MZAFR v Minister for Immigration
[2017] FCCA 430
•24 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAFR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 430 |
| Catchwords: MIGRATION – Application for protection visa – whether Tribunal failed to consider a claim made by the Applicant – whether the Tribunal correctly applied the real chance test – whether the Tribunal failed to afford the Applicant procedural fairness by failing to draw to the Applicant’s attention issue(s) which may be dispositive to its decision – no jurisdictional error – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425 Family Law Act 1975 (Cth), s.4AB |
| Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 |
| Applicant: | MZAFR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1130 of 2014 |
| Judgment of: | Judge Jones |
| Hearing date: | 13 December 2016 |
| Date of Last Submission: | 13 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Selimi |
| Solicitors for the Applicant: | Ravi James Lawyers |
| Counsel for the Respondents: | Mr Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Amended Application for judicial review filed 2 December 2017 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1130 of 2014
| MZAFR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and Background
By her Amended Application for judicial review filed 2 December 2016, the Applicant seeks judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 6 May 2014 affirming a decision made by a delegate of the Minister for Immigration and Border Protection (“the Minister”), refusing to grant the Applicant a Protection (Class XA) visa (“the visa”).
In her written outline of submissions filed by the Applicant on 13 December 2016, the Applicant stated she accepted the Minister’s summary of the relevant background and critical findings and reasons of the Tribunal contained in the Minister’s Contentions of Fact and Law filed on 27 July 2015. Accordingly, the following summary of the relevant background, the claims of the Applicant and the Tribunal’s decision record follows closely the summary contained in the Minister’s Contentions of Fact and Law.
The Applicant is a female Lebanese citizen of Sunni Muslim faith. The Applicant arrived in Australia on 5 August 2012.
The Applicant applied for the visa on 2 November 2012 (CB 8-68). A delegate of the First Respondent refused to grant the visa on 20 December 2012 (CB 75-89). An application for review was made to the Tribunal on 15 January 2013 (CB 90-95). The Tribunal affirmed the decision on 6 May 2014 (CB 129-140).
The Applicant’s claims were founded upon a claimed relationship that she had at university in Tripoli with a fellow student, Mr E, which commenced in March 2012. After some 3 months, the Applicant learned that Mr E was from the Alawi sect and she decided to break off the relationship due to the differences in religious beliefs and due to sectarian violence between Sunni and Alawi Muslims. She further learned that his cousin was a leader of the Jabal Moshen Alawis.
The Applicant claimed that after she broke off the relationship, Mr E threatened and intimidated her, including an incident in which she was attacked by him at her home. The Applicant claimed that he also threatened her family.
The Applicant claimed that she was a victim of domestic violence. That Mr E and his friends repeatedly intimidated and threatened her. It was due to these incidents that the Applicant feared she was unable to return to Lebanon. She claimed there was no protection for victims of domestic violence. She claimed that the State would not protect her because she is a member of the particular social group of “women” (CB 132 at [19]).
Tribunal Decision
The Tribunal noted that (CB 132 at [19]):
19. The issues in this case are first, whether the applicant has a well-founded fear of harm from an Alawite man with whom she had a relationship. The applicant’s representatives framed the claim as one of domestic violence. It was argued that the applicant had a well-founded fear of persecution from [Mr E] (non-state actor) and that the state would not protect the applicant because she is a member of the particular social group women. Secondly, she made a more general claim that she had a well-founded fear of persecution for reasons of her Sunni religion and her imputed and actual political opinion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal found “significant aspects of the applicant’s evidence to be vague and, in light of the country information, implausible” (CB 134 at [28]). It accepted that the Applicant was a Sunni Muslim, and that she studied at a university in Tripoli, that she talked to Mr E at the university and that Mr E had a romantic interest in her. However, the Tribunal did not accept that “[Mr E] (or any of his relative[s], friends or associates) pursued the applicant in order to convince or coax her into marrying him, that he was ever threatening, abusive or violent, that he fired his gun, that he stalked her or did anything else that may have made her apprehensive about her safety” (CB 134 at [28]). The Tribunal further found it “implausible that the applicant would have remained completely ignorant of [Mr E’s] background for so long if they were in a ‘relationship’ as claimed in her statutory declaration” (CB 135 at [32]). The Tribunal found it implausible that Mr E, a year after the Applicant came to Australia, would be still looking for her by doing nothing more than standing around a building where she had lived in Tripoli (CB 135 at [33]), and implausible that he would not make some inquiries as to the Applicant’s whereabouts (CB 135 at [34]).
In relation to the manner in which the Applicant claimed Mr E stalked her, the Tribunal found the Applicant and her witness had exaggerated the influence and power of the Alawites in Tripoli. It was not satisfied that Mr E would have behaved in such an aggressive and brazen manner in pursuing her after she told him that she was not interested in an intimate relationship with him (CB 136 at [38]). In light of the Applicant’s and her witness’s evidence and country information regarding Alawites and Sunnis in Tripoli, it found “highly implausible” her claims of repeated stalking and the assault (CB 137 at [44]). It did not accept that if she were threatened in the manner claimed or that she could not seek help from family, other Sunnis or the authorities (CB 137 at [45]). The Tribunal found that the evidence did not support the proposition that a man of one faith could kidnap a girl from another faith and marry her against her will, and the will of relatives, including her father and four brothers (CB 138 at [47]-[48]).
The Tribunal concluded that the Applicant did not face a real chance of persecution for any reason (CB 138 at [49]). In those circumstances, it stated that it was not strictly necessary to deal with the claims that the applicant feared domestic violence and that the state authorities will not protect her (CB 138 at [49]). It did, however, make the following observations on these claims (CB 139 at [51]):
51. In any event, this claim cannot succeed because on the evidence before it, the Tribunal does not accept the applicant’s claims to have suffered serious harm in the past and to have a well-founded fear of harm from [Mr E] if she was to return to Lebanon now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution by [Mr E] or anyone else if she were to return to Lebanon now or in the reasonably foreseeable future.
The Tribunal went on to consider and reject claims to fear persecution for reasons of her Sunni religion and actual or imputed political opinion (CB 139 at [52]), and concluded the Applicant did 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 political opinion or religion, or for any other Convention reason” (CB 140 at [55]).
The Tribunal also considered and rejected claims arising under the complementary protection provisions of the Migration Act 1958 (Cth) (“the Act”) (CB 140 at [57]-[58]).
Judicial Review
The Applicant’s amended grounds for judicial review, other than ground three which the Applicant said in her written submissions he no longer pressed, are as follows:
1. The Tribunal committed a jurisdictional error of law by failing to discharge its statutory function to consider the Applicant’s primary claim of family violence inflicted upon her in accordance with the law by holding that it was “not strictly necessary to deal with the claim that the applicant fears domestic violence and that the state authorities will not protect her.”
2. The Tribunal committed a jurisdictional error of law by failing to apply the correct “real chance” test enunciated in Chan by holding that the Applicant had to prove that she “would be subject to violence at the hands of Mr A”, rather than to merely establish that there was a “real chance” that she would suffer domestic violence which would be tolerated by the State.
…………
4. The Tribunal had committed a jurisdictional error of law by failing to accord the Applicant procedural fairness in that the Tribunal did not sufficiently challenge the Applicant’s claims of violence in a manner which indicated that her version of events was a “live issue” before the Tribunal.
(emphasis in original)
Ground one
The focus of this ground of judicial review is paragraph [49] of the Tribunal’s decision record, which is as follows:
49. As the Tribunal has concluded that the applicant does not face a real chance of persecution for any reason, it is not strictly necessary to deal with the claim that the applicant fears domestic violence and that the state authorities will not protect her. At the hearing, the Tribunal observed that for that Convention claim to succeed [sic] must first be satisfied that the applicant will be subjected to violence at the hands of [Mr E] because at present she is not in a relationship with [Mr E]. The applicant said if [Mr E] kidnaps her and forces her to marry him “who knows” what will happen. The representative said that there was a violent relationship was which was already in existence and continuing.
In her written submissions, this ground of review is characterised by the Applicant as a failure by the Tribunal to consider her claim that she suffered “domestic violence” at the hand of Mr E.
At the commencement of the Tribunal’s consideration of the Applicant’s claims and evidence in its decision record, the Tribunal noted that one of the issues in this case was whether the Applicant had a well-founded fear of harm from an Alawite man with whom she had a relationship. The Tribunal noted that the Applicant’s representatives framed the claim as one of domestic violence (CB 132 at [19]). In her statutory declaration attached to her application for the visa, the Applicant made claims that once she told Mr E that she did not want him as a boyfriend but as a friend, he engaged in the following conduct; he threatened her, he harassed and stalked her, he yelled and swore at her, he grabbed her by the throat and pushed her up against a wall and fired shots in the air as he drove off. The Applicant described him as displaying a “possessive, violent side and it was very scary”. The Tribunal extracted the relevant extracts from the statutory declaration in its decision record (CB 133 at [23]).
In oral submissions, Counsel for the Applicant said that, but for the phrase, “[i]t is not strictly necessary to deal with the claim that the applicant fears domestic violence” appearing at [49] of the Tribunal decision record, the Applicant would not be agitating ground one. This is because the Applicant concedes that, notwithstanding the general disclaimer in [45] of the necessity to deal with the issue of domestic violence, it is plain from the reasons of the Tribunal that the Tribunal did consider particular incidents of alleged violence, constituted by physical acts or threats at the hands of Mr E.
Counsel for the Applicant disputed the assertion at [6] of the Minister’s written submissions, that the Tribunal had “rejected the applicant’s claims that she was in a relationship with [Mr E]”. Counsel argued that it is evident that the Tribunal acknowledged that there was a relationship.
The Tribunal accepted there was some sort of relationship between the Applicant and Mr E but not the sort claimed by the Applicant. It is evident from her statutory declaration that the Applicant’s claim was that they had a romantic relationship as boyfriend and girlfriend. The Tribunal also rejected the Applicant’s claims to have suffered serious harm. The Tribunal stated (CB 134 at [28]):
28. The Tribunal accepts that there was a man called [Mr E]… with whom the applicant met at university in March 2012… and that he gave her some textbooks. The Tribunal gives the applicant the benefit of the doubt and accepts that they used to talk and see each other at university and that [Mr E] had a romantic interest in the applicant until they realised that one of them was Sunni and the other Alawi. For the reasons that follow the Tribunal does not accept that [Mr E] (or any of his relative [sic], friends or associates) pursued the applicant in order to convince or coax her into marrying him, that he was ever threatening, abusive or violent, that he fired his gun, that he stalked her or did anything else that may have made her apprehensive about her safety. The Tribunal found significant aspects of the applicant’s evidence to be vague and, in light of the country information, implausible.
Later in its decision record, regarding the Applicant’s legal representative’s submission that there was an existing violent relationship which was continuing, the Tribunal said that (CB 139 at [51]):
51. In any event, this claim cannot succeed because on the evidence before it, the Tribunal does not accept the applicant's claims to have suffered serious harm in the past and to have a well-founded fear of harm from [Mr E] if she was to return to Lebanon now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution by [Mr E] or anyone else if she were to return to Lebanon now or in the reasonably foreseeable future.
I agree with the Minister’s submissions that the Tribunal is not required to make a finding in respect of a matter where it is subsumed in findings of greater generality, or there is a factual premise upon which a contention rests which has been rejected: WAEE v Minister for Immigration and IndigenousAffairs (2003) 75 ALD 630; SZRSJ v Minister for Immigration and Border Protection [2015] FCA 457. It is it is evident from the findings of the Tribunal, as set out above, that the Tribunal rejected the Applicant’s claim that Mr E enagaged in the conduct that she alleged or that she suffered serious harm of any sort from Mr E. The Tribunal’s findings have clearly dealt with the Applicant’s claim to have suffered domestic violence at the hands of Mr E. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said (at [91]):
91. Further, in rejecting the argument that the two attacks it accepted had occurred could give rise to a well-founded fear of persecution, the Tribunal made a finding that the Hawiye clan was not targeting the Abaskul clan. This finding, being a finding at a higher level of generality than the question of specific incidents, may well explain why the Tribunal made no detailed finding about the house invasion. That being so, it is not demonstrated that the Tribunal made some error of law. It is not shown that it failed to take account of a relevant matter or that it asked itself the wrong question.
I reject the Applicant’s submission that the Tribunal effectively only dealt with the Applicant’s claims about specific acts that Mr E engaged in. The Tribunal found that there was a relationship between the Applicant and Mr E, but not the relationship as claimed by the Applicant. Furthermore, the conduct the Applicant claimed Mr E engaged in clearly those acts falls within the scope of conduct constituting domestic violence or family violence: see s.4AB Family Law Act 1975 (Cth). Equally clearly, the Applicant relied on those acts to support her claim that she suffered from domestic violence engaged in by Mr E. I am satisfied that, in its findings made at [28] and [51] of its decision record, the Tribunal considered and rejected the Applicant’s claim to have suffered domestic violence from Mr E.
Accordingly, I find that no jurisdictional error arises on the basis of ground one.
Ground two
The focus of the Applicant’s ground two is part of [49] of the Tribunal’s decision record (extracted in full at [8] above), where the Tribunal says (CB 138 at [49]):
… At the hearing, the Tribunal observed that for that Convention claim to succeed [sic] must first be satisfied that the applicant will be subjected to violence at the hands of [Mr E]…
The Applicant submits that it is well settled that an applicant need only adduce evidence in support of “a real chance” of persecution if he or she is forced to return to her country of nationality: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”).
The Applicant submits that the Tribunal failed to apply the “real chance” test enunciated in Chan by holding that the Applicant had to prove that she would be subject to violence at the hands of Mr E, rather than to merely establish that there was a “real chance” that she might suffer domestic violence at his hand.
The Minister submits that the reliance by the Applicant on this statement of the Tribunal does not reveal that the Tribunal misdirected itself by imposing an impermissibly high standard or test, rather than applying, as it should have, the “real chance” test.
The Minister relies on the decision in NABB v Minister for Immigration and Multicultural and Indigenous affairs [2002] FCAFC 225 (“NABB”). A ground of appeal in NABB was that the primary judge erred in failing to hold that the Tribunal failed to assess the appellant’s claims of a well-founded fear of persecution in Iran by reference to whether there was a “real chance” that the Appellant and his family may suffer persecution on the grounds of their religion, but rather whether the threats of personal harm “would be carried out” (NABB at [9]).
In NABB, the Full Court noted that the Tribunal had concluded that it was not satisfied that the appellant’s family had “a well-founded fear of persecution” for the reasons advanced (NABB at [21]). At the commencement of its reasons, the Full Court also noted that the Tribunal set out the definition of “Refugee” in the Convention Relating to the Status of Refugees and observed that there were “four key elements” of the definition. In relation to the fourth element, the Tribunal stated that “[a] person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason” (NABB at [23]).
Relevantly, the Full Court in NABB stated (at [21] and [22]):
21. … The appellant relies on the proposition that the statements in question are not made in terms of “a real risk” or “a real chance” of persecution. The appellant relied on passages as follows:
The Tribunal is not satisfied that these threats to the applicant parents would be carried out should the family return to Iran. …The Tribunal is prepared to accept that the threats were made but is not satisfied that they would be carried out.
………………………
Given the passage of time and the inevitable relocation to another part of Ahvaz, the Tribunal is not satisfied that the family’s return to Ahvas would come to the attention of Ms Arastoo nor to any of the people engaged by Ms Arastoo to harass the family in the past. …The Tribunal is not satisfied that Ms Arastoo would have any interest in Rim or her family if Rim does not return to her school.
In each case, the words complained of, namely “would be carried out”, “would” and “would have”, are connected to the Tribunal’s absence of satisfaction about whether any possible harm or threat would come to fruition. While the sentences do not state what standard of satisfaction was being applied by the Tribunal, the Tribunal’s reasons, as a whole, indicate that it was applying the well founded fear standard as explained by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.
(emphasis in original)
The Full Court proceeded to note that the Tribunal had set out the correct test at the commencement of this decision (NABB at [25]) and re-stated the test during the course of its decision when the Tribunal used the phrase “is not satisfied that the applicants have a well-founded fear of persecution”. It observed that (NABB at [24]):
There is no reason to conclude that the Tribunal, when stating its conclusions in those three passages was intending to apply a standard other than that which it had set out in relation to the fourth key element of the definition.
The Full Court found (NABB at [25]):
There is no justification for concluding that the Tribunal made such an elementary error as is relied upon by the appellant. In circumstances where the Tribunal started and finished by stating the correct “real chance” test, the fact that it used some phraseology in between that might or might not have suggested a departure from that test is not a warrant for concluding that the Tribunal erred in law. The appellant’s contentions are, in essence, an invitation to the Court to read the Tribunal’s reasons “with an eye keenly attuned to error” (see Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2).
In the present case, the Minister notes that, at the commencement of its decision record, the Tribunal set out the definition of “Refugee” in the Convention Relating to the Status of Refugees and observed that there were four key elements (CB 130 at [87]). In relation to the fourth element, the Tribunal stated that “a person has a ‘well founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason” (CB 131 at [12]).
Likewise, the Minister argues that the Tribunal re-stated the correct test in other parts of its decision:
a)at [19], where the Tribunal said that an issue in this case was “whether the applicant has a well-founded fear of harm from an Alawite man”;
b)in that same passage, the Tribunal referred to the Applicant’s case that she had a well-founded fear of persecution from Mr E and that she had a well-founded fear of persecution for reasons of her Sunni religion;
c)at [49], the Tribunal stated that it “… has concluded that the applicant does not face a real chance of persecution for any reason”;
d)at [51], the Tribunal stated that, “[i]n any event, the claims cannot succeed because on the evidence before it, the Tribunal does not accept the applicant’s claims to have suffered serious harm in the past and to have a well-founded fear of harm…”;
e)at [55], the Tribunal stated that, “[b]ased on all the evidence available to it, the Tribunal does not accept that the applicant faces a real chance of serious harm amounting to persecution… [S]he does not have a well- founded fear of persecution… or for any other convention reason…”; and
f)at [57], the Tribunal stated that, “[t]he Tribunal has already found that the applicant does not have a well-founded fear of persecution because there is not a real chance of serious harm for any reason.”
This Court is bound by the reasoning adopted in the decision in NABB. I am satisfied that, when regard is had to the reasons of the Tribunal as a whole, the Tribunal understood and correctly applied the “well-founded fear of harm” test as explained in Chan in relation to the Applicant’s claim to suffer persecution from Mr E.
Accordingly, I find that no jurisdictional error arises from ground two.
Ground Four
The Applicant’s fourth ground of judicial review can be properly characterised as a submission that the Tribunal did not comply with s.425 of the Act, because it failed to accord her procedural fairness by failing to alert the Applicant, during the hearing, of issue(s) that it considered arose in relation to the decision under review.
Section 425 of the Act requires the Tribunal, subject to certain qualifications not relevant here, to invite an Applicant to give evidence and present arguments relating to issues arising in relation to the decision under review.
The Applicant submits that the Tribunal, on a fair reading of the transcript of the hearing, failed to alert, or in the alternative, sufficiently alert the Applicant that the credibility of her various claims of suffering physical or emotional violence at the hands of Mr E was a live issue at the hearing. The Applicant asserts that, to the contrary, the Tribunal Member expressed acceptance of the Applicant’s claims of domestic violence. The Applicant submits that the Tribunal’s failure to alert the Applicant to this live issue had the effect of denying her procedural fairness.
This ground relies on the reasoning of the majority judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), where Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said (at [35]-[36]):
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
36. It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The following statement reflects the settled principle regarding the requirements of procedural fairness (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591, which was affirmed in SZBEL at [32]):
It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
The Applicant contends that the failure of the Tribunal to accord her procedural fairness is evident from a reading of the transcript of the Tribunal hearing. A transcript of the Tribunal hearing held on 31 July 2015 prepared by “DTI” was filed by the Applicant on 2 December 2016.
The Applicant submits that the Tribunal Member made it clear that her claims to have suffered harm from Mr E were critical issues when the Member said to the Applicant (at T 6.43):
The first thing that I will spend most of the time on is about your claims of what you say has happened to you in the past and the Alawi man who you say has harmed you in the past.
Counsel for the Applicant identified the following extracts from transcript which he argued demonstrated that the Tribunal did not draw to the Applicant’s attention that her credibility in relation to claims of harm from Mr E was an issue for the Tribunal.
First, Counsel for the Applicant identified extracts where the Tribunal Member is dealing with the Applicant’s evidence about her brother finding out that Mr E was an Alawi. The exchange is as follows (at T 16.9-16.45):
MEMBER: Okay. And so what about your brother? In your statement you talked about your brother finding out that [Mr E] is an Alawi. When did that happen?
INTERPRETER: I don’t know where he heard that from. Of course I came to know that he was Alawi, and I don’t know who told my brother about that. And when he talked to me and asked me to break up with him, I told him that it’s already finished.
MEMBER: So you had this conversation with your brother later? After Mr M told you?
INTERPRETER: Yes.
MEMBER: Okay. And so how far had that relationship between you and [Mr E] advanced? Was he talking about marrying you? What was the situation before you learned from Mr M that – just before you learned from Mr M that he was an Alawi?
INTERPRETER: He had feelings for me. He loved me, and I got attached to him as well. But obviously he was far more attached to me than I was. But since I’ve learned that he was Alawi, I stopped the relationship.
MEMBER: During the three months that you were spending time together, you didn’t talk about other’s families and so you didn’t, for example, say, “I’m from Mish Mish.” He didn’t say, “I’m from Jbeil Machen”?
INTERPRETER: No, he didn’t mention that he is from Jbeil Machen. He said, “I’m from Tripoli” but not precisely where.
Counsel for the Applicant then referred to an answer given by the Applicant (at T 17.17):
INTERPRETER: Maybe because he fell in love with me. He got attached to me and he wanted to marry me, but as from our side as Sunni, it’s a taboo. It’s a no-no. We can’t get married to an Alawi. As our society, as Sunni, we are not allowed to get married to an Alawi.
It should be noted that the above extracts from transcript were responses to a question from the Tribunal Member as follows (at T 17.11):
MEMBER: You say that Mr M and your brother and you, and presumably other people, because you are Sunni, you had concerns about the fact that [Mr E] is an Alawi man. So I’m asking you why that wouldn’t apply equally to [Mr E] and his family, and why an Alawi from a prominent Alawi family would want to marry a Sunni girl.
Counsel for the Applicant noted that the Tribunal Member then went on to deal with her claims to have been harmed by Mr E (at T 17.29-18.43):
MEMBER: So you basically told him you didn’t want to see him because he’s an Alawi?
INTERPRETER: Yes.
MEMBER: And what did he do?
INTERPRETER: He became temperamental and he said, “That’s impossible. You are for me.”
MEMBER: And that was still in June?
INTEPRRETER: Yes.
MEMBER: Okay. And so – what – you started to avoid him?
INTEPRPRETER: Yes.
MEMBER: Okay. And what did he do to you?
INTERPRETER: He – whenever he used to see me in the street – I’m sorry. I’m sorry, Member. I need to ask her the question again.
MEMBER: Yes. What sort of things did he do to you when you told him that you didn’t want to be with him anymore.
INTERPRETER: He started to watch me and wherever he used to see me, he would stalk me by his car. And he would call me at my number but I wouldn’t answer my phone. And I don’t know how did he find out about the landline. And he was trying to call me very late at night, at 12 at night or after that, so – to bother me. So I knew that he was trying to do that. I would disconnect the phone.
MEMBER: So he was basically calling your brother’s house?
INTERPRETER: Yes.
MEMBER: Yes. Okay. And what would – did your brother know what was going on?
INTERPRETER: No, because when he was ringing, I used to answer the phone but when my brother pick up [sic] the phone he would hang up. If I was there and my brother would answer the phone, no one would – he wouldn’t answer, so he would hang up.
MEMBER: Okay. So and did your brother confront him? Did your brother say, “Does this have anything to do with [Mr E]?” Or, “Why is it that when you pick up the phone you have a conversation whereas when I pick up the phone, the person who is ringing hangs up. So obviously that person wants to talk to you.”
INTERPRETER: No. Even – because when I used to answer the phone, the minute I hear his voice, I would hang up and I would tell my brother maybe it’s the wrong number or somebody is trying to call.
MEMBER: So it seems to me that [Mr E] was engaging in highly inappropriate stalking behaviour but he was not threatening your brother or threatening you. He was just saying, “You’re meant to be with me. Let’s get back together”?
INTERPRETER: Yes.
Counsel for the Applicant submitted that this exchange discloses that the Tribunal Member explicitly accepted that Mr E was “engaging in highly inappropriate stalking behaviour”, which clearly constitutes an aspect of family violence.
The following extracts relied on were the Applicant’s responses when asked to describe an incident in the building where she lived. The Applicant states (at T 20.1-20.11 and T 20.25-20.35):
INTERPRETER: As soon as he saw me, he approached me. And he grabbed me from my neck and towards the wall. And he pushed me to the wall. I tried to calm him down. I told him, “It’s okay. I’ll be for you but please don’t kill me.” I’m sorry, Member. I don’t understand what she’s talking about. She’s very quiet. Okay. A neighbour of ours witnessed what was happening and at the moment when [Mr E] realised that the neighbour was watching, he let me go and run away. And he starting shooting in the air, and took his car and went away. And he was telling me that, “You broke my heart,” and, “Don’t try to play this game with me. I’m stronger than you are.” This incident took place at the same time when I had applied already to come to Australia.
…………
MEMBER: Okay. So in your statement you say he used follow you in his car and “On one occasion he drove by and stopped in front of my home in the Al-Qubba. He fired a gun up in the air and sped off leaving behind a massive skid mark.” So is this the same incident where he was choking you or is this a different incident?
INTPERPRETER: Yes.
MEMBER: Yes, the same incident?
INTEPRETER: Yes.
Counsel for the Applicant submitted that it is evident from the above exchange that the Member is referring to the firing of the gun in the air and the choking incident. Counsel for the Applicant submitted that there is no suggestion in the exchange that the account of evidence given by the Applicant might possibly be disbelieved.
Counsel for the Minister relied on the following statement by the majority in SZBEL (at [47] to [48]):
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Secondly, as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry:
[T]he rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The Minister submitted that the central issue for the Tribunal to determine was whether there was a relationship between the Applicant and Mr E. Subsidiary to that, were her claims to have suffered harm from Mr E.
The Minister submitted that the Tribunal clearly put the Applicant on notice that the Applicant’s claim to have had a relationship with Mr E was a live issue. Counsel for the Minister argued that the Tribunal Member clearly expressed his disbelief about the relationship during the course of the hearing. The following extracts are relied on by the Minister. At T 21.28, the Member states:
MEMBER: Okay. And you still had no idea that he is an Alawi? I find that hard to believe that you would be spending time with [Mr E] and his friends and that you would have no idea that they are Alawi, especially if they are armed. I would expect that they would go to places where only Alawi’s go, because otherwise there may be a problem with Sunnis.
At T 23.28:
MEMBER: Yes. Okay. Now, as I said to you earlier when you were giving evidence, it seems to me [Mr E] was obsessed with you and he wanted to be with you but he was not brave enough to make any open threat, for example, in front of your brother. And he was also not brave enough to do anything out in the street. So as soon as the neighbours saw [Mr E], [Mr E] left in his car.
INTPERETER: What do you mean?
MEMBER: What I mean is that he would – on one occasion he was choking you but as soon as the neighbours saw what was happening, he ran away. And on other occasions he would call you but he would say, “Wrong number” and hang up and he wouldn’t do anything more. Or your brother would pick up the phone and then [Mr E] would hang up. So why do you think
[Mr E] will harm you if you go back?
At T 31.1:
MEMBER: All right. Now, there are a couple of things that I need to think about. I need to think whether I accept them. The first one is that for two or three months while you were with
[Mr E] that his religious background did not come up as a topic and that you were spending time with his friends and, again, neither your religious background came up, nor his religious background came up. That’s the first thing.
The second thing is that apart from the incident where you say that [Mr E] was trying to choke you, there was no other incident where he was actually violent, and as I said to you earlier, whenever your brother picked up the phone at home, he would hang up. So it doesn’t seem to me that he was – it seems to me that he was actually scared. He was perhaps obsessed with you but he was scared of your brother and that’s why he hung up every time your brother picked up the phone.
… And the third thing is I’m not sure – I need to think about this new claim about strange people… standing in front of the house and the claim that your sister-in-law somehow knew that… either [Mr E] or people related to [Mr E] who were waiting for you to return back to this house in circumstances where you have been here for 12 months now.
The Member returned to the issue about the Applicant’s ignorance of Mr E’s religion until she was told by Mr M (at T 32.8):
MEMBER: Okay. And what about I said earlier that – the other two issues, that I find it difficult to accept that his religious background or your religious background would not have come up during the time when you were – he was spending a lot of time with you and he fell in love with you. And Lebanon is well-known for its religious diversity and people from different backgrounds. So how is it possible that your background or his background would not have come up during the first two or three months that you were together?
The Member raised an issue about an inconsistency in the Applicant’s evidence regarding the reasons the Applicant gave to Mr E about ending her relationship with him (at T 32.24):
MEMBER: … Now, why is it that in your statement you say that you told [Mr E] that you want to concentrate on your studies and he accused you of being with somebody else. He asked you whether you were with somebody else; that’s why you didn’t want to be with him. Whereas today you’re saying you told him you didn’t want to be with him because of his religious background?
Subsequently, in relation to submissions made by the Applicant’s legal representative regarding the “second thing” that the Member identified that he had to think about (see T 31.1, extracted in [48] above), the Member said (at T 40.3):
MEMBER: Yes. I’m sorry if it came out that way. I was certainly not suggesting in any way that that behaviour is acceptable or that if he did that to you that that’s okay or that you didn’t have every right to be absolutely terrified of him. That’s not how I meant it to – what I meant at all. What I meant was that perhaps he lost his cool on one occasion but that was soon after the break-up, but that he would not engage in any of that behaviour any more. And I understand you disagree with that proposition so there’s no need for you to repeat that. I understand what’s being put to that.
The Member then said the following to the Applicant’s legal representative about the issues before the Tribunal (at T 41.23-41.45):
MEMBER: All right. Well, what I was talking about before about the country information is it needs to be more specific. Because you’re talking about domestic violence but it seems to me that there is this first issue of what will happen to the applicant if she goes back. So she’s not currently in a relationship with [Mr E], and I think to say that she’s in an abusive domestic relationship with [Mr E] is skipping one step, which is that when she goes back he will kidnap her and then he will be abusive towards her after he kidnaps her and forces her to marry him. Interpreter, do you understand what I’m saying?
INTERPRETER: Yes.
…………
INTERPRETER: It’s pre-emptive.
MEMBER: Yes. So the submission is being made that women are discriminated against in Lebanon. They are often subjected to domestic violence in relationships. That they can’t get protection. And what I’m saying is that at the time when she goes back to Lebanon, the applicant will not actually be in a domestic relationship with [Mr E]. So I need to be satisfied first on that preliminary statement that he will kidnap her, force her to marry him and then he will be violent towards her.
The Applicant’s legal representative responded with the assertion that the domestic violence in the Applicant’s and Mr E’s relationship commenced when she first informed Mr E about her refusal to be in a relationship with him, that it has continued and will continue into the future and will not stop if the Applicant returns to Lebanon (T 42.4-42.11).
Counsel for the Minister contended that at the hearing before the Tribunal, the Applicant was asked to expand on all aspects of her evidence, including these claims of violence, but that the basic issue was whether there was a relationship at all and that was clearly put to the Applicant.
Consideration
The principles in SZBEL come into effect in circumstances where the Tribunal considers that there is an issue arising in relation to the decision under review which may be dispositive to its decision, in circumstances where this issue was not identified by the delegate in his or her decision, nor raised by the Applicant or his or her agent, on his or her behalf.
In SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 (“SZTKE”), Justice Bromberg relevantly stated (at [36]):
… More is required than that the Tribunal abstain from positively indicating to an appellant that his or her account will be accepted. More is required than that an appellant be merely given an opportunity to explain himself or herself. So much is evident from the fact that in SZBEL the relevant evidence was “elicited” by the Tribunal without further comment and that, notwithstanding that elicitation, it was held that procedural fairness had not been afforded. There must be something that indicates to the appellant that the issue is live.
His Honour had earlier observed that the Applicant might be put on notice (at [34]):
… in a number of different ways including by the Tribunal challenging what the applicant has said and asking the applicant to explain why his or her account should be accepted. But, that does not require the Tribunal to put to the applicant (in so many words) that he or she is lying or embellishing, nor to disclose what it is minded to decide.
At [46], Bromberg J said:
… In my view, the proposition that merely raising matters is sufficient is irreconcilable with SZBEL. Nor do I think that the words “what you want me to believe,” in context, indicate scepticism. There had gone before those words a series of questions and answers concerning the appellant’s obtaining of a passport, including quite a lengthy answer immediately before the emboldened passage in the Tribunal’s reasons. The emboldened passage, which commences “So what you’re saying,” seems to me to do no more than repeat for the purposes of confirmation what the Tribunal understood the appellant’s evidence to be. Although I accept that the phrase “what you want me to believe” could, in other contexts, indicate that the Tribunal doubted a proposition, I do not think that is the meaning it here conveys. I do not think it expresses doubt, nor asks for amplification, nor invites explanation of why the claim ought be accepted. Indeed, what the question was likely to elicit from the appellant was either an answer in the affirmative (as occurred, with the proffering of additional relevant information), or in the negative so as to indicate that his evidence had been misunderstood. It was not likely to elicit an explanation from the appellant as to why his evidence ought be accepted, and it did not.
Having concluded that the Applicant was not afforded procedural fairness in relation to one of his claims, His Honour proceeded to consider the Minister’s submission that the Court ought to refuse relief because the Tribunal’s operative finding – that the appellant was not of interest to the authorities – was sustainable on other grounds. His Honour observed that there was force in the Minister’s submission regarding the discretion reserved by the Court to refuse relief where it has made a finding that the Applicant was not afforded procedural fairness by the Tribunal. His Honour then proceeded to review the relevant authorities (SZBEL at [51]-[54]). Having set out the reasoning of the Tribunal from its decision record, His Honour concluded as follows (at [57]-[58]):
57. Most of the Tribunal’s findings were unaffected by procedural unfairness. However, procedural unfairness creeps in at the third step of the Tribunal’s reasoning and that arguably infects all subsequent and resultant findings. As the Court said in VAAD (at [79]):
… an assessment of credibility is not necessarily linear. It is possible that had the Tribunal considered the UNP Letter as part of the file received from the Secretary, it may have accepted it as genuine. If so, it is possible that the Tribunal would have been more likely to accept other aspects of the appellants’ account of their experiences in Sri Lanka. As Gleeson CJ commented in Aala at [4]:
‘… Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive …’
58. I think that, had the Tribunal afforded procedural fairness to the appellant consistently with SZBEL, it would probably still have found that the appellant was not of interest to the authorities. It gave many reasons apart from the two affected claims for disbelieving the appellant’s claims, including some that appear have been quite probative. But I cannot say with confidence that the denial of natural justice could have had no bearing on the outcome. It seems to me not impossible that, if procedural fairness had been afforded to the appellant regarding his claims to have been released from the Camp, and to have obtained a passport by payment of bribes, he might have offered a sufficiently convincing explanation in order to be believed by the Tribunal, as he was by the delegate. Although the Tribunal might have decided against him anyway (as, indeed, did the delegate), I cannot say that that was an inevitability. Thus, I cannot accede to the Minister’s submission that I ought to decline relief.
I now turn to consider whether the Applicant was afforded procedural fairness in the sense established in SZBEL.
I am satisfied, having regard to the Tribunal’s decision record, that there were two issues which arose in relation to the decision under review and which were not previously raised. These issues were:
a)whether was there was a relationship between the Applicant and Mr E, as claimed by the Applicant; and
b)whether the Applicant suffered from serious harm at the hands of a Mr E, as claimed by the Applicant.
The Applicant’s claim, evident from her statutory declaration attached to her application for the visa, was that her relationship with Mr E was a romantic liaison. She says that, after she realised he was an Alawi man, she explained to Mr E she did not want a “boyfriend”. Her claim was that, once she told Mr E she just wanted to be friends, he stalked her, assaulted her once and threatened her.
The Tribunal’s findings about the Applicant’s claims regarding a relationship with Mr E are at [28] of its decision record (extracted in full at [13] above). As noted earlier, while the Tribunal accepted that there was a relationship with between the Applicant and Mr E, it did not accept that it was the sort as claimed by the Applicant. The Tribunal further did not accept the Applicant’s claims that she suffered serious harm from Mr E in the past. It is apparent that the Tribunal’s reasons for these findings arose from:
a)identified inconsistencies in the Applicant’s evidence about:
i)the manner in which she found out that Mr E was an Alawi (CB 134-135 at [29]-[30]); and
ii)when she told Mr E she did not want to be with him (CB 135 at [31]); and
b)the Tribunal’s view that it was implausible that the Applicant would have remained ignorant of Mr E’s religious background (CB 135 at [32]).
The Tribunal found that the Applicant’s claim that Mr E had been observed near the Applicant’s sister-in-law and brother’s house not long prior to the hearing was implausible, given that he had taken no other action to locate her or contact her brother until that time (CB 135 at [33]).
Based on country information, the Tribunal did not accept the Applicant’s claims about the power and influence of Alawite’s in Tripoli, nor that Mr E would have behaved in the “aggressive and brazen manner” as the Applicant claimed (CB 136 at [38]). Nor did the Tribunal accept, based on country information and the Applicant’s brother-in-law’s evidence to the Tribunal, that it was plausible that Mr E would have repeatedly entered into a Sunni area to stalk her, choke her in front of neighbours, fire a shot in the air and then a year later stand in front of her relatives’ house on one occasion armed (CB 137 at [44]). The Tribunal found the Applicant’s evidence about what Mr E was prepared to do, illogical. It noted that, on the one hand, the Applicant suggested that Mr E was afraid of her brother, with whom she lived. On the other hand, the Applicant claimed Mr E would do anything in order to marry her (CB 137-138 at [46]-[47]). The Tribunal did not accept the Applicant’s evidence that Mr E would know her brother had cancer and would no longer be afraid of him or of harming her if she returned (CB 138 at [47]).
Accordingly, the Tribunal made its findings at [51] (extracted in full at [14] above).
I have read the whole of the transcript. As is recognised by the authorities, the way in which a Tribunal member may sufficiently indicate to an Applicant that there is an issue with his or her claim which has not previously been raised, will vary. Tribunal members will have different approaches to this task. It is clear that they must strike a balance between putting question or making comments to an Applicant which might suggest the member has already made up his or her mind and engaging in a process of questioning which both elicits an Applicant’s evidence in relation to his or her claims and, if necessary, indicates to the Applicant where there may be concerns about his or her claims, so that the Applicant has an opportunity to respond to these concerns. Focusing on particular extracts of the transcript may not be helpful, as a Tribunal member may return to a particular issue. The Tribunal is not obliged to provide an applicant with a running commentary about what it thinks of the applicant’s evidence (SZBEL at [48]).
Whether a Tribunal has afforded an Applicant procedural fairness will also depend on the individual circumstances of the Applicant. In this case, the Applicant has a reasonable level of education. She was attending university in Tripoli. She relied on an interpreter, however, the transcript reveals a person who was overwhelmingly responsive to the questions asked by the Tribunal Member.
I am satisfied that the Tribunal Member asked questions in a way that sufficiently drew to the Applicant’s attention issues which were later dispositive to its decision.
The Tribunal Member properly commenced the hearing by informing the Applicant that the main focus of his questions would be her claims involving her relationship with and the harm she suffered at the hands of an Alawi man (T 6.43, extracted at [37] above).
The Applicant’s claim was that she was romantically involved with Mr E until she discovered he was an Alawi man. She claims that, upon being made aware of his religious background, she terminated the relationship, whereupon Mr E engaged in acts which caused her harm. A critical claim or integer of claim underlying the Applicant’s claim to fear persecution or significant harm was the Applicant’s claimed ignorance of Mr E’s religious background until she was made aware by a friend of Mr E’s, being Mr M, that he was an Alawi man.
In my opinion, the Tribunal’s questions regarding this critical claim or integer of claim sufficiently conveyed to the Applicant that it was having difficulty accepting the claim:
a)regarding her evidence that Mr M (a Sunni) was a friend of Mr E, the Tribunal Member asked of the Applicant, “why would he [Mr M] get involved…?” (at T 15.39) and “why would he be friends with [Mr E] in the first place?” (at T 16.1); and
b)the Tribunal Member then proceeded to direct questions to the Applicant about her claim that she was ignorant of Mr E’s background, querying “[i]sn’t [their religious background] one of the first things that you would ask someone in Lebanon…?” (at T 16.40). The Tribunal Member later made clear his disbelief regarding the Applicant’s claim to be ignorant of Mr E’s background, stating “I find it hard to believe…” (at T 21.28 set out in full at [48] above) and “… why would [Mr E] want to marry a Sunni girl?” (at T 17.7). Again, the Tribunal Member repeated his disbelief when he said, “… I find it difficult to accept…” that Mr E’s religious background would not have come up in conversation (T 32.9 set out in full at [49] above).
I am satisfied that the Tribunal Member conveyed to the Applicant that an issue for it was the Applicant’s claim that she was ignorant of Mr E’s religious background. This claim was critical to her claim to have entered into and sustained a romantic relationship with Mr E. Consequently, the Applicant was on notice that a live issue for the Tribunal was her claim to have had the relationship that she claimed with Mr E. I should note that, it would logically follow from this that her claims of harm from Mr E were an issue because they depended on his reaction to losing the alleged romantic liaison.
As to the Applicant’s claim to have suffered harm at the hands of Mr E, the exchanges relied on by the Applicant for the submission that the Tribunal Member expressly conveyed to the Applicant it accepted these claims, were, in my opinion, merely exchanges in which the Tribunal Member was eliciting or exploring the Applicant’s evidence about these claims with her. The Tribunal Member’s tendency to follow a response by the Applicant before asking the next question with the use of the word “okay”, was just a question of style and did not convey acceptance of the veracity of her account. It could not be said to convey that the Tribunal Member accepted the Applicant’s evidence. Furthermore, the fact the Tribunal Member summarised the Applicant’s evidence could not be said to convey that he accepted her claim. In my opinion the Tribunal Member drew to the Applicant’s attention the fact that he had issues or concerns with her claims:
a)the Tribunal Member clarified with the Applicant that the incidents where she alleged Mr E attempted to choke her outside her brother’s house, where she alleged Mr E started shooting in the air and drove away, were the same incident (at T 20.1-20.35, extracted in full at [44] above]);
b)after clarifying the Applicant’s evidence regarding Mr E’s conduct (the exchange is set out in full at [42] above), the Member then questioned the Applicant about her claim to have been stalked by Mr E. The Member observed that the streets of Tripoli were narrow and then said, “… so I’m not sure why you’re saying [Mr E] would be stalking you driving around in his car…” (at T 18.46) and “[s]o how would he stalk you if he would – he would get in his car and wait for you somewhere and then follow you down the street? How do you think he was doing this stalking in his car?” (at T 19.8); and
c)the Member then clarified that the Applicant lived in a Sunni area of Tripoli and queried “… as an Alawi [Mr E] was not afraid to drive around the Sunni parts of Tripoli?” (at T 19.27).
I am satisfied that the Tribunal Member conveyed to the Applicant his concern that Mr E could have stalked her in his car and would have entered into and driven around a Sunni area. These concerns were directly relevant to the Applicant’s claim that Mr E attempted to choke her and stalked her.
Towards the end of the hearing, the Tribunal Member then said that there were issues “… that [he] need[ed] to think about. [He] need[ed] to think whether [he] accept[s] them” (at T 31.2). The first issue identified by the Tribunal Member was the Applicant’s claim that she was ignorant of Mr E’s religious background during their relationship. The second issue identified was that the allegation of choking was the only claimed incidence of violence. The third issue was the Applicant’s recent claim that Mr E or people related were waiting outside her relatives’ house (at T 31.1-31.10, extracted in full at [48] above). In respect of the third issue the Tribunal Member said “… I need to think whether I accept that your sister-in-law would have recognised the men…” and “… it seems to me to be a waste of time for them to be stalking you if you haven’t been there for 12 months” (at T 31.27-31.30).
With respect to the Applicant’s claim to fear harm from Mr E if she returned to Lebanon, the Tribunal Member said, having referred to country information, “… I need to think about the ability of an Alawi man to go to an area dominated by Sunnis and kidnap a Sunni girl...” (at T 36.1). Having heard evidence that the Alawi are supported by Hezbollah and Syria, the Tribunal Member said, “… I find it unlikely that Hezbollah or anyone from Syria would get involved in the kidnapping of … a Sunni girl from a predominantly Sunni area in Lebanon” (at T 36.41).
It is clear from these statements that the Tribunal Member was expressing his concern with the plausibility of the Applicant’s claim to fear harm from Mr E on return to Lebanon.
I find that the Tribunal afforded the Applicant procedural fairness on all issues (not previously raised) which were dispositive to the Tribunal’s ultimate findings that the Applicant did not have a well-founded fear of persecution by Mr E or anyone else if she returned to Lebanon, or that there were substantial grounds for believing that she would suffer significant harm if she returned to Lebanon. The Tribunal’s reasoning and findings in respect of the Applicant’s claims are set out at [63] to [65] above. I am satisfied that the Tribunal Member sufficiently drew to the Applicant’s attention that he considered the following to be live issues:
a)the premise upon which her claim that she had a relationship with an Alawi man, Mr E, was based. This premise was her ignorance of Mr E’s religious background;
b)the plausibility of her claims that Mr E stalked her using his car and entered into a Sunni area of Tripoli to assault her and stalk her;
c)his disbelief that Mr E or an associate would attend on her relatives’ house, some 12 months after her departure; and
d)his disbelief that, were the Applicant to return to Tripoli, Mr E, either by himself or assisted by powerful allies, would enter into a Sunni area to kidnap her.
These issues were dispositive to the Tribunal’s decision. However, the Applicant was given an opportunity to respond to these issues during the hearing by giving evidence and making submissions through her legal representative.
Accordingly, I find that no jurisdictional error arises on this ground.
Conclusion
For the reasons set out in this judgment, Orders will be made that the Amended Application for judicial review be dismissed and the Applicant pay the First Respondent’s costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 24 March 2017
1
11
3