribunal had no evidence to base its conclusion that the applicant started his religious activities with the Jehovah’s Witnesses in order to strengthen his claims to be a refugee. However, there was evidence to support that conclusion. That evidence was, firstly, that the first applicant did not provide any evidence of having been baptised as a Jehovah’s Witness. Also, the first applicant came to Australia on a student visa in 2007 and did not participate in Jehovah’s Witness activities until 2012, when he lodged his protection visa application. These matters were evidence which supported the Tribunal’s conclusion that the applicant had started his Jehovah’s Witness religious activities in Australia in order to strengthen his claims to be a refugee.
The next particular in the application is that the Tribunal had fallen into error by disregarding the first applicant’s religious activities pursuant to s.91R(3) of the Migration Act 1958 (“the Act”). Subsection 91R(3) of the Act provides as follows:
For the purposes of the application of this Act and the regulations to a particular person:

(a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

Under s.91R(3) of the Act, the Tribunal was required to disregard any conduct engaged in by the applicants in Australia unless the applicants satisfied the Minister that they engaged in the conduct otherwise than for the purpose of strengthening their claims to be refugees. The applicants did not so satisfy the Tribunal. Therefore the Tribunal was obliged to disregard the applicants’ conduct as Jehovah’s Witnesses in Australia.
The next particular in the application was that there was no evidence to suggest that the first applicant and his wife would not engage in Jehovah’s Witness activities on their return to Lebanon. As the Tribunal had found that the applicants had engaged in Jehovah’s Witness activities in Australia for the sole purpose of obtaining protection, it was open to the Tribunal to conclude that the applicants would not participate in Jehovah’s Witness activities on their return to Lebanon.
The next particular provided in the application was that:
There is a real risk that the first applicant and his wife will suffer persecution from family and in-laws in Lebanon and be accused of apostasy or conversion on their return to Lebanon.

The Tribunal should have taken into account the question of apostasy in Lebanon and the likely effects on the [first] applicant and his wife.
The Tribunal did take into account the question of apostasy. At paragraph 91 of its reasons for decisions, the Tribunal said the following:
91. The Tribunal finds that if the applicants were to return to Lebanon, they would not engage in any Jehovah’s Witness activities as the sole purpose of their activities in Australia is to obtain protection. Consequently, the Tribunal considers that the applicants would not be accused of apostasy or conversion away from Islam.

Consequently, there is no substance in that ground.

The next particular set out in the application is that:
The Tribunal has erred, in that it comes to the conclusion that there are not substantial grounds for believing there was a real risk the applicants would be subjected to significant harm because of their religion conversion and the fact they are former Sunni Muslims. Also, substantial grounds include the current political/religious situation in Lebanon and the manner in which apostasy/conversion is treated by the general Muslim population in Lebanon.

The Tribunal did consider the current political and religious situations in Lebanon. At paragraphs 94 to 102 of its reasons for decision, the Tribunal said the following:
94. He referred to the current ‘turmoil’ in Lebanon. He talked about what he saw as rising sectarian tensions and ‘orchestrated targeting’ of various religious groups, including of Sunni Muslims. The applicants, he submitted, would be at risk of harm because of the perception that they are Sunni. He stated there was ‘an underlying perception that they are Sunnis’, especially as they would not dare to disclose their (genuine) Jehovah’s Witness religion.
95. The Tribunal asked the applicants whether they feared harm as Sunnis. The applicants said that they were Jehovah’s Witnesses. They lived in a Sunni area and their (Sunni) relatives thought that if they killed one of the applicants they (the relatives) would go to heaven.
96. The Tribunal said that according to the available country information the risk of harm to a Sunni from Akkar district was only remote. The first named applicant said once again that he feared death because he is a Jehovah’s Witness. When the Tribunal explained one more time the alternative submission, both applicants said they had nothing to add and their fear was because they were Jehovah’s Witnesses. Then, finally, the first named applicant said either as a Jehovah’s Witness or as a Sunni he was at risk.
97. The applicants’ representative said there was a real chance or real likelihood of violence anywhere in Lebanon. The Tribunal said there had been bombings in Tripoli and Beirut but not in Akkar district. The Tribunal said it could not accept on the available information that a Sunni living anywhere in Lebanon faces a real chance of persecution. The representative then pointed out that the Tribunal needs to consider also whether the applicant may be confined to Akkar district of Lebanon.
98. While the focus of the applicant’s claims was their alleged Jehovah’s Witness religion the Tribunal has also considered the applicants’ claims that they fear harm in Lebanon for reasons of their Sunni religion and actual or imputed political opinion in support of Sunni dominated parties.
99. First, the Tribunal notes that the claim was made very late and by their agent, not by the applicants themselves. It was only after the Tribunal explained to the applicants three times what their representative was suggesting that the first named applicant agreed he could be harmed because of his Sunni religion. The Tribunal finds that the applicants do not have a subjective fear of persecution for reasons of their actual or imputed Sunni religion or their actual or imputed political opinion in support of Sunni dominated parties in Lebanon.
100. Furthermore, the country information indicates that despite concerns about a spill over of the violence from Syria, and despite isolated incidents across the country, the vast majority of Sunnis in Lebanon have not become the victims of violence caused by Shias, Hezbollah, Alawites, Syrian agents or anyone else in Lebanon who might be considered to be anti-Sunni. Hezbollah appears focused on supporting President Assad’s operations in Syria and reluctant to provoke conflict within Lebanon. According to a November 2012 International Crisis Group report both sides of Lebanon’s political divide have shown ‘considerable restraint’.
101. The Tribunal has also taken into account information about further acts of violence since the Tribunal held its hearing – 2 major terrorist attacks in Beirut on 19 November 2013 against the Iranian embassy that killed at least 23 people and on 2 January 2014 near a Hezbollah security zone; the twin mosque bombings in Tripoli that killed at least 47 people and other more minor incidents.
102. Based on all the evidence available to it, the Tribunal does not accept that the applicants face a real chance of serious harm amounting to persecution. Having assessed their claims both individually and cumulatively, the Tribunal finds that they do not have a well-founded fear of persecution at the hands of Hezbollah, Shia Muslims, Alawites, Syrian agents or anybody else for reasons of their actual or imputed Sunni religion or actual or imputed political opinion if they were to return to Lebanon now or in the reasonably foreseeable future.
The Tribunal considered these issues in detail and referred to relevant country information. However, the Tribunal concluded that the applicants did not face a real risk of persecution for those reasons and did not face a real risk of significant harm for such reasons. It seems to me that the Tribunal’s conclusions in this regard were open on the evidence.
The applicants also filed written submissions. The written submissions largely restate the grounds of application and make submissions going to the merits of the Tribunal’s decision.
The first applicant made oral submissions to the court today. However, those submissions went to the merits of the Tribunal’s decision. As explained during the course of the hearing, the court is not able to reconsider the merits of the case.
I am not persuaded that there was any jurisdictional error in the Tribunal’s reasons for decision or in its decision making process. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 2 September 2015