MZXHM v Minister for Immigration
[2006] FMCA 1151
•11 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXHM v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1151 |
| MIGRATION – Protection visa – judicial review – whether jurisdictional error – failure to deal with claim of imputed political opinion/religion – failure to deal with integer of claim. |
| Migration Act 1958, s.424A |
| Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 Tanji v Minister for Immigration & Multicultural Affairs [2001] FCA 1110 Ranwalage v Ministerfor Immigration & Multicultural Affairs (1998) 90 FCR 173 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | MZXHM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REUGEE REVIEW TRIBUNAL |
| File number: | MLG 270 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 12 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 11 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J. A. Gibson |
| Solicitors for the Applicant: | Erskine Rodan & Associates |
| Counsel for the Respondents: | Ms S. A. Burchell |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 24 January 2006.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application according to law.
The First Respondent shall pay the Applicant’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 270 of 2006
| MZXHM |
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 24 January 2006, where the Tribunal affirmed a decision of a delegate of the First Respondent not to grant a protection visa to the Applicant.
The Applicant relies upon an amended application filed on 30 May 2006 which purports to raise as part of ground 1, four separate issues subjoined as particulars to that ground. The Applicant's counsel has characterised the grounds as falling into two categories, namely:
a)failure to deal with claim of persecution on convention ground of imputed political opinion/religion - misconstruction of ground of imputed political opinion and what constitutes attribution;
b)well-founded fear - failure to deal with integer.
The Applicant arrived in Australia on a class UL sponsored visitor subclass 679 on 7 February 2005. He Applicant is a male citizen of Lebanon and is now aged 36 years. On 24 March 2005, the Applicant lodged an application for a protection visa. A delegate of the First Respondent refused to grant the protection visa on 14 July 2005 and the Applicant then applied on 9 August 2005 to the Tribunal for review of the delegate's decision.
The Tribunal invited the Applicant to attend a hearing listed on 20 October 2005. The Applicant appeared at the hearing and gave oral evidence with the assistance of an interpreter.
The Applicant's claims before the Tribunal
In the application for a protection visa, (Court Book pages 8-10, 30, 87‑88) the Applicant claimed the following:
·that his father was shot dead when he was two years old and that he had suffered mental and physical mistreatment when he was in Lebanon;
·that he was accused of working as an undercover spy and;
·that he would be persecuted at the hands of the Lebanese and Syrian groups involved in the war if he were returned to Lebanon, because he had been accused of working as an undercover spy.
It should be noted that the reference to the Applicant working as an undercover spy was considered and rejected by the Tribunal and is now not an issue pursued by the Applicant.
An issue of some significance in these proceedings relates to events which were pursued before the Tribunal, namely, that the Applicant claimed that in 1989 he, at the age of 14, had witnessed a killing of a man in a storeroom. For present purposes it is sufficient to note that in its reasons the Tribunal referred to the incident in the following terms, which I have amended to delete reference to specific names and places:
“ The applicant stated that a man was killed in the storeroom around 1989, about a year after he started working for …. He claimed that there were a lot of killing at the time and either the dead bodies would be brought to the store or else people would be brought there to be killed.
The applicant was asked how long he had lived in this storeroom. He claimed that he had lived there for 4 years. He stated that he stayed for a year until he was attacked and then he had to leave. He stated that he had been interrogated by militiamen about a person who had been killed in the storeroom and they asked him questions about this man. He claimed this incident occurred in 1989.
The applicant was asked what other years he had lived at this storeroom. He claimed that he lived there for a year until 1989 and then returned around 2000 to work for the same man and stayed in his storeroom for around 3 years.
The applicant was asked where he lived from 1989 onwards, after he had left his employer. He stated that a man called “T” took him in and looked after him at his place. He claimed that sometimes he would go to other places, including … because he feared for his safety. The applicant claimed that people think he knows something about this person and they had threatened him. He stated that the person was the man who had been killed in front of him. The applicant mentioned that he knew the person and so the militia men who killed him interrogated the applicant. He stated that this happened in 1989 and claimed the dead man was called “K”.
The applicant stated that he did not know the killer but he was armed and shot “K” in … store where the applicant was staying. The applicant stated that he witnessed the killing and mentioned that he knew the dead man because he was from the same area.
When asked who had interrogated him, the applicant stated that he did not know who they were. They could have been Lebanese militiamen or someone else. He claimed they took him to a room, questioned him about the dead man and he told them he was from the same area. Then some soldiers took him away, beat him and returned him to the room where he was questioned again. He was then beaten, tortured and hit until he was unconscious. When he woke up he found himself at “T’s” place. He confirmed that all of this took place around 1989.”
When referring to the 1989 incident, the Applicant in response to a question from the Tribunal as to what he feared would happen to him if he returned to Lebanon now or in the reasonably foreseeable future, claimed that persons would kill him. He gave as the reason why they would want to kill him that he had witnessed the death of the person, “K”, in his presence. Because he was present at the killing, he indicated everyone wants to know what he knows about the killing, so he no longer knew who was with him or who was against him.
Following that reference, the Tribunal recites in summary form an extract of an exchange between it and the Applicant in the following terms:
“ The applicant was told that this incident happened in 1989 and was asked why he had not been harmed in the 16 years he lived in Lebanon since that time, if people wanted to harm him because of this incident. He claimed that the had not been harmed because he kept running away from one area to another so he would not be stopped.
The applicant was told that he had provided evidence earlier at the hearing that he had gone back to work for the same employer around 2000 and that he lived in the same place where the incident took place in 1989, which would indicate that the had no fear that someone would harm him. He claimed that it was correct that he stayed there when he was working but would work during the day and then go to another place after work. When told that he was clearly present in the area and would have been visible to anyone who wanted to harm him, the applicant stated that although he worked for “N”, he did not always work in the same place but would work on different sites.”
The Tribunal pursued the issue of whether other persons would be interested in the Applicant should he return to Lebanon based upon the incident whereby he witnessed the death of a person. Specifically, the Tribunal in its decision states:
“ The applicant was told that anyone who had any interest in this matter would have had many opportunities to harm the applicant since 1989, so the fact that he had not been attacked or harmed since that time may indicate that nobody had any interest in the applicant whatsoever. He responded that he might be walking down the street and be accused so he believed he was in danger. He claimed that even in Australia he feared everyone, even inside his house.”
The Tribunal also received evidence from two witnesses, one who had known the Applicant since 1988 and who was from the same area as the Applicant and the other the Applicant's sister. The first witness referred to civil unrest in Lebanon in 1989 and in the period leading up to the time when the Government, around 1990 or 1991, regained control. The first witness referred to the Applicant having been beaten by Militia who, he claimed, chose not to kill him because he was only 14 at the time.
The first witness further gave evidence that the family of the dead man knew the Applicant had seen the death and the Government also wanted to know who killed the man, so the Applicant was in danger if he returned to Lebanon. The Applicant's sister gave evidence of the reaction of the Applicant to these events.
The Tribunal, after the hearing, forwarded to the Applicant a s.424A letter on 23 December 2005. That letter appeared to relate to the Applicant's claims of working as an undercover spy and queried why the Applicant had failed to advance those claims or provide detail at the hearing. He made no further comments and, as indicated earlier, those claims were not pursued.
At the hearing of this application both parties referred to a transcript of proceedings before the Tribunal held on 20 October 2005 (Supplementary Court Book). It is relevant to set out certain extracts from the transcript to assist in understanding the evidence given by the Applicant in relation to the 1989 incident. Again, the extracts have been edited to remove the identity of the person killed and the specific area where the killing took place. The relevant extracts are as follows:
“… There was war between the Syrian forces, Lebanese forces and the Lebanese - they call the translations the Lebanese forces, but they called - a political group.
…
INTERPRETER: Yes, I worked for him for one year until the civil war erupted between the Lebanese National Army and the Lebanese Awar Army and there was a lot of killing, and I was sleeping in the store at the workplace and they used to drag all the dead bodies and take them inside in the store next to me, and there were these forces as well used to be on the front.
…
INTERPRETER: … Somebody was after me, and I believed they were after me because somebody was killed in the store where I was staying; where I was sleeping. And I think I was accused as having something to do with it, as if I know who killed this person and for what reason.
MR KATSAMBANIS: When did this killing take place?
INTERPRETER: About a year after I started working for him, so around 89, and the applicant said before, member, “1 kept working for this employer until the day I came to Australia.” And there were a lot of other killings. They would either drag the dead bodies in or they would bring someone in and kill them there, so I was living between dead bodies.
…
INTERPRETER: First of all I stayed there for a year until they hit me. I had that incident where they hit me and I had to leave. I have to seek medical attention and I was seeing a psychologist as well. They used to bring hostages in there and kill them and I said, “I know one of the people who was killed,” and the militia took me and they interrogated me. They hit me and they questioned me about this person and the connection with him.
…
INTERPRETER: In 1989.
…
INTERPRETER: When I left there in 89, a person named “T”. He took me, he looked after me and I used to sleep there at his place sometimes, and then other times I’d go to my mum’s and I moved to different parts. I was moving, or I would go to …, because I was in fear for my safety, because I was threatened. These people threatened me. They think that I know something about tis person I’m not telling them, and that’s why I was in fear moving from one place to another.
…
INTERPRETER: “K”; yeah, “K”. I don’t know who the person was, but he was armed, he was carrying weapons and he had a gun. He took his gun out and he shot him.
…
INTERPRETER: I don’t know who the militants were. Probably they were the Lebanese Kuwat militia or - I don’t know who they were, but they took me and they took me to a room, just like this room - I was sitting down - and the person questioning was asking me how did I know “K”, and I said, “He’s from the same area, that’s how I know him,” and then they soldiers took me and they beat me up and then they brought me back to that room, and I was questioned again, and I was saying the same thing, that that’s how I know this person. Then they took me again. They tortured me; the hit me until I was unconscious. When I woke up I was at this person’s place – “T”.
MR KATSAMBANIS: So this happened in 1989?
…
MR KATSAMBANIS: What do you fear might happen to you if you return to Lebanon now or in the reasonably foreseeable future?
INTERPRETER: I think if I go back to Lebanon I will not stay alive for a long time. I believe I would get there and I would die.
MR KATSAMBANIS: Why would you die?
INTERPRETER: Somebody wants to kill me.
MR KATSAMBANIS: Who wants to kill you?
INTERPRETER: 1f know who wants to kill me, then I will know. I can identify who wants to kill me, but I don’t know.
MR KATSAMBANIS: Why would they want to kill you?
INTERPRETER: Because this person was killed in my presence, a lot of people were killed there where I was staying, and because I said I know this person, now everyone wants to know what happened to him, who killed him, how. They want to know everything and now I got to the stage where I don’t know who is with me and who is against me.
MR KATSAMBANIS: All this happened in 1989. In the past 16 years if people wanted to harm you for that, they had every opportunity to do so. Why didn’t they?
INTERPRETER: Because, as I said before, I was always running away, and moving from one area to another so nobody can spot me anywhere and harm me.
…
MR KATSAMBANIS: Why would these people have an interest in you? They didn’t accuse you of killing this man. Why would they be interested in you?
INTERPRETER: Because I witnessed the killing and they know that I know who they are, and I was as well afraid of the family of the dead person, because they know I was there and they probably even think that I had something to do with the killing, or I know something, and I was afraid. I had fears for a lot of reasons from different groups.
MR KATSAMBANIS: It was so long ago, and these people would have had every chance to harm you. If they wanted to harm you in the last 16 years, they’ve had every chance to do so and they haven’t. That would indicate to me that these people have no interest in you. Would you like to comment on that?
INTERPRETER: I don’t know. I could be walking down the street and somebody comes up to me and says, “You know who killed Khalid,” or why Khalid was killed, and I believe I am in great danger. Even here in Australia, I live in fear from everybody, even here and inside the house.”
(Transcript pages 6 to 8, 12 and 13).
It is also relevant to set out an extract from the first witness called in support of the Applicant's claim who stated in part the following:
“INTERPRETER: He didn’t provide accommodation for all his employees, but “A” and myself because we came from …. It’s a bit far out and there was war. There were Syrians there; Lebanese militias and the Lebanese Army and war everywhere, so we could stay there, because … is close to …, close to ….
…
INTERPRETER: … We worked together and during the time that was the Lebanese militia and the Lebanese Army that was controlled by the general official at that time. There was war between them and then the Kuwat militia got stronger and then they split up and there was the fights and battles around the area. They surrounded the factory there, the workplace, and they started bringing dead bodies inside.
INTERPRETER: So war erupted at that area, then because the workplace was surrounded by the Lebanese Kuwat militia and then the – there was a shelter there – me, “A”, the employer and his family and other workers went an – we went to the shelter and then the militia started bringing bodies and they ordered us to help them carry bodies inside. And there was a soldier that they had held hostage and they brought him in there, and one of the other militia members took his gun and shot him. And as he shot him, “A” said, “I know this person.” They didn’t take him at the start, because there was other workers there, and it was after that they came and took “A” in an army vehicle. They took him to a place alone. I don’t know where it is. I don’t know what happened. I can only give evidence about things that happened in front.”
(Transcript pages 17 to 18).
I have deliberately set out in some detail those extracts which become relevant when considering the grounds relied upon in this application for judicial review.
The Tribunal's Decision
The findings of the Tribunal have been accurately set out in the First Respondent's contentions filed 19 June 2006 as follows:
““a)the Tribunal accepted that the applicant had been attacked in 1989 and he had suffered significant physical and psychological injuries [CB 97];
b)the Tribunal accepted that the nature and extent of the injuries suffered in 1989 would constitute serious harm, however, it was unable to find any grounds for the attack motivated by any Convention reason [CB 97];
c)the Tribunal ultimately found that the serious harm caused to the applicant in 1989 was not for any Convention reason but out of a desire by militiamen to determine what the applicant knew about the killing he had witnessed and to ensure that he did not seek revenge for the killing [CB 97];
d)the Tribunal observed that Mr Rigby in his report dated 8 June 2005 that the applicant had been seized by one of the many resistance groups in Lebanon and subject to harm as a result of refusing to join this group, however, the applicant did not advance these claims at the hearing despite every opportunity to do so. The applicant indicated that the only incident that he suffered in the past resulting in harm was the 1989 incident [CB 56, 97];
e)on 23 December 2005, the Tribunal wrote to the applicant pursuant to s424A of the Act inviting the applicant’s comments on the information in Mr Byron’s report that the applicant had been accused of working as an undercover spy by various people and as a result the applicant feared harm from Lebanese and Syrian groups involved in the war if returned. The applicant did not respond within the time stipulated by the Tribunal or prior to it handing down its decision [CB 75, 97, 99];
f)the Tribunal accepted that shots may have been randomly fired at the applicant’s vehicle but it was not satisfied on the evidence before it that these shots were fired at the applicant in a selective or discriminatory fashion for a Convention reason [CB 97-98];
g)the Tribunal accepted that the applicant was jailed during his military service for 10 days but the incident had no Convention nexus and was as a result of a law of general application [CB 98]; and
h)the Tribunal found that on the evidence before it, there was no Convention related reason for the applicant’s father’s death [CB 98].”
It is useful to further set out the following specific paragraph from the Tribunal's decision where the Tribunal member indicated that he was unable to find a connection between the 1989 incident and the Refugee's Convention. The Tribunal at Court Book page 97 relevantly states:
“However, I am unable to find any grounds for the attack that would provide any nexus or link to the Refugees convention. The applicant has stated that the militia men interrogated and tortured him after he told them that he knew the man who one of their group had killed in front of the applicant. There is no indication whatsoever that the attack, although serious and resulting in significant physical and mental harm to the applicant, was motivated in any way by a Convention reason. Based on the evidence before me, I am not satisfied that the attack in 1989 was motivated for any Convention related reason and I therefore find that the serious harm caused to the applicant in the attach around 1989 was not for any Convention reason but out of a desire by the militiamen to determine what the applicant knew about the killings he had witnessed and to ensure that he did not seek revenge for the killing, in the context of the general state of significance unrest existing at the time in Lebanon.”
Further in its decision, the Tribunal relevantly states at Court book page 98:
“The applicant has claimed that if he returned to Lebanon now or in the reasonably foreseeable future he feared that he would be killed by people who were after him but who he could not identify. He claimed that these people would want to kill him because he was present when “K” died in 1989. However as was pointed out to the applicant, he managed to live in Lebanon for a long time after this man’s death without suffering any apparent harm from the people he fears are likely to harm him, including the people who killed “K” and the victim’s family. I have already found that the applicant did not suffer any serious harm for any Convention related reason prior to his departure from Lebanon. Based on the evidence before me I find that if the applicant returned to Lebanon now or in the reasonably foreseeable future there is no real chance that he would suffer any harm from any people who allegedly wanted to kill him because he had witnessed the death of “K” in 1989, for any other Convention related reason.”
Ultimately, the Tribunal states as part of its conclusion the following at page 99:
“Based on all of the above I find that if the applicant were to return to Lebanon there is no real chance that he would suffer serious harm that can be regarded as persecution as envisaged by s.91R of the Act for any alleged imputed political beliefs or for any other Convention related reason.”
The Issues
(a) "Failure to deal with claim of persecution on convention ground of imputed political opinion/religion misconstruction of ground of imputed political opinion and what constitutes attribution".
Applicant’s Submissions
The Applicant submitted that the reasons of the Tribunal make no express or implied reference to imputed political opinion or for that matter to religion, nor do they refer to the principles according to which such a convention nexus could be established. Reliance was placed upon the principle in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-71 where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ stated:
“For the purposes of the Convention, a political opinion need not be an opinion that is actually held by the refugee. It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor. In Chan [27] Gaudron J said:
" persecution may as equally be constituted by the infliction of harm on the basis of perceived political belief as of actual belief."
Further reference was made to the decision of Tamberlin J in
Tanji v Minister for Immigration & Multicultural Affairs[2001] FCA 1110 where the Court states at paragraph 13 the following:
“13 The difference between being imputed with engagement in "political activity" and holding a particular "political opinion" is a real distinction. A person may have no history of political activity or not be imputed with "political activity", but nevertheless be persecuted because of a perception that such person holds a particular "political opinion". In the present case, the accepted evidence is that when he was attacked and detained his attackers stated that he was "like his father". The only rational explanation of the use of this language is that he was imputed in their perception with holding a political opinion similar to or identical with that of his father. The best guide as to the reasons which actuated the attack must be the words used by the attackers at the time. There is no contest that words linking him with his father were uttered at the time.”
It was submitted, “the significance of any imputation by ‘would be’ persecutors of an association of the Applicant with the views of their political enemies is profound”. In this case, reference was made to the affiliations and antipathies held by Christian and Muslim protagonists and between different Christian Maronite militias and between them and Lebanese army forces, plus the differences between Muslim and pro‑Syria militias in opposition to Christian forces all of which provides a context in a sound convention basis for the Applicant's fears.
The Applicant submitted that what he had claimed at the hearing raises an issue of an attribution of opinion based upon his knowledge of the identity of the Muslim victim of the apparently Christian militia group or the army which tortured and beat him. It was submitted the sequence concerning the incident in 1989 is relevant. After the killing the Applicant had mentioned that he knew the victim and was then taken away and tortured twice by the army or a militia group. It was noted the Applicant is a Muslim.
During the course of the hearing there was some confusion as to whether or not the interrogators had been the same group who had killed the victim. It was difficult during the hearing to identify precise extracts from the transcript which had enabled the Tribunal to draw the conclusion set out in the extract of its decision earlier in this judgment, where it stated the following at page 91:
“The applicant was asked where he lived from 1989 onwards, after he had left his employer. He stated that a man called “T” took him in and looked after him at his place. He claimed that sometimes he would go to other places, including …, because he feared for his safety. The applicant claimed that people think he knows something about this person and they had threatened him. He stated that the person was the man who had been killed in front of him. The applicant mentioned that he knew the person and so the militiamen who killed and interrogated the applicant. He stated that this happened in 1989 and claimed the dead man was called “K”.”
As I understood the submissions made for and on behalf of the Applicant, it was suggested that knowledge of the name of the deceased and subsequent interrogation of the Applicant, who was then only aged 14, of itself was sufficient to require the Tribunal to at least explore in further detail the concept of imputed political opinion and/or sufficient for the attribution of such an opinion based upon the witnessing by the Applicant of the event in 1989. It became evident during the course of submissions that at least the Tribunal had formed the view that not only did the Applicant know the person killed but was also interrogated by the militiamen who killed him.
As indicated it was difficult to determine the basis upon which the Tribunal made reference to that part of the material in its decision. Nevertheless, if there is sufficient material connecting the interrogators with the killing, then the Applicant submitted in oral submissions that this strengthened the Applicant's claim that the Tribunal ought to have then proceeded to deal with the claim of persecution on the ground of imputed political opinion and that it failed to properly interpret the ground of imputed political opinion and what may constitute attribution.
Specifically, it was submitted that the Tribunal had ignored in its findings and reasons the fact that the Applicant was a Muslim and the perpetrators of the crime Christian. It was argued the failure to mention in the findings the simple reference to the attackers ensuring that the Applicant did not seek revenge revealed not only a failure to deal with the claim of the two convention grounds but also a misunderstanding of the ground of imputed political opinion and what may be sufficient for the attribution of that opinion.
Reference was made to other evidence given before the Tribunal, including evidence from an official from the Applicant's neighbourhood regarding a conflict in the Applicant's area and of the many killings. The Applicant gave evidence of sectarian groups which were active in the area. The Applicant's witness gave evidence at the hearing of sectarian groups which were active in the Applicant's area and the fact that the Kuwat militia became stronger and that one of the major militia groups split (Supplementary Court Book page 17 lines 20-39).
It was argued that the Applicant had placed his difficulties in the same context and that he made specific reference to at least the probability that the perpetrators were members of the Lebanese Kuwat militia, as set out in the extract of his evidence referred to earlier in this judgment.
During the course of submissions counsel for the Applicant referred to extracts from the Tribunal's decision set out earlier, when the Tribunal found no indication that the attack in 1989, though serious, was motivated by any convention reason. It was argued that, whilst referring to the question of ensuring the Applicant did not seek revenge for the killing, the Tribunal failed to take the further necessary step of examining whether the facts gave rise to the existence of a convention nexus.
It was argued that in the context of Lebanon, where motivation is essentially sectarian, revenge by definition is politically or ethnically motivated. It was argued that, for revenge to be more than that that is, to be purely or essentially personal then it would have to be clear that the Tribunal appreciated on the facts supplied the distinction. In this case the Tribunal failed to draw the distinction, according to the Applicant's submissions.
First Respondent’s Submissions
It was submitted that knowledge of a fact can be just as much a political opinion as views of political, economic or philosophical matters (see Ranwalage v Ministerfor Immigration & Multicultural Affairs (1998) 90 FCR 173). It was argued that if the Tribunal had considered all of the matters properly, then it may well have arrived at a different conclusion on the issue of the existence of a convention nexus to the one that it did reach in its conclusion. Hence, it was argued that the Tribunal has committed a jurisdictional error.
The First Respondent submitted that a failure to take into account a relevant consideration can only be made out if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J). The First Respondent referred to the Federal Court decision in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 (“Htun”), which it was submitted makes it clear the only relevant consideration is an integer of the Applicant's claim of persecution. Specifically, reference was made to paragraph 42 of that decision where Allsop J states:
“[42]The “participation in the Karen community and the political groups” could be said to have been dealt with by the tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a “relevant” fact. The tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 ; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 180 ALR 1 ; 62 ALD 225. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 ; 58 ALD 30 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act, for example ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in reg 866 to the “claims” of the applicant for example 866.211, make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation — that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.”
It was submitted that an integer of the claim relying on the authority of Htun and also of Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [72] is taken to mean an element or integer of the claim made by an Applicant of a well-founded fear of persecution.
The First Respondent referred to other authorities in relation to this issue. Specifically, reference was made to the decision of the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 where the Court at [46]-[47] relevantly states the following:
“46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
In this case, it was submitted the Tribunal considered the key issues and relevant considerations. It was submitted the Tribunal set out the claims and evidence based on the material then before it. It took into account the relevant considerations and specifically that the Applicant claimed he was subject to persecution on the grounds of religious and imputed political opinion in Lebanon and made findings on those claims. During the course of submissions, reference was made to the extracts from the Tribunal decision set out earlier in this judgment. Specifically, a reference was made to the conclusion found at page 99 of the Court Book where the Tribunal specifically uses the expression "imputed political beliefs".
It was submitted that “on the material before the Tribunal, the only basis upon which any religious or imputed political opinion could be raised was on submissions in a report to the Tribunal of Mr Rigby, a Psychiatrist. That report dated 8 June 2005 (Court Book page 56) provides some detail concerning the Applicant's condition and history. It was submitted by the First Respondent that the Tribunal dealt with the claim that the Applicant had been seized by one or other of the resistance or other factions of Lebanon and that his resistance to join the group resulted in him being labelled and associated with Syrian occupation as well as being a member of opponents of Syria and that it had noted the Applicant had not advanced those claims at the hearing, despite every opportunity to do so.
It was submitted that the Applicant was vague in relation to the identity of the people who interrogated him and referred to them as being "some soldiers" who took him away. During the course of oral submissions significant emphasis was placed upon the vague nature of the Applicant's identification of the relevant militia group. Again, counsel for the First Respondent was unable to precisely identify the passages from the evidence which justified the Tribunal's identification as the interrogators being the same as the persons who killed the individual which was the incident witnessed by the Applicant.
It was submitted the Tribunal in this instance gave a thorough and comprehensive review of the Applicant's evidence and that it ultimately found that he had failed to show that a convention nexus had been established or failed to raise matters which could provide the nexus. A Court, it was submitted, should not pursue a merits review of the Applicant's claim.
It was submitted that the Tribunal took into account the Applicant's claims and that in the circumstances there is no basis upon which any error of law on the part of the Tribunal could be established. A fair reading of the Tribunal's decision indicates, according to the First Respondent's submissions that the Tribunal had considered whether the Applicant would come to harm upon his return now or in the reasonable future. The decision was open to it on the evidence and the Tribunal squarely and properly addressed the Applicant's claims.
Reasoning
Whilst the Tribunal has reached a conclusion adverse to the Applicant concerning the claims arising out of the 1989 incident, there seems to be a degree of confusion as to whether the interrogators of the Applicant thereafter were the same persons who had killed the victim in the attack witnessed by the Applicant. Putting aside that confusion, there is at the very least, an error in the reasoning of the Tribunal for its failure to consider what I regard as an integer of the claim, namely, the imputed political opinion which could properly be attributed to the Applicant, albeit he was then 14 years of age, when witnessing the killing of a person by unidentified militia.
The mere fact that the Applicant was vague in his description of the precise identity of the militia does not then provide an opportunity for the Tribunal to simply reach the somewhat superficial conclusion that the Applicant's fear is not based upon a convention nexus but rather on a personal revenge motive, that is, a motive designed to ensure the Applicant does not seek revenge. Whilst that finding may in part have been reasonably open to the Tribunal, it has failed to properly address the integer of the claim by its failure to properly question the Applicant as to the political nature of the group and/or further details concerning the identity of the group responsible for the killing and/or responsible for the interrogation of the Applicant shortly after the killing.
Those questions, if pursued beyond the questions set out earlier in this judgment from the transcript, may well have revealed material which would then support what I regard as an integer of the Applicant's claim. An extract from the transcript referred to earlier in this judgment, demonstrates that the Tribunal having asked the Applicant whether he saw "the killer" and having received the answer, "Yes", failed to seek from the Applicant the identification of the killer and whether or not the killer belonged to any militia or identifiable political group.
The Tribunal itself seems to connect the killer with the interrogators but then proceeds to ask the question (Supplementary Court Book page 8), "What happened after that? You were interrogated. Who interrogated you?" That question then generated the vague description and answer from the Applicant, who initially said he did not know "who the militants were" and then added, "Probably they were the Lebanese Kuwat militia."
The Tribunal having received that information against the backdrop of the other information from the Applicant's first witness, ought reasonably to have explored that topic in further detail before reaching what I conclude is a somewhat superficial conclusion that the events in 1989, including interrogation, were not motivated in any way "by any convention reason" or by finding that the desire by the militiamen was to determine what the Applicant knew about the killing "to ensure that he did not seek revenge for the killing".
Had the Tribunal pursued a claim which I regard as squarely before it, concerning imputed political opinion to be attributed to the Applicant given the witnessing of this death, then there may well have been a different outcome.
I am satisfied on the material before me that that error is sufficient to constitute jurisdictional error of a kind which would permit the application to succeed.
(b) Well-founded fear and failure to deal with integer.
Applicant’s Submissions
This part of the claim relates specifically to an alternative integer, namely, the finding by the Tribunal that the Applicant continued to live in Lebanon for a long time without suffering any apparent harm. The Applicant submitted that whilst the Tribunal acknowledged in setting out the facts that the Applicant kept running away from one area to another, so that "he would not be spotted" (Court Book page 93) and had also made reference to him not working in the same place but working on "different sites".
The Tribunal in its conclusions effectively used against the Applicant the fact that he had remained in Lebanon for 16 years without harm. It was submitted by the Applicant that against the backdrop of the evidence concerning the Applicant seeking to avoid harm, the Tribunal in its reasons, failed to mention the Applicant was "always on the run", which demonstrates a failure to deal with an integer of the Applicant's claims. Where an explanation is provided it includes what might be described as going “into hiding", it was submitted that for the non-occurrence of adverse events which were likely to happen if a person's fears were genuine, then at least that explanation forming part of the case presented should be specifically dealt with.
In the present case, it was submitted that in its findings the Tribunal neither accepted nor rejected the Applicant's explanation that he had effectively gone into hiding, which may of course explain why he was not harmed for the period of 16 years.
Hence, it was submitted that by simply saying that the Applicant "managed to live in Lebanon for a long time after this man's death without suffering any apparent harm from the people he fears likely to harm him ...", the Tribunal had failed to consider why the Applicant had escaped that serious harm. Although the Tribunal had recited the activities of the Applicant when dealing with the claim and indeed made specific reference to the Applicant who claimed he had not been harmed "because he kept running away from one area to another so he would not be spotted". The Tribunal did not deal with that integer during its findings and hence, it was submitted, had fallen into jurisdictional error by failing to deal with that integer of the claim.
First Respondent’s Submissions
The First Respondent submitted that the Tribunal in this instance had made an anterior decision that the basis upon which the Applicant had sought protection did not have the required convention nexus and that accordingly, in the light of that prior finding the Tribunal's observations regarding the Applicant living in Lebanon for a long time without suffering harm does not display an error or jurisdictional error.
Reasoning
Having regard to my finding in relation to the substantive jurisdictional error, it follows that it is perhaps unnecessary for the Court to consider in detail this further error. If there was a convention nexus, then it would be reasonably expected that the Tribunal when making a comment concerning the Applicant not suffering harm should properly consider the reason advanced in the Applicant's claim as to why he had avoided harm during the extended period.
If a person avoids harm from potential persecutors by simply hiding or shifting employment from one site to another or as described in this case, by running away from one area to another so he "could not be spotted", then it would be relevant for the Tribunal to at least consider that part of the claim before reaching a conclusion, adverse to the Applicant, that he had not suffered harm during the extended period in order to bolster the finding that the Applicant could not properly be regarded as a person having a well‑founded fear of persecution within the meaning of the convention.
To that extent, I am also satisfied that in dealing with that issue the Tribunal has erred, but could only have erred if it also erred in relation to its finding concerning the lack of a convention nexus between the events of 1989 and the Applicant's claim, which I have already found should have been explored further when dealing with imputed political opinion.
Conclusion
It follows for the reasons given, that the relief sought by the Applicant should be granted.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 11 August 2006
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