MZAKA v Minister for Immigration
[2016] FCCA 37
•13 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAKA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 37 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application for Protection (Class XA) visa – tribunal applied the correct law – considered carefully the claims made before it – no illogicality – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.424AA |
| Minister for Immigration and Border Protection & Anor v MZYTS (2013) 136 ALD 547 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZLWI v Minister for Immigration & Anor (2008) 171 FCR 134 |
| Applicant: | MZAKA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1741 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 26 August 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 13 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nicholson |
| Solicitors for the Applicant: | Bardo & Erci Lawyers |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
The Application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1741 of 2014
| MZAKA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an Amended Application filed on 13 August 2015 wherein the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) dated 25 July 2014. I note the original Application was filed within the requisite legislative time period. The Tribunal affirmed a decision of a delegate of the First Respondent (“the delegate”) to not grant the Applicant a Protection (Class XA) visa (“the visa”).
The grounds set out in the Amended Application are as follows:-
“Ground 1
The Decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect interpretation of the law to the facts as found by the Tribunal.
Particulars
Having determined:
a) the Applicant’s father was detained and tortured, by Syrian security forces at some time in late 1990s after refusing to associate with Syrian backed parties at that time, and subsequently monitored by Syrian security forces during the time they occupied northern Lebanon (paragraph 56(a) of its Statement of Decision and Reason (“the Decision Record”);
b) the Applicant and his family are Sunni supporters of the Future Movement and do not support the Syrian Government or pro-Syrian government political parties in Lebanon (paragraph 56(b) of the Decision Record);
c) the Applicant’s family runs the petrol station in Akkar Province and the petrol station is also the Applicant’s home in Lebanon (paragraph 56(c) of the Decision Record);
d) the Applicant’s father has connections with, and has dealt with, local politicians and community leaders in relation to the provision of services, including access to water and construction materials, in his home area and has helped people in his home by arranging for them to be taken to hospital or to be released from military service (paragraph 68(d) of the Decision Record): individuals in the Applicant’s home area have taken petrol and other goods from the petrol station and have, on occasion, fired shots near and thrown stones at the petrol station (paragraph 56(g) of the Decision Record);
e) the Applicant was seriously injured in a motor vehicle accident in July 2012 (paragraph 56(g) of its Statement of Decision and Reasons (“the Decision Record”); and
f) there is a real risk of the Applicant being subjected to similar conduct as a necessary and foreseeable consequence of his return to Lebanon (paragraph 70 of the Decision Record),
g) The Tribunal erred in holding that the Applicant would not suffer significant harm upon his return to Lebanon.
Ground 2
The Tribunal failed to deal with the full integers of the Applicant’s claim.
Particulars
The Tribunal failed to:
a) Asses the applicant’s claims as an individual;
b) Consider whether the applicant or his family had modified their behaviour as a result of the threat of persecution and/or significant harm;
c) Consider whether the applicant can be reasonably expected to tolerate to (sic) alleged conduct if returned to Lebanon;
d) Consider whether the conduct amounted to significant harm in accordance with the meaning of that phrase;
e) Consider whether the threat of persecution and/or significant harm amounted to a well-founded fear of persecution and/or risk of significant harm.
Ground 3
The Tribunal’s decision that the Applicant did not have a well founded fear of persecution and/or face significant harm was illogical
Particulars
a) it was based on findings or inferences of fact which were not supported by some probative material or logical grounds;
b) it was arbitrary;
c) it was based on private opinion; or
d) it was otherwise contrary to law.
The Applicant relied upon his Amended Application and an Affidavit sworn by Paul Assaad on 25 August 2014. The Applicant further relied upon Amended Written Submissions filed on 13 August 2015.
The First Respondent relied upon Written Submissions filed on 19 August 2015. The First Respondent seeks dismissal of the Application with costs.
There is before the Court evidence as contained in the Court Book filed on 6 March 2015.
History
The Applicant was born in Mech Mech, Akkar province, Lebanon on 23 October 1992. The Applicant is a Lebanese citizen and most recently held a valid Lebanese passport, issued on 29 June 2012 which expired on 29 June 2013.
The Applicant was granted a Subclass 679 sponsored family visitor visa on 25 September 2012, on which he arrived in Australia on 8 October 2012. The Applicant’s visitor visa expired on 8 January 2013. On 13 December 2012 the Applicant applied for a Protection (Class XA) visa (“the visa”). The application was refused by a delegate of the First Respondent on 28 February 2013.
On 20 March 2013 the Applicant lodged a valid application for review of the delegate’s decision not to grant the Applicant a Protection (Class XA) visa. A hearing was conducted before the Tribunal on 8 October 2013. The Applicant was represented in relation to the review by his lawyer and registered migration agent, Mr Nazim El-Bardough, who also attended the hearing. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence at the hearing from two of the Applicant’s sisters, Ms Nizrin Al Hawli and Ms Khaldie El Hawli, and by telephone from the Applicant’s father, Mr Jamal Abdul Rahman El Hawli.
The Applicant provided to the Tribunal a statement typed in English in support of his protection claims which was relevantly summarised by the Tribunal as follows in paragraph 13 of its Statement of Decision and Reasons (“the Decision Record”):-
a)The Applicant’s grandfather owned and ran a petrol station in the area of Wadi El Rihan – Berkayel Cross (“the petrol station”) which is 7 km from the Syrian – Lebanese border. It is regarded as a strategic location for this reason. As a result, the Applicant’s father, his father and the Applicant himself have suffered at the hands of the Syrian intelligence services and their allies including the Syrian Socialist Nationalist Party (“the SSNP”) and the Syrian Ba’ath Party (“the SBP”).
b)The Applicant’s father refused to associate with Syrian backed parties and so was regarded as anti-Syrian. As a result he and the Applicant’s family were constantly and closely monitored by Syrian intelligence groups. They live in constant fear of being harassed or jailed.
c)The Applicant’s father has been politically active and, as his eldest son, the Applicant has been harassed, threatened and abused because of his father’s activities.
d)The most recent incident occurred at 2 pm on 17 July 2012 when the Applicant was riding a motorbike from the station to his grandparents’ village. As he reached the outskirts of a village approximately 30 minutes from his grandparents’ village, a car with four armed men in it followed him and drove closer to him. The men in the car started to swerve the car into the Applicant’s motorbike and he was knocked unconscious. He woke up at a medical clinic. His leg was broken and his whole body bruised. The incident was reported to the police but nothing was done because the Applicant did not recognise the men in the car.
e)The petrol station has been attacked many other times. People have threatened to blow up the petrol station, which frightened the Applicant’s family because they live there.[1]
[1] Refugee Review Tribunal Decision Record dated 25 July 2014 at [13].
The Applicant provided the following documents with the visa application forms:-
a)a copy of the identity, visa and travel evidence pages from his most recently held Lebanese passport;
b)a copy of a document in Arabic together with a certified translation purportedly from an “Ex-deputy and minister” dated 29 October 2012 stating that the Applicant’s father was arrested by the Syrian intelligence services 15 years ago, was badly injured and remained in danger while Syria was present in Lebanon;
c)a medical report from a doctor, together with a certified translation, dated 17 July 2012 stating that the applicant suffered damage to his right leg and trauma to his body as a result of an injury arising from an accidence when he was riding his bicycle and an unknown car hit him; and
d)a letter purportedly from the Mayor of Mech Mech dated 1 November 2012, together with certified translation, stating that the Applicant’s father is a “social activist”, was arrested by the Syrian intelligence services and held for three months and appeared on “Future TV” insulting the killers of President Hariri as a result of which he is in danger.
The Applicant also provided an undated statement typed in Arabic, together with a certified translation, from his father, which was relevantly summarised by the Tribunal at paragraph 15 of the Decision Record as follows:-
a)The Applicant’s father and grandfather suffered a lot at the hands of the Syrian intelligence service and their allies in the SSNP and SBP who would threaten them and take groceries and fuel for free. They would tell them they had to vote for their candidates but the Applicant’s father and grandfather refused because they supported Hariri’s party. They had posters and pictures of Hariri displayed in a shop.
b)They once demanded that the Applicant’s grandfather pay US$100,000 to be left alone but he refused. A short while later, the Applicant’s father was arrested at a Syrian intelligence checkpoint and taken to see a Syrian Army colonel who accused him of being a traitor and a spy. They took him inside, took off his clothes and tortured him. He was held for 15 days. The Applicant’s family went to the minister and deputy who consulted the local municipality president to try to arrange for the Applicant’s father’s release. The Applicant’s father was three days later taken to another place where he was again stripped naked and told by another colonel that he was a traitor and a spy and again tortured using water, electricity and beating. After three months, the Applicant’s father was released so badly injured he was bedridden for a month. He continues to suffer nightmares, anxiety and depression as a result of what happened to him.
c)The Applicant’s grandfather appeared on Future TV insulting Syrian intelligence services for killing Hariri.
d)The Applicant’s father has done his best to get his children out of Lebanon: two daughters have travelled to Australia and another daughter to Canada. Since the Applicant left Lebanon, the security situation in northern Lebanon has deteriorated severely. The Applicant was subjected to many threats and violent incidents because of his father’s political beliefs.
e)The Applicant’s father is a social activist who has influenced people in this region and dealt with regional deputies. The Applicant’s family name is well known. The people of Akkar are accused by Syria of protecting the Free Syrian Army.[2]
[2] Ibid at [15].
On 29 July 2013, the Tribunal received written submissions from the Applicant’s representatives, reiterating the Applicant’s claims and referring to country information in relation to those claims. Attached to those submissions were a new translation of the doctor’s report referred to above which clarifies that the Applicant was riding a motorbike when he was hit by the car and a further letter in Arabic from the former Minister and Member of Parliament dated 13 May 2013, together with certified translation, which repeats that the Applicant’s father has had ongoing problems with the Syrian authorities and was detained and tortured by them, but no longer refers to this taking place some 15 years ago.
The Applicant and his representative sought and were granted time after the Tribunal hearing to provide written responses to the concerns the Tribunal had raised with them at the hearing. On 5 November 2013, the Tribunal received a further written submission from the Applicant’s representative relevantly summarised by the Tribunal in paragraph 47 of the Decision Record as follows:-
a)Country information supports the applicant’s claim that the Syrian intelligence service and army continues to have control over norther Lebanon.
b)The Applicant and his family have been subject to systematic course of conduct by people who are pro-Syrian working for the Syrian regime which began with the taking of petrol and groceries without payment but escalated with demands for payment of US$100,000, the Applicant’s father’s arbitrary arrest and the attempted murder of the Applicant when he was on his motorcycle. The Applicant and his family also face constant threats. These incidents cumulatively amount to significant harm under the Migration Act 1958 (Cth) (“the Act”).
c)It is not reasonable to expect the Applicant to relocate from his home area to Beirut or Tripoli because of the influx of Syrian refugees into Lebanon has significantly increased the cost of living and unemployment rate throughout Lebanon and in Beirut in particular. As a result, the Applicant’s limited resources and lack of social and familiar links outside his home area mean that it is unreasonable to expect him to relocate out of that area because he would be unable to obtain housing or employment even in Beirut or Tripoloi.
d)Country information supports the Applicant’s claim that it is not only those with significant political profiles who face a risk of harm as a result of supporting Hariri and that the Lebanese government would not be able to protect the Applicant from the harm he fears.[3]
[3] Ibid at [47].
The Tribunal’s decision was made on 25 July 2014 and notification of the decision was provided to the Applicant’s authorised recipient on 29 July 2014. That decision was to not grant the Applicant the visa.
The Tribunal’s findings and reasons are correctly summarised in the First Respondent’s Written Submissions from paragraphs 14 to 27. These findings are as follows:-
“14. The Tribunal had significant concerns about the credibility of the applicant’s claims; evidence from the applicant, his father, and his two sisters resident in Australia as to the people whom they feared was found to be vague and generalised, with inconsistencies in the evidence raising further doubts about their credibility.
15. The applicant and his father were unable to identify any of their protagonists by name, or to explain in detail how they knew that these people were supporters of pro-Syrian groups. The Tribunal found that the applicant and his witnesses had exaggerated the difficulties they were having with unruly members of their local community, accepting that these people were refusing to pay for goods and harassing them, but not accepting that these people were connected to pro-Syrian groups.
16. The Tribunal found the applicant’s father’s explanation as to why he had not included reference in his prior written statement to having been warned by people connected to pro-Syrian groups that the applicant and his family would be targeted before the motorbike accident to be implausible. Further, the applicant had not disclosed this information prior to the hearing, which led the Tribunal to conclude these claims of threats had been fabricated, casting significant doubt over the credibility of claims made more generally.
17. The Tribunal accepted that the applicant’s father had been detained and tortured by Syrian security forces 15/20 years ago, but did not accept that the applicant’s father, his grandfather, or the applicant himself, had been targeted for harm by pro-Syrian groups at any time since then. Nor had they been closely monitored or subjected to pressure by such groups since the Syrian forces left Lebanon in 2005, or harmed or threatened as suspected spies for Hariri’s Future Movement or because of the applicant’s father’s dealings with local politicians and community leaders.
18. Documents signed by local politicians and community leaders were given very little weight as the Tribunal considered that it was highly likely that statements included in the documents had been made to bolster the applicant’s protection claims rather than because they were true.
19. Two medical reports concerning the applicant having been seriously injured in a motor vehicle accident were accepted as genuine, but neither report made reference to the applicant’s injuries having been caused by the deliberate actions of the car driver.
20. The Tribunal did not accept that the applicant’s family were threatened with harm unless they paid US $100,000 or any other sum of money to individuals supporting pro-Syrian groups, or that threats had been made to blow up the family’s petrol station.
21. The Tribunal rejected the claim that any member of the applicant’s family had publicly protested about the assassination of Hariri or that the applicant’s grandfather had appeared on TV speaking about the assassination.
22. The Tribunal did not accept that the applicant, his father or his grandfather were members of the Future Movement or any other political party, or that they had publicly expressed support for the Future Movement other than by displaying posters of President Hariri at the petrol station.
23. The Tribunal gave weight to a DFAT report that had found that:
with limited exceptions, non-state armed groups and sectarian militias have generally refrained from targeting communities on the basis of their religious affiliation alone. Rather, sectarian violence tends to be targeted against individuals who express strong political views and are politically active, in addition to being members of a certain religious group.
24. The Tribunal did not accept that the applicant, his father or his grandfather would be perceived as expressing dissent against the Syrian regime in a way that would result in there being a real chance of them being identified by Syrian intelligence or security forces and suffering serious harm as a result.
25. The applicant was found not to face a real chance of suffering serious harm in the reasonably foreseeable future on account of his actual or imputed political opinion as a supporter of Hariri and the Future Movement, or his membership of the particular social group of the family of his father and grandfather.
26. The Tribunal went on to find that there was not a real risk of the applicant suffering significant harm at the hands of pro-Syrian groups.
27. The incidents at the petrol station amounted to nothing more than harassment and casual intimidation by members of the local community, and did not amount individually or cumulatively to any form of significant harm as defined under the Act. While there was a real risk of the applicant being subject to similar harassment and casual intimidation upon his return to Lebanon, the Tribunal found that there was not a real risk that this would amount to significant harm under the Act.”[4]
[4] First Respondent’s Written Submissions filed 19 August 2015 at [14] to [27].
Consideration
The Tribunal correctly noted that at issue in the Applicant’s Application was whether the Applicant had a well-founded fear of being persecuted in Lebanon for reasons of his race, religion, nationality, political opinion or membership of a particular social group and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm. The Tribunal specifically noted the Applicant had made claims based on his actual and imputed political opinion as supporting the Future Movement and being opposed to the Syrian government and pro-Syrian government political parties and, arguably, because of his membership of the particular social group comprising the close family of his father and grandfather. The Tribunal applied the law correctly set out in Appendix 1, put as statutorily required matters to the Applicant under s.424AA of the Act as set out in paragraph 44 of the Decision Record, and carefully considered all of the Applicant’s claims and evidence in light of the independent material referred to in the delegate’s decision, the various submissions from the representative, country information, evidence of the Applicant and his witnesses, and the information set out in Appendix 2 to the decision which is as follows:-
“Appendix 2 – Information from External Sources
98. In accordance with Ministerial Direction No. 56, I have taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Lebanon, 25 February 2014 (the DFAT report) and DFAT Thematic Information Report Sectarian Violence in Lebanon, 18 December 2013.
99. I have also considered:
a. the most recent United States Department of State Country Report on Human Rights Practices for 2012 for Lebanon (the US DOS report), accessible via and
b. the department’s Resource Paper Lebanon: Impacts on the Syria Conflict (issue 25 October 2013) (the Resource Paper).
The Tribunal also noted and accepted the submissions from the Applicant’s representative about the effect of the influx of Syrian refugees into Lebanon on the cost of living and unemployment there. The Tribunal said relevantly in paragraph 69 of the Decision record, as to this claim not expressly put but arising on the material before the Tribunal:-
“While the applicant has not expressly claimed that he faces a real risk of suffering significant harm because of the influx of Syrian refugees into Lebanon, I have considered whether this is the case and, in the country information before me, do not accept that the applicant, when returning to live with his family and receive their support in his home area, faces a real risk of suffering significant harm because of the deteriorating economic situation or the presence of Syrian refugees in Akkar province.”[5]
[5] Refugee Review Tribunal Decision Record dated 25 July 2014 at [68].
The findings of the Tribunal in respect of the Applicant’s particular claims were open to the Tribunal on the evidence before it. Those findings were then combined with the country information before the Tribunal, and the weight given to it by the Tribunal, a matter for the Tribunal solely, to form the basis of the Tribunal’s overall findings. Those findings were based on logical, probative evidence. Grounds one and two of the Amended Application really agitate merits review which is not a function of the Court.
The Applicant made no claims that he or his family in any way modified their behaviour in showing support for Hariri to avoid the claimed harm in Lebanon. It was not a matter for the Tribunal to invent such a claim on the material before it and then go on to consider that the Applicant would become politically active at all, or in the manner described in the DFAT country information, on returning to live in Lebanon.
The Tribunal is not obliged to speculate on claims that did no squarely arise on the material before it and it is not open to the Applicant to reformulate his claims on an ex-post facto basis.[6]
[6] SZLWI v Minister for Immigration & Anor (2008) 171 FCR 134 at [23].
As submitted by Counsel for the First Respondent the Applicant also seeks to challenge the Tribunal’s finding that there was not a real risk that the Applicant would suffer significant harm by reason of harassment and casual intimidation by members of the local community, including refusing to pay for petrol and other goods, firing shots near the petrol station and throwing stones. The Tribunal found that such conduct did not amount to ‘severe pain or suffering or extreme humiliation’ or ‘cruel, inhuman or degrading treatment or punishment’ as it did not accept that the incidents the Applicant described were “anything more than harassment and casual intimidation at the hands of unruly members of [the Applicant’s] local community”. Given this finding, the Tribunal was not required to consider whether the harm was inflicted intentionally (as opposed to negligently) on the Applicant. Such a consideration would have added nothing in the face of the Tribunal’s threshold findings that the harm was not significant harm as defined.[7]
[7] First Respondent’s Written Submissions filed 19 August 2015 at [31] – [32].
The Applicant squarely challenges the Tribunal’s findings of credibility and the weight it gave to various documents supplied by the Applicant in support of his case. The weight the Tribunal gives to such evidence is a matter for the Tribunal itself, as part of its fact-finding function.[8] The Tribunal’s reasoning process does not disclose a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by the Tribunal, as submitted by Counsel for the First Respondent.[9]
[8] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34].
[9] Minister for Immigration and Border Protection & Anor v MZYTS (2013) 136 ALD 547; Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367.
The Application is dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 13 January 2016
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