MZAGW v Minister for Immigration

[2015] FCCA 2857

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGW & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2857

Catchwords:
MIGRATION – Review of Second Respondent’s decision – application for a Protection (Class XA) visa – jurisdictional error – application allowed – declaration made – writs issued – remitted to the Second Respondent.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 424AA

1951 Convention Relating to the Status of Refugees
1967 Protocol Relating to the Status of Refugees

First Applicant:

Second Applicant:

Third Applicant:

MZAGW

MZAGX

MZAGY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1275 of 2014

Judgment of: Judge Hartnett

Hearing date: 29 June 2015

Delivered at: Melbourne

Delivered on: 23 October 2015

REPRESENTATION

Counsel for the applicants: Ms Taylor

Solicitors for the applicants: Bardo & Erci Lawyers

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: Australian Government Solicitor

DECLARATION

The decision of the Second Respondent dated 27 May 2014 was not made according to law.

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. A writ of certiorari issue quashing the decision of the Second Respondent dated 27 May 2014.

3. A writ of mandamus issue remitting the matter to the Second Respondent to consider and determine according to law the application made to it by the Applicant on 3 December 2013 for review of the delegate of the First Respondent’s decision.

4. The First Respondent pay the costs of the Applicant fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1275 of 2014

MZAGW

First Applicant

MZAGX

Second Applicant

MZAGY

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 27 May 2014, the Refugee Review Tribunal (as it then was) (‘the Tribunal’) affirmed a decision of the First Respondent’s delegate (‘the delegate’) not to grant a Protection (Class XA) visa (‘protection visa’) to the Applicant MZAGW and his wife and daughter, the second and third named applicants, whose applications are dependent upon the Application of MZAGW (‘the Applicant’). In essence, the Tribunal did not accept that the Applicant would be subjected to serious or significant harm, amounting to persecution while serving a sentence of imprisonment in what the Tribunal determined would be a military prison upon his return to Lebanon.

2. Before the Court is the Applicant’s Amended Application filed on 29 June 2015, his Initiating Application being filed on 26 June 2014. The Applicant seeks judicial review of the decision of the Tribunal of 27 May 2014. The Applicant relies upon Written Submissions filed on 9 April 2015. The two grounds (as contained in the Amended Application) upon which the Applicant seeks judicial review of the Tribunal’s decision are:-

   a)the Second Respondent failed to exercise its jurisdiction by failing to consider the claim made by the Applicant that he feared persecution as a member of a particular social group, being former soldiers of the Lebanese Armed Forces (‘LAF’) who face imprisonment; and

   b)the Second Respondent wrongly applied the “real chance” test when considering the Applicant’s claims under s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

3. The First Respondent seeks dismissal of the Application. He relies upon Written Submissions filed on 29 April 2015. There is also before the Court, the Court Book filed on 11 March 2015 and the evidence contained therein.

History

1. The Applicant is a citizen of Lebanon. He was born on 14 November 1984 and is aged 30 years. He married the Second Applicant on 16 February 2010, and on the history provided, when he was in Lebanon and she was in Australia. His wife arrived in Australia on 25 November 2009, being the primary holder of a Student (Class TU) (Subclass 572) Vocation Education and Training Sector visa. The Applicant subsequently arrived in Australia on 3 July 2010 as the secondary holder of a Student (Class TU) (Subclass 572) Vocation Education and Training Sector visa granted on 25 May 2010. He was on leave from his employment as a soldier, holding the rank of private, in the LAF. He had been a member of the LAF for many years. The Applicant completed his one year military conscription in 2003/2004. He voluntarily joined the LAF in 2005 and remained a member until at least September 2010. He had sought, and been granted, leave of 60 days. This leave expired around 1 September 2010. He had been part of the Mountain Combat Brigade Unit in the Commando Regiment of the LAF. It was not extended. The Applicant did not return to Lebanon. Instead, he remained in Australia supporting his then pregnant wife who gave birth to their child MZAGY, who was born on 19 March 2011. All of this was accepted by the Tribunal as set out in paragraph 53 of the Decision Record. The Applicant’s daughter is not an Australian citizen or permanent resident of Australia. As a result of her parent’s citizenship of Lebanon, she is entitled to claim citizenship of Lebanon. The Tribunal accepted that Lebanon was the country of reference for the purposes of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (‘the Refugees Convention’), and that it would be the applicants’, and their now two children’s, receiving country for complementary protection consideration.  The Applicant and his wife remained in Australia on a second Student (Class TU) (Subclass 572) Vocation Education and Training Sector visa which expired on 14 June 2013. On 20 March 2013, the Applicant lodged his application for a protection visa.

2. According to country information which the Tribunal discussed with the Applicant, desertion from the LAF is a military crime punishable by a sentence of two to five years imprisonment during peacetime. The Tribunal said, as to the factual circumstances of the Applicant and the applicable law, at paragraphs 55 to 57 of its Decision Record dated 27 May 2014 (‘the Decision Record’):-

   “55. The Tribunal accepts that the applicant has been charged and sentenced pursuant to Article 109 of the Military Judicial Law by a legally constituted Military Court. The Tribunal accepts that the applicant was sentenced on 30 July 2012 to a term of imprisonment of 13 months. The Tribunal considers that the document at folio 47, translation at folio 48 of the DIBP file, is a true record of the sentence. The Tribunal accepts that by virtue of the sentence the applicant is discharged from the military.

   56. The Tribunal stated that it had considered the issue of the laws relating to desertion. The Tribunal noted that such laws were generally applied to any solder (sic) that breached the specified military regulations, with a legally constituted court considering the charge and if proven, sentencing according to a range as designated for that charge. It is well established that the non-discriminatory enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Refugees Convention. The Military Judicial Law, which the Tribunal finds is the relevant legislation, is a law of general application and all members of the Lebanese Armed Forces are subject to it. That such laws apply only to the members of the armed forces and not to the population generally does not render the law discriminatory in a Convention sense. The law in question is applied without discrimination against those members of the LAF who have breached the elements of this provision. The Tribunal further considers that the Judicial Law is not selectively enforced in a discriminatory manner, it is applied in circumstances where a breach has been alleged and is tested by a legally convened court, who some (sic) [come] to a determination based on the evidence.

   57. The Tribunal finds that the Military Judicial Law is a law of general application; and that the applicant will be required to serve his sentence in prison. The Tribunal finds that this sentence does not constitute persecution for a Convention based reason. Further, the Tribunal considers the sentence to be a lawful sanction, and does not consider that the imposition of a sentence of 13 months in jail meets the requisite level of severity necessary to constitute torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment within the meaning of the Act, or that the sentence is inconsistent with any Articles of the ICCPR [International Covenant on Civil and Political Rights].”

Claims

1. In his protection visa application, declared on 15 February 2013, and accompanying statement of 13 March 2013, the Applicant claimed to fear harm arising out of his imprisonment for breaching his military obligations as a soldier in the LAF, as a consequence of poor conditions in Lebanese jails and being placed with members of the Fatah al-Islam (‘FAI’) and other criminals in Roumieh Prison in Beirut.  The Applicant claimed to have been involved in a protracted conflict in 2007 with members of the militant group FAI whilst he was in the LAF. This conflict he referred to as the Nahr al-Bared siege. The Applicant claimed he was directly involved in the conflict which claimed hundreds of lives. Hundreds of Fatah al-Islam fighters were captured and imprisoned.

2. The Applicant also claimed, in part of the submission made by him which accompanied his application and as set out in the Tribunal’s Decision Record at paragraph 22, that:-

   “I will be imprisoned and the risk is not only deprivation of my liberty but also a grave danger to my life and wellbeing. There would be a high risk that I will not survive my jail term. I have real fear that the detainees I referred to above will kill me in the cells.”

   I note the detainees referred to by the Applicant are described by him elsewhere in his submissions and are members of the FAI, outlaws, criminals and detainees who belong to various political and social groups.

3. These claims were repeated in a Submission provided by the Applicant’s migration agent to the delegate dated 14 February 2013 and received on 20 March 2013. The Applicant also claimed that due to the length of his sentence, it was highly probable that he would be placed in Roumieh Prison, a civilian prison. The Applicant argued that he will face a real risk of serious and significant harm by virtue of the requirement to serve his sentence in a civilian prison.

4. The delegate noted the Applicant claimed to fear harm in prison by other imprisoned criminals he had previously fought against. The delegate observed that there was no information or evidence before him to support the assertion or claim that the Applicant would definitely be imprisoned at Roumieh Prison with FAI members. The delegate found that it was more likely that for a sentence of 13 months imprisonment and, as a former member of the LAF, the Applicant would be detained in a military prison run by the military for soldiers convicted of offences under the military penal code. The delegate also considered the Applicant was not involved in the Nahr el-Bared siege as claimed. The delegate considered whether the Applicant would fall into a “particular social group” on the basis that he feared harm in prison by other imprisoned criminals he had previously fought against. The delegate concluded that “former soldiers who will be imprisoned” could not be said to “all share a common characteristic that is innate, unchangeable or one which is fundamental to their identity or conscience. Although members of this group face imprisonment, this was not an innate characteristic fundamental to their identity”.[1]

   [1] UNHCR The UN Refugee Agency GUIDELINES ON INTERNATIONAL PROTECTION: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees HCR/GIP/02/02 (7 May 2002).

5. The delegate, when considering the complementary protection criterion, was satisfied that the harm claimed by the Applicant was significant harm for the purposes of sub-s.36(2A) of the Act. The delegate found, however, no significant grounds for believing that there is a real risk of significant harm occurring to the Applicant in the manner as claimed by him.

The Tribunal

1. Before the Tribunal hearing, the Applicant’s representative provided to the Tribunal a submission dated 18 February 2014, disagreeing with the delegate’s conclusion that “former soldiers who will be imprisoned” cannot be said to be a particular social group. It was submitted that because the Applicant was a commando he would be treated differently to other soldiers, and that his life would be at serious risk, as he would be subject to torture and persecution by other prisoners, especially members of the FAI. It was further submitted, that because the Applicant was no longer part of the LAF, having been convicted and sentenced, they would consider him to be a Lebanese civilian. As a consequence, he would not be imprisoned in a military prison but in Roumieh Prison.

2. The Applicant also provided a letter from a lawyer in Lebanon dated 21 February 2014 to the effect that the Applicant had been convicted and that the Minister of National Defense had the power to determine where a condemned person would attend to serve the sentence. As the sentence was rendered by the Permanent Military Court, the Applicant would certainly be jailed in Roumieh Prison. That prison was of poor condition and the Applicant would be at risk of torture.

3. In a post hearing submission dated 20 March 2014 provided to the Tribunal, the Tribunal hearing occurring on the 27 February 2014, in response to information put to the Applicant at the hearing under s.424AA of the Act, the Applicant stated that there was clear and firm evidence, as provided by the defence lawyer (Mr Zakharia) in Lebanon, that the Applicant would be jailed in Roumieh Prison. He provided a further letter from Mr Zakharia in support, which stated, as set out in paragraph 46 of the Decision Record:-

   “… the Permanent Military Court of Beirut issued a warrant for the applicant. This court has no branches outside of Beirut. The main central prison for Beirut Courts is Roumiyeh Prison, there are no central Prisons in the area of Beirut. Therefore it is axiomatic that if … [the Applicant] is held he will be remanded in Roumiyeh Prison. I would like to reiterate that all military personnel trialled before the Permanent Military Court are jailed at Central Roumiyeh Prison only.”

4. Thereafter, the Applicant’s agent provided a further Submission of 14 May 2014 as to the incarceration of the Applicant in Roumieh Prison in response to information received by the Tribunal from the Department of Foreign Affairs and Trade regarding the Applicant’s claims.

The Decision Record of the Tribunal as to other matters

1. The Tribunal provided a detailed summary of the claims made before the delegate and the delegate’s findings, together with the claims made before the Tribunal.

2. The Tribunal noted that the Applicant claimed he was at risk in the prison environment because he was a commando in a special forces regiment which was involved in a military incident at the Nahr al-Bared refugee camp between May and September 2007, and that it had some issues with the Applicant’s claims about his involvement with the Special Forces and in the Nahr al-Bared siege. The Tribunal also noted that it would consider whether the Applicant would be at risk in the prison environment as a former member of the LAF, as set out in paragraph 58 of its Decision Record. The Tribunal failed however to consider the position of the Applicant as a discharged and therefore former member of the LAF.

3. The Tribunal noted that it had some questions regarding the claim that the Applicant, who had committed a military offence while a soldier in the LAF, would serve his sentence in Roumieh Prison, as opposed to a military prison or detention facility. The Tribunal considered information it had obtained from the Department of Foreign Affairs and Trade, a submission received from the Applicant’s representative and country information about prison conditions in Lebanon. Ultimately, the Tribunal did not accept that that Applicant would be detained in Roumieh Prison, a general prison for criminals. The Tribunal considered that the information provided that the Applicant would be detained in Roumieh Prison was mere speculation and not founded on any objective information. On the evidence before it, such finding was illogical or unreasonable.

4. In response to the Applicant’s submission that it is a strong possibility that the Applicant would be incarcerated in Roumieh Prison, the Tribunal noted, at paragraph 73 of its Decision Record, that the Applicant had been tried and sentenced by a military court for his offence, and a term of 13 months imprisonment imposed. Further, it observed that the Applicant was not on remand, like the vast majority of inmates at the Roumieh Prison and that his criminality was in the military context, and not one of a security nature.

5. The Tribunal found that the Applicant “would be required to serve the sentence imposed upon him in a military prison and not in a general prison”.[2] In particular, the Tribunal found that the risk of the Applicant being placed in a civilian or non-military prison was remote and not a real risk. Again, on the evidence before the Tribunal, this was a finding that was not open to it.

   [2] The Tribunal’s Decision Record dated 27 May 2014 at [74].

6. The Tribunal, in paragraph 77 of its Decision Record, then went on to consider whether the Applicant would be placed at risk of harm in a military prison by any individual being held, after acting against the army or the government, such as the members of the FAI. The Tribunal did not accept that such individuals would be given an opportunity to harm the Applicant given his previous military activity and achievement. It did not accept the authorities would provide militants with the opportunity to harm a soldier who had taken part in a significant military activity against them. The Tribunal considered the risk of the Applicant being placed in such a situation where he would be vulnerable to attack by a militant group in prison was merely speculation on behalf of the Applicant and not something there was a real risk of occurring. But the Tribunal’s reasoning process in this regard was predicated on the Applicant being in a military prison. It did not consider the risk of significant harm to the Applicant on deportation in a civilian prison where there was a lack of acceptance, as submitted by the Applicant’s Counsel, in the Decision Record, of FAI militants being present. The Applicant’s claim, not considered, was to fear harm at the hands of FAI militants. That foreseen and necessary consequence of return to Lebanon was not considered by the Tribunal.  It made no positive findings or denials in respect of this claim.

7. The Tribunal did not accept that the Applicant would be targeted inside prison by corrupt prison officials or would be treated differently because he was a commando.

8. The Tribunal said, at paragraph 84 of its Decision Record, that:-

   “The Tribunal does not accept that while in a military prison, the applicant would be subjected to serious harm amounting to persecution on a discriminatory basis for any Convention reasons.”

9. The Tribunal also considered the Applicant’s imprisonment in a military prison in the context of complementary protection. The Tribunal did not consider that the standard of the prison the Applicant would be required to attend constituted harm that would be of severity necessary to constitute torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment within the meaning of the Act. The Tribunal considered the Applicant did not face a real risk of significant harm for that reason. The Tribunal did not consider the Applicant’s imprisonment in a civilian prison in the context of complementary protection. It failed to consider the claim made.

1. The Tribunal also rejected the Applicant’s claims that the Applicant and his family would suffer a real chance of significant harm by members of FAI on leaving prison and returning to his home region of Lebanon.

2. In respect of the Applicant’s claim of generalised violence in Lebanon, the Tribunal considered the prospect of the Applicant and his family being affected by the violence was remote and speculative and did not accept that there was a real chance or a real risk that the Applicant would be involved in that violence.

Consideration

1. The Applicant argued the Tribunal failed to consider what would occur to the Applicant if he were placed in a civilian jail rather than a military prison, as found by the Tribunal. The Applicant argued this was a wrong finding or presumption made by the Tribunal because the Tribunal presumed the Applicant would be treated as a current member of the LAF rather than as a former member and now civilian. I accept this argument.

2. The Applicant also argued the Tribunal failed to consider whether former LAF soldiers who will be imprisoned are a particular social group. That claim, the Applicant argued, was clearly raised in the material before the Tribunal. I find the claim was raised on the material and not considered. The question as to whether there is a real risk that the Applicant would suffer significant harm upon being imprisoned in a civilian facility and exposed to FAI members was not asked by the Tribunal. Yet it was a necessary and foreseeable consequence of the Applicant’s return to Lebanon.

3. The Tribunal’s finding that the Applicant would face his term of imprisonment in a military prison as opposed to a Lebanese civilian prison, is not supported by the evidence. The Tribunal accepted that the Applicant had been a soldier in the LAF and that by virtue of the Applicant having been sentenced to a term of imprisonment by reason of his breach of Article 109 of the Military Judicial Law, he had been discharged from the military. The Tribunal did not deal with the claim that the Applicant would be at risk in the civilian prison environment as a former member of the LAF and, in particular, the risk the Applicant would suffer harm by reason of his status as a commando in the LAF.

4. In response to information obtained from the Department of Foreign Affairs and Trade which was put to the Applicant pursuant to s.424A of the Act, namely, that given the Applicant’s involvement in fighting at the Nahr al-Bared siege it would be unlikely that he would be placed in a prison where FAI members had been incarcerated, the Applicant submitted that:-

   a)the refusal of the Judge to specify where the Applicant would be incarcerated suggested that it was a strong possibility that the Applicant would be incarcerated in Roumieh Prison; and

   b)as the Applicant was no longer part of the LAF, having been convicted and sentenced, he would be considered to be a Lebanese civilian and no longer considered to be a soldier. He would not be imprisoned in a military detention centre.

5. The Tribunal expressly rejected the Applicant’s claim that he would be incarcerated in Roumieh prison rather than a military prison or detention centre. There was no proper basis for this finding.

6. Having determined that there was no real risk that the Applicant would be placed at risk of harm in a military prison by any individual being held after acting against the army or the government, such as members of the FAI group, the First Respondent argued it was not necessary for the Tribunal to identify a particular social group. However, the necessary preliminary factual finding was flawed.

7. Having found that the Applicant was likely to serve his sentence of imprisonment in a military prison, the Tribunal did not consider that the standard of the prison that the Applicant would be required to attend constituted a harm that would be of severity necessary to constitute torture, cruel or inhuman treatment or punishment; or degrading treatment or punishment within the meaning of the Act. As a consequence, the Tribunal considered that the Applicant did not face a real risk of significant harm for that reason. But again the factual premise was illogical and unreasonable and thus the necessary consideration by the Tribunal of whether, if sent to a civilian prison, the Applicant would suffer significant harm, was not undertaken.

8. The Tribunal did not consider whether the Applicant would be subjected to the harm feared if he were imprisoned in a civilian prison; the Tribunal simply stated that it did not believe that he would be imprisoned in a civilian prison. When dealing with the Applicant’s submission that anti-government insurgents would be found in any prison, and that members of the FAI could be incarcerated in all prisons in Lebanon, not just Roumieh Prison, the Tribunal only rejected the assertion that FAI militants would be found in military prisons.

9. The Applicant submitted to the Tribunal that if he were imprisoned in a civilian jail, he would be harmed or killed by FAI militants. The Tribunal did not deny, or make any positive findings, in relation to that claim.

10. The Applicant submitted that the communication from the Department of Foreign Affairs and Trade provided no certainty as to where the Applicant might be imprisoned. I accept that submission.

11. The Applicant’s exposure to a risk of harm, that risk being imprisoned in a civilian jail with FAI fighters, and the harm being tortured or killed by them was a necessary and foreseeable consequence of his return to Lebanon that ought to have been considered by the Tribunal.

12. The application shall succeed and costs will follow the event.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  23 October 2015