MZXBV v Minister for Immigration
[2006] FMCA 1047
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1047 |
| MIGRATION – Protection visa – whether jurisdictional error – whether failure to take into account relevant matter. |
| Migration Legislation Amendment Bill (No. 6) 2001, s.91R |
| W396/01 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 455 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 |
| Applicant: | MZXBV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 778 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| Solicitor for the Applicant: | Ms G. King-Siem |
| Solicitors for the Applicant: | Georgia King-Siem |
| Counsel for the Respondents: | Mr R.C. Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 778 of 2005
| MZXBV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 8 September 2004. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant has relied upon an Amended Application filed 24 November 2005.
Background
The Applicant is a citizen of Lebanon. He was engaged to an Australian citizen in Lebanon on 27 July 2002. The Applicant was born in 1978. He arrived in Australia on 22 January 2003 as the holder of a prospective marriage (temporary) visa. Whilst there appeared to be some dispute about whether the Applicant had ever married, it now seems to be common ground that he had not formally married his fiancee. It is, however, common ground that the relationship between the Applicant and his former fiancee broke down after his arrival in Australia.
On 17 October 2003 the Applicant lodged with the First Respondent's Department an application for a protection visa. It is relevant to note that in that application, when asked the question, "Why did you leave that country?" the Applicant states:
“I came to Australia on a prospective marriage visa, after my arrival, my relationship broke down due to Domestic Violence situation committed by my finance. I am not able to go back to my country because of community humiliation and rejection. I would be denied to be engaged into other marriages because of the breakdown of my previous relationship. Religiously, I would be executed for the above reason. I fear for my life from the family and relatives of my ex-finance back in Lebanon (sic). …”
(Court book page 7)
The application for a protection visa was then supported by further documentary material which again significantly included a complaint and summons for an intervention order, which appears to have been dated 2 May 2003 and was issued in the Heidelberg Magistrates Court. That complaint and summons for an intervention order refers to the Applicant as the complainant and significantly refers to the defendant as the Applicant's former fiancee.
In that complaint and summons the Applicant gives a brief outline as to why an intervention order is needed and of each incident, including the date and place where it happened, in the following terms:
“I AM A VICTIM OF DOMESTIC VIOLENCE COMMITTED BY MY FIANCEE ... AND HER FATHER. I HAVE BEEN IN A RELATIONSHIP WITH HER FOR 10 MONTHS. THEY HAVE CONSTANTLY HARASSED ME, CALLING ME NAMES AND TAKING MY CONFIDENCE AWAY. THEY HAVE BEEN THREATENING TO SEND ME BACK TO LEBANON. SHE HAS PHYSICALLY AND MENTALLY TORTURED ME. THEY HAVE THROWN ME OUT OF THE HOUSE ON TO THE STREETS SEVERAL TIMES AS IF IT WERE A JOKE. DURING MARCH I WAS PHYSICALLY KICKED OUT OF THE HOUSE, PUSHED AND SLAPPED AROUND. I WAS ALSO THREATENED THAT I WOULD BE FOLLOWED AND HIT WHEN CAUGHT OR CONFRONTED IN PUBLIC. I HAVE BEEN PUSHED IN THE BACK AND SLAPPED ACROSS THE FACE BY HER FATHER.
I AM AFRAID THEY WILL SEND SOMEONE TO PHYSICALLY HURT ME OR GET IN CONTACT WITH ME IN PUBLIC. I AM AFRAID TO SLEEP, WORK OR GET OUT IN PUBLIC AND BE SEEN.’
(Court book page 29)
There does not appear to be any further material indicating the outcome of that application, which of its nature is heard on an ex parte basis on the day the complaint was issued. In any event, a delegate of the First Respondent refused to grant the Applicant's protection visa. For reasons which will become apparent, in considering the Amended Application it is relevant to note that the delegate, under the heading "Claims" in the decision record (Court Book page 40), states the following:
“6.1.1The applicant states that he came to Australia as a prospective spouse however the marriage did not proceed due to domestic violence on the part of his then fiancee. He states he cannot return to Lebanon due to the community humiliation he would face and as he would be unable to arrange another marriage due to the failure of his relationship. He states that he fears harm at the hands of the family of his ex fiancée and that he has received threatening telephone calls from her family members. He also states that he will face 'religious execution' because of his failed marriage arrangement.
6.1.2The applicant states that he cannot return to Lebanon because he escaped from the Lebanese army. He also states that he is opposed to the Lebanese government and fears he will be killed because of his views.”
In my view it is also relevant to note under the heading "Reasons" the delegate refers to the background material and then states the following:
“6.2.2.I consider that the applicant’s fear of harm or mistreatment in Lebanon is not a result of his Race, Religion, Nationality or Political Opinion , which reflects four of the convention grounds in the UN Convention on Refugees and the guidance provided in the UNHCR Handbook. I have given consideration to the category of Membership of a Particular Social Group to assess whether the applicant’s claims can be properly defined under this category. His primary reason for fearing harm in Lebanon is based on his personal circumstances, that is his intended marriage in Australia did not eventuate and he fears harm at the hands of his ex-fiancée’s family members in Lebanon. I do not accept that this set of circumstances can be properly described as coming within a Particular Social Group, the difficulties he anticipated he will encounter in Lebanon by the claimed act of persecution there must be a nexus to the Convention. I accept that he will face persecutory treatment for reasons of Membership of a Particular Social Group.
6.2.3To find that a particular social group exists, the group must be cognisable or recognisable as to have something that may be sensibly identified as membership in society. A group of cognisable if there is some real common or binding element of persons because of shared social characteristics and or/shared interests or experiences in common. A group is not cognisable where the sole criterion defining the group is a common act. A crowd is not a social group and numerous individuals with similar characteristics do not make up a social group, there must be a common unifying element binding the members together. When a member of a social group is being persecuted for reasons of membership of that group, he is being attacked not for himself or what he owns or has done, but by virtue as being seen as member of the group.”
The delegate, after considering the reason for the Applicant's fear of returning to Lebanon as not being Convention related, made reference appropriately to s.91R of the Migration Legislation Amendment Bill (No. 6) 2001 and ultimately then further deals with whether the Applicant has a well-founded fear of persecution. The delegate then states:
“6.2.6I do not accept that the applicant has a well founded fear of persecution at the hands of the Lebanese authorities, however I accept he may face some emotional and social difficulties due to his failed marriage arrangement. He claims that he will be unable to arrange another marriage in Lebanon because of his failed relationship. Whilst there may be individuals who may be reluctant to enter a relationship with him should they become aware of his previous failed marriage arrangement, I do not accept that this necessarily indicates that he will be unable to arrange a marriage in the future. In any case, difficulty in finding a suitable marriage partner does not come within the Refugee Convention.
6.2.7.The applicant states that he fears harm at the hands of his ex fiancées family members and claims to have received threatening phone calls. Whilst the family of his ex fiancée may be displeased with his decision not to proceed with the planned marriage, his fear of harm in this case does not come within the Refugee Convention . I consider that given his ex fiancée and most likely some of her family members reside in Australia he is just as likely to face their displeasure in Australia as in Lebanon. I note the applicant’s claim to fear ‘religious execution’ because of his failed marriage arrangement, however I do not accept his claim in this respect. There is no plausible basis or reliable information which would support his claim to fear execution or any other form of mistreatment at the hands of religious leaders or adherents in Lebanon.”
As noted, the delegate refused the application for a protection visa. The Applicant then applied to the Tribunal for review of the delegate's decision. The Tribunal conducted a hearing on 24 August 2004 and ultimately produced a decision dated 8 September 2004 affirming the delegate's decision to refuse to grant a protection visa.
The Amended Application
In the Amended Application the Applicant sets out the Grounds of the Claim as follows:
“In making the Decision, the Tribunal acted without jurisdiction or in excess of jurisdiction in that it:
(a) failed to take into account relevant considerations.
PARTICULARS
(i)The Tribunal failed to take into account a relevant consideration, namely the risk to the Applicant being persecuted upon his return to Lebanon by reason of race and religious beliefs (Alawi Muslim).
(ii)The Tribunal failed to take into account a relevant consideration namely the risk to the Applicant being persecuted upon his return to Lebanon by reason of his political opinions (Secularism).
(iii)The Tribunal failed to take into account a relevant consideration namely the risk to the Applicant being persecuted upon his return to Lebanon by reason of his membership of a particular social group (men victim to domestic violence and failed marriages).
(iv)The Tribunal failed to take into account a relevant consideration namely the domestic violence against the Applicant by the Applicant's fiancee;
(b) took into account irrelevant considerations.
PARTICULARS
(i)The Tribunal took into account an irrelevant consideration namely that his race (Alawi Muslim) did not make him a target for persecution in Lebanon;
(ii)The Tribunal took into account an irrelevant consideration; namely that the harm done to him in the past because of his political beliefs did not support a fear of persecution due to his political beliefs.
(iii)The Tribunal took into account an irrelevant consideration; namely the risk of harm faced by those belonging to a social group misunderstood and despised by most Lebanese.
(iv)The Tribunal took into account an irrelevant consideration namely that since the Applicant feared harm in Australia, his fear of harm in Lebanon was not well-founded.”
The Tribunal's Decision
In its decision the Tribunal, under the heading "Findings and Reasons," accepted the Applicant is a Lebanese citizen. It then referred to what it described as the Applicant's "conflicting claims as to whether he is a Muslim or a Christian". After referring to what it describes as the "unconvincing nature of his evidence in relation to his claims to be a Christian", the Tribunal found that "such claims lack in credibility". The Tribunal went on to state that it found that, "the Applicant is not a Christian and further find that he is a Muslim Alawi as claimed". Based on its finding the Applicant is not a Christian, the Tribunal found the Applicant has not experienced any harm in the past in Lebanon on the basis of his alleged Christianity.
The Tribunal then further refers to what it describes as the Applicant's "brief claims that he suffered problems in the past in Lebanon because of his race as a Muslim Alawi". It states:
“The applicant has made some brief claims that he suffered problems in the past in Lebanon because of his race as a Muslim Alawi. The applicant highlighted that Alawis are a minority group and are subject to discrimination in employment and suggested that he had been taunted for being an Alawi when he served in the armed forces. However the applicant clearly indicated that he was able to successfully run a business for many years in Lebanon before he came to Australia, only selling his business in order to move here. Based on this evidence I find that the applicant has not suffered any harm or discrimination in employment because he is a Muslim Alawi. I also find that the taunts he received during his army service, although hurtful, do not constitute the type of harm that would be considered serious harm that would amount to persecution for the purposes of the Convention. Based on all of the above I find that the applicant has not suffered any serious harm in the past in Lebanon because of his race as a Muslim Alawi.”
Other claims were dealt with in relation to the suggestion by the Applicant that in the past his family has suffered harm because various groups demanded money from his father and his father was forced to pay the money to protect himself, his family and business interests. Reference was made to the Applicant's political involvement. After analysing the political activities of the Applicant, and in particular the claim that the Applicant suffered harm as a result of his involvement in campaigning for a Member of Parliament, the Tribunal concludes the following:
“ … Based on all the above I am not satisfied that these incidents, as claimed by the applicant, amount to systematic and discriminatory conduct of the type that would constitute serious harm amounting to persecution for the purposes of the Convention. I therefore find that the applicant has not suffered any serious harm that would amount to persecution because of his political opinion in the past in Lebanon.”
In dealing with the specific claim concerning the breakdown of his relationship with his fiancee and domestic violence, the Tribunal then significantly states the following at Court Book page 91:
“The applicant claimed in his application for a protection visa that he feared that if he returned to Lebanon now or in the reasonably foreseeable future he feared that he would suffer community rejection and humiliation, would be denied the opportunity to become engaged or to be married, would face religious execution and would humiliate his family because of the breakdown of his relation with his former fiancée in Australia. When asked about these claims at the hearing the applicant claimed he had no knowledge of the claims made on his behalf by his solicitor in his application form. When given the opportunity to consider these claims and to indicate whether he actually had such fears the applicant did not claim that he held such fears and instead indicated that the harm he feared was from the father of his former fiancée. The applicant did indicate that his mother would be disappointed on his behalf because she wanted him to start a new life in Australia which is an understandable reaction but he did not indicate that he feared any harm as a result of his mother’s disappointment. Based on the evidence at the hearing I find that the applicant has no subjective fear that he would suffer community humiliation and rejection, would be denied the opportunity to become engaged or to be married, would face religious execution or would humiliate his family if he returned to Lebanon today or in the reasonably foreseeable future.
The applicant has claimed that he fears harm from the father of his former fiancée if he returned to Lebanon. The applicant has indicated that he was subjected to violence from the father of his former fiancée when he was living in this man’s house in Melbourne, Australia and has provided evidence to the Tribunal that he has applied for an Intervention Order against this man in the Magistrates’ Court. The applicant has indicated that the reason why he fears harm from this man is because this man will seek revenge on him for the breakdown of the engagement between the applicant and his daughter and because the applicant sought legal action against him for the violence inflicted upon him. I accept that the relationship has broken down as claimed by the applicant and I accept that the applicant was subject to domestic violence from his former fiancée’s father as claimed. However the type of harm suffered by the applicant was not for any essential and significant reason that was related to the Convention. Revenge for the breakdown of an engagement and revenge for reporting a person to the authorities for domestic violence are not Convention related grounds. The applicant has made a vague claim that his former fiancée’s father may want to harm him because this man is a religious extremist who did not like the applicant drinking beer in his home. He has also made some claims that this man does not like the applicant because they have political differences relating to the role played by Syria in the governance of Lebanon. However based on the evidence that the applicant provided at the hearing it was apparent that these political and religious differences, although resulting in some disagreement between the parties, did not motivate the former fiancée’s father to harm the applicant in any way. It was apparent from the evidence of the applicant that the harm he feared was because of the breakdown of the relationship and the subsequent reporting of the domestic violence to the police, not because of any political or religious disagreements. Based on all of the evidence that the applicant provided at the hearing I find that the essential and significant reason that the father of the applicant’s former fiancée sought to harm the applicant was not for any political or religious reason but because of the breakdown of the relationship between the applicant and this man’s daughter and because the applicant reported this man to the authorities in Australia for the domestic violence inflicted upon the applicant. These reasons are not related to the Refugees Convention. I therefore find that any harm the applicant may claim to fear from the father of his former fiancée is not for a Convention related reason.”
The Tribunal, otherwise having rejected the Applicant's claim, further proceeded to deal with a claim that the Applicant feared harm if he returned to Lebanon because he was an army deserter and more general, non-specific claims that he would be subject to racial or political harm if he returned to Lebanon. It found that the Applicant was -
“ … never subject to any serious harm because of his race or because of his political opinion in the past in Lebanon. Based on this finding I now find that the applicant would not be the subject to any serious harm because of his race or because of his political opinion if he returned to Lebanon now or in the reasonably foreseeable future.”
(Court Book page 94)
Significantly, the Tribunal also made the following finding:
“The applicant has claimed that he fears that the father of his former fiancee would convince the Lebanese authorities to send the applicant to the Syrian border where the Applicant would feel unsafe. Despite asserting this as a fact, the applicant has provided no evidence to indicate that this man has any power to influence such a decision nor has he provided any evidence to indicate that the Lebanese government forcibly redirect their citizens to live in any place that the citizens do not desire to live in. It is difficult to conceive that a man living in Melbourne, Australia with no formal connexion to the Lebanese authorities would be able to direct them to commit such an act. …”
(Court Book p. 94)
The Tribunal then refers to country information specifically relating to the issue of whether the Lebanese government forcibly resettle citizens.
Submissions and Reasoning
Failure to take into account relevant considerations
The Applicant submitted that when dealing with the Applicant's race and religion, the Tribunal had failed to take into account relevant considerations and therefore committed jurisdictional error (see W396/01 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 455 at [38-39]).
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
During the course of submissions both parties had referred to the decision of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 (NABE) and in particular the following paragraphs:
“58 The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
…
60 In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
61 In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’”
Alawi Muslim – ethnicity and religious beliefs
Counsel for the Applicant conceded that a correct reference to this issue should include the word “ethnicity” in lieu of “race”. It was submitted on behalf of the Applicant that in this instance, whilst the Tribunal accepted the Applicant was an Alawi Muslim, it failed to consider how belonging to such an ethnic group would affect the Applicant should he return to Lebanon. It was submitted that Alawites are the smallest minority in Lebanon and are often mistakenly associated with Syria due to the fact that Alawites comprise 11 per cent of the population in Syria and many hold positions within government.
It was claimed that Alawites are subject to systematic discrimination and further argued the Applicant had been a victim of harassment and low-level violence for many years. In relation to this issue, reference was made to the Applicant facing further violence by reason of his ethnicity and it was argued the Tribunal failed to consider what form of persecution the Applicant may face by virtue of being an Alawite. It was argued by failing to do so the Tribunal failed to take into account a relevant consideration.
The First Respondent in relation to this specific issue submitted that there was no jurisdictional error and further, on a proper reading of the Tribunal's decision, it did take into account the issue of the Applicant suffering in the past in Lebanon because of his ethnicity as a Muslim Alawi.
In my view, on this issue the First Respondent's submissions are correct. As noted in the extract of the Tribunal's findings and reasons, it made reference to what it described as the Applicant's "brief claims that he suffered problems in the past in Lebanon because of his ethnicity as a Muslim Alawi". It then went on to make a finding concerning the Applicant's past conduct and specifically found, as it was open to find, that the Applicant was able to successfully "run a business for many years in Lebanon before he came to Australia, only selling his business in order to move here". It then made findings in relation to this specific issue which in my view were reasonably open to it and free of any jurisdictional error.
In relation to the issue of the Applicant's religion which to some extent is associated with both the claim by the Applicant of being a Christian and, in the alternative, the religion attributed to him by virtue of being an Alawi Muslim, it was submitted that in this instance the Tribunal should have had regard to the fact that Alawi Muslims, although closest to the Shiite Muslims, share many similarities with Christian faiths. It was argued the mix of characteristics has led to their rejection by most Muslim and Christian faiths. It was further argued the Applicant's claim that he was Muslim and then Christian was consistent with being an Alawi Muslim.
By failing to consider the religious beliefs, the Applicant submitted the Tribunal failed to consider any persecution he may face on religious grounds should he return to Lebanon. Reference was made to a US State Report which I accept for the present purposes was available to the delegate and therefore would be available to the Tribunal. It was argued that as a religious minority displaying characteristics of Islam and Christianity, Alawites are "caught in the middle". This then makes them a target for both major groups, that is, Muslims and Christians, and the Tribunal, by failing to consider the nature of the Applicant's religion and the religious tensions in Lebanon, made a jurisdictional error.
The First Respondent submitted that in this instance the Tribunal made an adverse finding in relation to his claim of being Christian. It was argued that the Applicant now seeks to present a new claim of religious persecution purportedly arising out of his status of Muslim Alawi. It was submitted that in this instance the Tribunal correctly referred to the Applicant as having at one point claimed that he was either Christian or Muslim and that there was no indication before the Tribunal that the Applicant claimed to fear persecution by reason of his Muslim religion. It was submitted that the Applicant's arguments on this issue involved what is described as impermissible reagitation of the merits of the Tribunal decision and do not provide any basis for judicial review.
In my view, on the issue of religious beliefs the First Respondent's submissions are correct. It is clear again from the extract of the Tribunal's findings and reasons that it made a significant adverse finding in relation to what is described as the conflicting claims of the Applicant as to whether he is a Muslim or a Christian, ultimately and specifically regarding the evidence, including the Applicant's willingness to choose to swear upon the Koran and tell the Tribunal he was a Muslim, and then the explanation that he only did so because he was listed as Muslim on his passport.
Further reference was made to other material which does not need to be recited in this judgment, but it is sufficient to note that that reference to the other material ultimately led to the adverse conclusion which I am satisfied is free of jurisdictional error. I accept the further arguments in relation to this issue and in particular arguments now sought to be based upon the Applicant being an Alawi Muslim cannot be sustained. The submissions advanced for and on behalf of the Applicant in relation to this issue in my view require the Court to examine in fine detail the Tribunal’s reasoning as it is now suggested that the Tribunal failed by not pursuing further the question of the Applicant being an Alawi Muslim having rejected that he was a Christian. I do not regard that failure, if it be a failure on the part of the Tribunal, as being sufficient to provide a basis for jurisdictional error as the Tribunal has substantially dealt with the religious claim and the “Alawi” element in a manner free of jurisdictional error. When reaching its conclusion that the Applicant had not suffered any harm or discrimination in employment because he is a Muslim Alawi the Tribunal was entitled to place weight on the material which established that the Applicant had successfully run a business for many years in Lebanon before he came to Australia and that he only sold his business in order to move to Australia.. Though it is noted that during the course of oral submissions Counsel for the Applicant suggested that this was a reference to past events, I do not accept that that of itself reveals any error as the past persecution may well be relevant in considering whether there is a prospect of future persecution should the Applicant return. Prior treatment in my view is also relevant when considering the issue of “serious harm” against the backdrop of what might otherwise be described as instability in Lebanon. I see no error in the Tribunal’s reasoning process in relation to this issue. It is not a matter for the Tribunal to speculate on other possibilities which may follow its rejection of the Applicant’s claim to be a Christian notwithstanding the suggested overlap between Alawi Muslim beliefs and Christian beliefs. The Tribunal did have regard to relevant material concerning Alawi Muslims. I do not accept that it misunderstood the claim in this respect.
Political opinions
The Applicant submitted that in relation to political opinions the Tribunal's decision, by failing to recognise the harm suffered or take into account threats made against the Applicant, constituted jurisdictional error. It was argued the Tribunal's conclusion that the harm suffered by the Applicant was minor and did not amount to persecution was contrary to the evidence. It was further argued that the Tribunal did not consider the harm the Applicant would suffer from a regional government rather than from the Lebanese government.
The First Respondent submitted that in this instance the Tribunal has made a finding in relation to the Applicant's political opinion based upon its assessment of the political environment and the Applicant's claims. Its finding that it did not accept that the harm suffered by the Applicant amounted to persecution within the meaning of the Convention was a finding open to the Tribunal and free of jurisdictional error.
In my view, having regard to the extract set out earlier in this judgment concerning the political activity of the Applicant, and in particular the further material which appears in the Tribunal's reasons where it deals in some detail with the claims by the Applicant, there is no basis upon which it could be concluded that there is any jurisdictional error arising out of this part of the Applicant's claim before this court.
Any persecution arising from a regional rather than a central government whilst perhaps not specifically considered by the Tribunal, does not of itself provide a basis for concluding that there is jurisdictional error. The Tribunal considered the claim in clear terms and had regard to relevant issues concerning the Applicant’s business and other matters. When assessing the Applicant’s political opinions it also made a clear assessment of the Applicant’s involvement in politics in Lebanon and found his evidence was not “entirely convincing given that he was unable to name the political party” or a particular individual or to “identify the years in which he campaigned for this person despite claiming to have placed campaign posters in his shop for this person and despite claiming to have suffered harm as a result of campaigning for this person”. The Tribunal also dealt with documentary evidence which at least led the Tribunal to conclude that the Applicant was involved in supporting the canditure of the particular person. The Tribunal then found other incidents complained of were consistent with what it describes as “a very robust and often heated political climate that prevails at election time in many countries including Lebanon”. It made a finding of fact reasonably open to it free of jurisdictional error as to the seriousness of the threats against the Applicant and the extent and nature of damage to the Applicant’s motor vehicle. It ultimately reached a conclusion reasonably open to it that the incidents did not amount to systematic and “discriminatory conduct of the type that would constitute serious harm amounting to persecution for the purpose of the Convention”. (Court Book page 91)
Particular social group
Perhaps more significantly, the Applicant further relied upon membership of a particular social group referred to in the application as "men victim to domestic violence and failed marriages" (sic) or referred to in the course of the hearing as males who are "subject to failed relationships and domestic violence". It was argued that the Tribunal failed to consider this claim squarely raised by the Applicant. It was noted that the Tribunal accepted the Applicant was the victim of domestic violence by his fiancée’s father. So much is clear from the extracts set out in paragraph 14 of this judgment and in particular that part of the Tribunal’s reasons where it states that it accepts “that the Applicant was subject to domestic violence from his former fiancée’s father as claimed”.
Moreover, it was submitted that the Tribunal failed to consider the principles which would apply when considering the issue of a social group and whether membership of that group might of itself, upon the Applicant's return to Lebanon, provide a basis upon which the Applicant could assert conclusively that for a convention reason, membership of that particular social group would provide a basis upon which a protection visa should be granted.
During the course of the Applicant’s submissions, reference was made to the conclusion of the delegate set out earlier in this judgment (paragraph 6.2.2 and 6.2.3 of the delegate's decision; see [7] of this judgment). Counsel for the Applicant argued that this application is similar to the circumstances in Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1. It was argued that case established that persecution under the Convention is composed of two elements namely serious harm or fear of serious harm and a failure of the State to afford protection. It was argued that the failure to afford protection to the Applicant is related to a Convention reason namely his membership of a particular social group which it was submitted was scorned and isolated in Lebanese society.
It is relevant in considering these submissions to set out the further extract from the Tribunal’s decision where it appears to deal with, at the very least, the failed relationship issue when the Tribunal states at Court Book page 91:-
“The applicant claimed in his application for a protection visa that he feared that if he returned to Lebanon now or in the reasonably foreseeable future he feared he would suffer community rejection and humiliation, would be denied the opportunity to become engaged or to be married, would face religious execution and would humiliate his family because of the breakdown of his relation with his former fiancée in Australia. When asked about these claims at the hearing the applicant he had no knowledge of the claims made on his behalf by his solicitor in his application form. When given the opportunity to consider these claims and to indicate whether he actually had such fears the applicant did not claim that he held such fears and instead indicated that the harm he feared was from the father of his former fiancée. The applicant did indicate that his mother would be disappointed on his behalf because she wanted him to start a new life in Australia which is an understandable reaction but he did not indicate that he feared any harm as a result of his mother’s disappointment. Based on the evidence at the hearing I find that the applicant has no subjective fear that he would suffer community humiliation and rejection, would be denied the opportunity to become engaged or to be married, would face religious execution or would humiliate his family if he returned to Lebanon today or in the reasonably foreseeable future.”
It was submitted that that extract reveals that the Tribunal stopped short “of going into whether he was a member of a particular social group at all and rather focused on the fact that his fear of persecution … was related to ex fiancée’s family rather than for a Convention reason.”
The First Respondent submitted that the Applicant had not referred in the application form to the claim that he had experienced domestic violence at the hands of his former fiancée as well as her father. Reference was made to the extract from the Tribunal decision concerning that issue set out in paragraph [38] above. It was submitted that the Tribunal was not obliged to address the Applicant’s claims on the basis of his status as a divorced Lebanese man who had been subjected to domestic violence by his former spouse nor was it required to consider him as a person whose relationship had broken down as a result of domestic violence and was therefore a member of a particular social group in Lebanon. No claim had been made of fear of persecution for reasons of membership of a particular social group on the material submitted by the Applicant. The Applicant neither expressly or impliedly claimed that he feared persecution by reason of his membership of a particular social group. Accordingly the Tribunal was not obliged to deal with the claims which have not been articulated and did not squarely arise on the material then before the Tribunal (see NABE [60] – [61]). It was submitted that consideration of the Applicant’s claims and evidence before the Tribunal did not disclose any specific claim concerning the existence of a particular social group. There was no evidence before the Tribunal to suggest that men whose relationships had broken down as a result of domestic violence formed a class of people “identifiable by a characteristic or attribute common to all members of the group which “distinguished them from society at large” (see Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 241- 243, 263 and 285-286).
In the alternative it was submitted that the Tribunal considered whether a man whose relationship had broken down as a result of domestic violence faced a real chance of persecution for any Convention related reason if he returned to Lebanon in the reasonably foreseeable future. By making its findings the mistreatment of the Applicant by his former fiancée’s father was motivated by personal reasons such as revenge for the breakdown of his daughter’s engagement and for the Applicant reporting him to the authorities for domestic violence. The Tribunal had considered the issue and addressed the likelihood that the Applicant would be targeted by his former fiancée’s father for any Convention related reason including his membership of a particular social group.
The First Respondent submitted in relation to the issue of particular social group that the Tribunal had considered the claim ultimately put by the Applicant. Specifically it was submitted that the Applicant appeared to have abandoned the broader claim which appeared in the application and did so in the passage referred to earlier in this judgment where the Applicant is claimed to have told the Tribunal that he had "no knowledge of the claims made on his behalf by his solicitor in his application form".
The present case it was submitted can be distinguished from the decision in Khawar as in that case evidence was given by the Applicant which would alert the Tribunal to the potential existence of a particular social group and the Tribunal failed to make a finding in relation to that issue.
During the course of oral submissions the Court drew to the attention of Counsel the extracts from the delegate’s decision record set out in paragraph 7 of this judgment. The Court noted that that extract at least indicated that the issue was raised sufficiently for the delegate to consider the matter. Counsel for the First Respondent submitted that if it was raised it was dealt with by the Tribunal which had made factual findings dealing with the claim. It was conceded the Tribunal did not make a finding as to the existence or otherwise of a particular social group but made findings which ensured that it was unnecessary for the Tribunal to consider whether or not there was any particular social group comprised of rejected male partners or rejected male partners who were victims of domestic violence. Again, reference was made to the extract from the Tribunal decision which appears at page 91 of the Court Book set out earlier in this judgment at paragraph 38.
It was submitted that by reference to that passage it is clear that at the hearing the Applicant’s claim was that he feared harm from the father of his former fiancée and the Tribunal dealt with that point then raised.
In my view the Tribunal in the present case has clearly failed to identify a particular social group. However, on a proper reading of the claim, although a claim was originally advanced at least to a point where it was referred to by the delegate in the decision record, it appears that before the Tribunal the Applicant either abandoned the claim of membership of a particular social group or confined it to fear of the father of his former fiancée. The Tribunal dealt with that issue in clear terms and decided in a manner free of error that that fear was a fear not based upon a Convention reason. A Convention reason conceivably includes membership of a particular social group. It is the Applicant who confined the claim in a manner which in my view resulted in the Tribunal not identifying a particular social group or indeed pursuing that issue in further detail.
When confronted with a claimant who emphasises the claim in the manner set out in this application then it is not incumbent upon the Tribunal having regard to the authorities referred to by both parties to then explore and specify or indeed speculate about a particular social group. Clearly the extract from the Tribunal’s decision referred to earlier in this judgment indicates that it was cognisant of the circumstances of the claim and dealt with it in the passage referred to at page 91 of the Court Book. It is noted that under the heading “Claims and Evidence” at Court Book page 78 the Tribunal does refer to the claims made by the Applicant in the application for a protection visa and otherwise sets out the claims which it ultimately dealt with in its reasoning. The variety of claims were dealt with appropriately in my view and on the basis of the claims presented to the Tribunal notwithstanding consideration of a particular social group by the delegate in the decision record did not require the Tribunal to then embark upon the same reasoning process as the delegate given the way in which the matter was pursued by the Applicant before the Tribunal.
Although having raised the matter sufficiently to attract the reasoning process of the delegate does not mean that at the Tribunal hearing if the matter is not pursued in the same manner, that the Tribunal itself then has an obligation to revisit the issues as presented to the delegate.
In this case the extract from the Tribunal’s decision referred to earlier in this judgment which appears at page 91 of the Court Book demonstrates in my view what might be described as a virtual abandonment of any claim based upon a particular social group. In the alternative, if the claim was pursued in the general manner referred to earlier in this decision by the Tribunal then the Tribunal has in my view dealt with it appropriately in its fact-finding mission. It has done so free of jurisdictional error.
I am otherwise satisfied in the present case that the Tribunal’s finding of whether or not serious harm sufficient to amount to persecution occurred was a finding reasonably open it on the material presented and accordingly it is likewise free of error.
Accordingly it follows the application should be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 July 2006
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