MZYXJ v Minister for Immigration
[2013] FCCA 201
•7 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZYXJ v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 201 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether to extend the time for making the Application – whether Tribunal failed to consider an integer of the Applicant’s claim or to take into account evidence or asked itself the wrong question – whether Tribunal erred in failing to consider whether various forms of harm cumulatively amounted to persecution and serious harm – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.54, 91R, 417, 430, 477 |
| Cases Cited: Karmaker v Minister for Immigration & Anor [2011] FMCA 595 Kaur v Minister for Immigration & Anor [2010] FMCA 634 Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402; [1996] FCA 1342 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 VTAO and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332; [2004] FCA 927 Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 |
| Applicant: | MZYXJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 463 of 2012 |
| Judgment of: | Judge Barnes |
| Hearing date: | 21 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Baw |
| Solicitors for the Applicant: | Firmstone & Associates |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLG 463 of 2012
| MZYXJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Extension of Time
This is an Application for Review of a decision of the Refugee Review Tribunal dated 7 February 2012 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Application for Review of the Tribunal’s decision was not filed until 23 April 2012. Hence, it was outside the 35 day period from the date of the decision provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act).
The Applicant sought an extension of time under s.477(2) of the Act. In his Application of 23 April 2012, in the Amended Application of 7 February 2013, and also in his affidavit sworn on 20 April 2012, the Applicant met the requirements of s.477(2)(a) that the application for an order extending the time for making the Application to this Court be made in writing specifying why the Applicant considers that it is necessary in the interests of the administration of justice to make the order.
Under s.477(2)(b) the Court must be satisfied that it is necessary in the interests of the administration of justice to make the order. The Applicant referred to the relevant circumstances identified by Nicholls FM in SZMFJ v Minister for Immigration & Anor [2009] FMCA 771 (at [44]) as a convenient starting point, while acknowledging that it was necessary to have regard to all of the relevant circumstances (see Kaur v Minister for Immigration & Anor [2010] FMCA 634 at [45]).
The matters identified in SZMFJ were the extent of and the reason for the delay, whether there was any merit in the Application, whether there was any prejudice to the Respondents, the impact on the Applicant, the interests of the public at large and the Court’s discretion itself.
The First Respondent opposed any order for an extension of time on the basis that the Application for Review had no merit and did not have any reasonable prospects of success. No issue was taken with the other matters raised by the Applicant, including the submission that the delay had been satisfactorily explained. In the Applicant’s affidavit he referred to the fact that, from the time of being informed of the Tribunal decision, he had followed the advice of his solicitor. The Applicant submitted that he had acted in an expedient manner, that he could not reasonably be expected to have done otherwise and that the actions he had taken demonstrated that he was appropriately pursuing the matter through various options in circumstances where the time between the steps taken was within reasonable expectations.
According to the Applicant, when his solicitor informed him of the Tribunal decision, he also advised him that the best option would be to apply for Ministerial intervention under s.417 of the Migration Act, but that a second opinion from another solicitor should be sought. The second opinion was obtained. It also advised an application for Ministerial intervention. However on 22 March 2012 the Applicant’s solicitor advised him that the Tribunal had handed down a decision that may change his prospects of success on judicial review and that the solicitor wanted to seek the opinion of a barrister. The opinion was obtained. The Applicant was then advised to file an application for review on 13 April 2012 and his solicitor did so on his instructions on 23 April 2012.
Having regard to the extent of the delay (41 days beyond the 35 days provided for in s.477(1)) I am satisfied that the Applicant has provided a reasonable explanation. It cannot be said that it was his conduct alone that brought about the delay. He relied on the advice of his legal practitioners and acted with promptness after receiving an opinion that favoured filing an application in this Court.
There is no suggestion of any prejudice to the Respondents that would warrant refusal of an extension of time in circumstances where it was agreed that the Application for an Extension of Time and the substantive case should be argued at the one time. Rejection of the Application would have a significant impact upon the Applicant. Not only would he be required to return to his country of origin, but also he would have no possibility of access to the Federal Court’s appellate jurisdiction. The First Respondent did not take issue with the Applicant’s contention that the public interest favoured an extension of time being granted on the basis that the “interests of the Australian public at large would plainly not be served by the refoulment of a [person who claimed to be a refugee] to a country of claimed persecution” (see SZMFJ at [194]).
The parties differ in relation to the merits of this case. The Applicant submitted that the grounds of review had good prospects of success based on the substantive written submissions and that, at the least, it could not be said that the grounds of review were without any merit at all. The First Respondent submitted that the Application had no merit. While the grounds in the Amended Application have not been made out, I am of the view, on balance, that it cannot be said that the grounds had no merit whatsoever.
In the particular circumstances of this case, the preferable way of dealing with this matter in the interests of the administration of justice is that the extension of time be granted, but the substantive application dismissed (see Karmaker v Minister for Immigration & Anor [2011] FMCA 595 at [13]).
Background
The Applicant is a citizen of Lebanon who arrived in Australia in November 2008. He applied for protection in December 2010. In his protection visa application the Applicant claimed to fear persecution in Lebanon on the basis that he had become a committed member of the Jehovah’s Witness faith in Australia. He claimed to fear that if he went back to Lebanon his family would “seriously harm [him] if they were to discover [he was] a Jehovah’s Witness”. He claimed he was keen on pursuing his new faith and aimed to be baptised and to practice his faith in a manner required by the Bible, including preaching and attending prayer group meetings.
The Applicant also claimed that in Lebanon his “adherence to [his] new faith [would] remain extremely limited due to the danger that is associated with being a Jehovah’s Witness” and that he could not rely on the protection of the authorities as they were “hostile towards the Jehovah’s Witnesses and also because they [we]re loath to intervene in matters involving religious disputes or restoration of family honour”.
The Applicant claimed that his ability to practice his faith in Lebanon would “remain extremely limited” and that he “could not hope to overtly practice core tenants (sic) of [his] faith as required by our teachings”. He claimed to fear his “family and other Islamic fundamentalists”. He also claimed to fear he would be harmed because he had been “born a Moslem and ha[d] converted to the Jehovah’s Witness faith”.
The Applicant attended a Departmental interview at which he elaborated on his claims and provided a submission from his adviser. The Application was refused. The Applicant sought review by the Tribunal. His adviser provided supporting documentation and several submissions as discussed further below.
On 30 August 2011 the Applicant’s adviser wrote to the Tribunal drawing the Tribunal’s attention to the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 and the remarks of McHugh and Kirby JJ (at [40]) that:
…persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.
The adviser submitted that the mere fact of the need to abstain from openly practicing one’s faith to avoid actual or threatened harm supported such a proposition and that independent evidence supported the contention that the Jehovah’s Witnesses in Lebanon continued to take avoiding action to avoid serious harm. It was suggested that unspecified independent evidence confirmed that the Jehovah’s Witness faith was not legally recognised in Lebanon and that its members continued to congregate in basements fearing open worship and avoided public proselytising or dissemination of religious material to avoid hostile confrontation.
It was submitted that, “in light of the existential climate of hostility, the likelihood of a Jehovah’s Witness suffering serious harm [in Lebanon] whilst undertaking core activities such as door to door preaching [wa]s not a far-fetched proposition” and that (unspecified) independent evidence confirmed that Jehovah’s Witnesses in Lebanon had “had to place self-imposed restrictions on overt practices”.
It was claimed that the Applicant “would not be able to preach publicly or disseminate religious publications without the potential of facing real harm, particularly amongst the Muslim community”, and that the “only effective means by which he may be able to avoid serious harm would be to significantly modify his religious discourse – that is refrain from undertaking or limit proselytising”. This was said to “rende[r] adherence to core tenants (sic) of his faith untenable”.
It was also suggested that the Applicant may face an “unforseen hostile reaction” from Muslims given his Islamic background, in light of Sharia laws dealing with apostates. The authorities were said to be “reluctant to intervene”.
In a further written submission of 31 August 2011 the adviser provided the Tribunal with a number of extracts under the heading “Independent Evidence” which were said to “confirm” that Jehovah’s Witnesses had “problems distributing their publications in the [Lebanese] community and [we]re discouraged from proselytizing”, that they “experience[d] a degree of suspicion due to their perceived association with Zionism”, that other religious groups were critical of them and that preaching or proselytising, which was an important part of their practices, was not encouraged and that “those engaged in this activity may be considered troublemakers and face hostility”.
It was also submitted that, having regard to such information, if the Applicant returned to Lebanon he “would experience certain restrictions with respect to his religious practice” and “would be restricted in continuing along the path to conversion”. Particular reference was made to difficulties he would experience proselytising. It was also suggested that honour crimes were prevalent. Information relating to the killing of women in so-called “Crimes of Honor” was attached.
The adviser submitted that it was important for Jehovah’s Witnesses to practice in community with others and to proselytise, but that if the Applicant returned to Lebanon, he would be unable to practice his religion in the way he felt he should. It was said that if he attempted to do so, he would face a real chance of threats, verbal abuse and even physical assaults from private individuals.
There was also said to be a lack of state protection having regard to the illegal status of the religion. It was claimed that the only way the Applicant would be able to avoid serious harm would be to modify his behaviour and not to proselytise or to limit his proselytising and practice his religion discreetly. The adviser also submitted that “converts [had] to discharge their religious practice in a clandestine manner” and “abstai[n] from central tenets such as the observance of door to door preaching”.
Some of these claims were reiterated by the adviser in another submission of 8 September 2011 in relation to the need to abstain from or modify preaching to all, in particular to Muslims.
The Applicant attended a first Tribunal hearing on 8 September 2011. The only evidence before the Court of what occurred in that hearing is the account in the Tribunal reasons for decision.
The Tribunal recorded that it received “compelling evidence” from a witness for the Applicant as to the Applicant’s practice and engagement in the Jehovah’s Witness faith in Australia, to the effect that his practice was a matter of genuine commitment.
According to the Tribunal, when asked what he feared may happen if he returned to Lebanon the Applicant said “he feared being killed because going out and preaching, as he [was] required to do by his faith, [wa]s a dangerous thing to do in Lebanon”. When it was put to him that country information indicated that there was an absence of reports of Jehovah’s Witness practitioners coming to serious harm in Lebanon, the Applicant said “he was at particular risk because he was a convert from Islam, and that his family, who are strict Muslims, might even kill him” and that “other strict Muslims in the general community might also harm him”. He claimed “he could not relocate … because Jehovah’s Witnesses [we]re not welcome anywhere in Lebanon” and were seen as Zionists.
The Tribunal also recorded that the Applicant’s representative submitted that the Tribunal should take into account various matters, including that the “confessional system mean[t the Applicant] would be dealt with under Shari’a law” and that “they are not even allowed to bury their dead, but must call on a Muslim Sheik to perform the burial.” The adviser submitted that the Applicant was at particular risk as a convert from Islam and that if his family killed him it would be an honour killing. There was said to be a lack of state protection for apostates.
On 9 September 2011, the adviser drew the Tribunal’s attention to three other Tribunal decisions and the independent evidence referred to therein. On 14 September 2011, the adviser provided the Tribunal with further independent evidence. He subsequently drew the Tribunal’s attention on 28 September 2011 and 23 November 2011 to another three Tribunal decisions and the independent evidence contained therein.
The Tribunal invited the Applicant to attend a second hearing on 23 January 2012. It explained why it did so in the findings and reasons part of the decision. These are in a somewhat novel form. The Tribunal made some findings, then discussed the issues it had found necessary to put to the Applicant which led to the second hearing. It outlined the evidence the Applicant gave at the second hearing and further submissions on his behalf and then made further findings. The Tribunal then concluded, “[b]ased on the above reasoning”, that the Applicant did not have a well-founded fear of persecution for any Convention reason if he were to return to Lebanon, now or in the reasonably foreseeable future. It is relevant to set out its findings in detail having regard to the grounds raised by the Applicant.
The Tribunal decision
In its reasons for decision the Tribunal referred to the evidence before it including the evidence the Applicant gave to the Department and orally and in writing to the Tribunal up to the time of the first hearing, including the written submissions from the Applicant’s adviser to the effect that the Tribunal should have regard to Appellant S395/2002 and Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; [2000] FCA 1599 and to independent information provided or referred to by the adviser.
The Tribunal accepted that the Applicant was a credible witness. It also accepted the evidence of his witness and found that he had “converted to the Jehovah’s Witness faith in Australia as a matter of genuine belief”. It did not disregard such conduct under s.91R(3) of the Act. The Tribunal accepted that the Applicant was previously a Muslim in Lebanon, brought up as such by his parents and that he had converted from that faith to the Jehovah’s Witness religion.
The Tribunal accepted that it was “an important part of the Jehovah’s Witness faith to practice the religion in community with others and to proselytise and that this aspect of the practice … [wa]s critically important to Jehovah’s Witnesses”.
The Tribunal also accepted that the Applicant held a genuine subjective fear of harm amounting to persecution “in the nature of being killed or suffering serious physical harm due to the requirements of practice of his religious beliefs and also because he [came] from a Muslim family, was brought up as a Muslim”, but no longer followed that faith. It accepted that “the essential and significant reason” for such fear was the Convention reason of religion.
However the Tribunal was not satisfied that the Applicant’s fear of persecution for a Convention reason was well-founded. In reaching this conclusion it had regard first to country information about Lebanon. It stated that it had considered all of the country information in making its findings, including information later submitted that was referred to in the decision after certain of its findings.
The Tribunal set out a detailed summary of information from a number of sources about the situation in Lebanon for Jehovah’s Witnesses. In particular, the Tribunal referred to information from the Department of Foreign Affairs and Trade (DFAT) to the effect that while Jehovah’s Witnesses were not a recognised sect, did not have a court dealing with personal status issues and could not legally marry according to their faith in Lebanon, they could travel to Cyprus, marry there and register their marriage on return in “a recognised and frequently followed process by Lebanese couples not wishing to marry in a religious ceremony”. The same report also observed that while the Jehovah’s Witness sect required prior Ministerial approval to convene for public assembly or worship, in practice they were “left in peace to assemble and worship”, apart from possible ““hassle” from the security forces if, for example, someone held a grudge”. More generally, DFAT advised it had not identified any instances where proselytising Jehovah’s Witnesses had been harmed in Lebanon and that there was no legal barrier to the practice of their religion, including proselytising.
The Tribunal referred to country information from the Immigration and Refugee Board of Canada (referred to in submissions from the Applicant’s adviser) referring to the fact that since Jehovah’s Witnesses were not officially recognised, they faced certain problems and were said to be discriminated against in divorce and custody cases involving a non-Witness spouse as well as the fact that Jehovah’s Witness ministers could not perform legal marriage ceremonies in Lebanon.
The Tribunal also referred to other country information in relation to proselytising by Jehovah’s Witnesses in Lebanon and the absence of evidence of persecution, as well as to some press reports from the 1990s relevant to the Applicant’s claims that Jehovah’s Witnesses were regarded as Zionists or supporters of Israel.
In addition, the Tribunal set out in detail a response to a Tribunal information request about the situation for Jehovah’s Witnesses in Lebanon in relation to matters such as any limits on their legal rights, recognition of their religious ceremonies, their ability to congregate, worship and proselytise, as well as any limits on access to public institutions, any reports of harm perpetrated on them by state actors or recognised religions or members of the public (and if so, any reports of failure by state organs to afford protection).
The Tribunal expressed the view that, as it had raised with the Applicant at the hearing, the country information it had obtained showed that no information could be found regarding limits to the access of Jehovah’s Witnesses to public institutions such as schools, health care or government services; that no information could be found regarding state actors perpetrating harm against Jehovah’s Witnesses in Lebanon; that DFAT did not identify any cases of serious harm following the 2006 war between Israel and Hezbollah, or any instances of proselytising Jehovah’s Witnesses being harmed in Lebanon; that there were no specific reports of organised and concerted harm against Jehovah’s Witnesses by members of the public (albeit reception of their proselytising was mixed); and that there was no information on failures in state protection afforded to Jehovah’s Witnesses.
The Tribunal concluded that it was “not of the view that the independent country information support[ed] the proposition that the applicant fac[ed] a real chance of serious harm as a Jehovah’s Witness, even when proselytising, if he were to return to Lebanon now or in the reasonably foreseeable future”. The Tribunal also found that the country information did not support the claim that Jehovah’s Witness followers were perceived to be Zionists or pro-Israel and at risk of harm as a result.
The Tribunal continued (at paragraph [66] of the decision):
The Tribunal accepts that the Jehovah’s Witness religion is “not one of the 18 recognised sects in Lebanon and this has implications for personal status and family law issues which are dealt with through the religious courts – such as marriage, divorce and inheritance law”. (Refugee Board of Canada Country of Origin Research Response … of November 2005). The Tribunal accepts that in these types of matters, the applicant would be required to deal with the court that has jurisdiction in his religion of birth. Whilst there may be particular factual circumstances where a Jehovah’s Witness practitioner may be able to establish that they would be required to modify their conduct:
influenced by the threat of harm (Appellant S395 per McHugh and Kirby JJ at [43]).
or:
whether the anticipated limits on the practice of the Christian faith of this applicant and the foresight of any such limitation did or did not amount to persecution or, more accurately, a well-founded fear of persecution (Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 per Allsop J at [34]).
in the present case, the applicant has not claimed (other than at large) or established that he faces circumstances where he would modify his conduct due to Lebanon’s non-recognition of his faith for a well-founded fear of persecution. The Tribunal does not accept that he has a well-founded fear of persecution at large in Lebanon for this reason.
The Tribunal then addressed the Applicant’s claim that he would be harmed because he was an apostate from Islam. It referred to country information, in particular DFAT advice of June 2011 that it was not aware of killings or acts of serious harm perpetrated against individuals in Lebanon in the previous 10 years for apostasy and 2002 advice that strict application of Shari’a law calling for death for apostates had not been implemented in Lebanon. It was not of the view that this independent country information supported the proposition that the Applicant faced a real chance of serious harm as an apostate from Islam if he were to return to Lebanon now or in the reasonably foreseeable future.
The Tribunal accepted that “the applicant may face “societal harassment or discrimination” in Lebanon as an apostate and/or as a Jehovah’s Witness [but was] not of the view that such societal harm [wa]s sufficiently serious to constitute ‘serious harm’ for the purposes of s.91R(1)(b)” of the Migration Act.
The Tribunal found that as the country information did not support a proposition that Jehovah’s Witnesses or apostates faced a real chance of serious harm either for their religion or for their imputed political opinion, subject to what followed, the Applicant’s subjective fear of persecution was not well-founded.
At that point in its findings and reasons the Tribunal explained that it had accepted that the Applicant had converted to the Jehovah’s Witness faith in Australia and that it was necessary to determine what religion and mode of practice of his religion it should have regard to “for the purpose of considering whether there may be a curtailment of his right to practice his faith of the type identified… in Appellant S395/2002” (at [43] and [88]). The Tribunal accepted that Appellant S395/2002 was authority for the proposition that asylum seekers are not required, and nor can they be expected, to take reasonable steps to avoid persecutory harm.
On the basis of what was said to be the “broad view” generally taken in the courts as to “what constitutes the practice of religion” for the purposes of the Refugees Convention (see Wang), the Tribunal accepted that the Applicant was entitled to practice his religion in the form he had been taught and had adopted in Australia and that “he should not be … required to take steps such as modifying the practice of his religion to avoid harm in Lebanon”. This was said to raise the question of whether Jehovah’s Witness practitioners in Lebanon practiced a different form of their faith from that practiced by the Applicant.
The Tribunal was of the view that “the country information [did] not support the view that practitioners of the Jehovah’s Witness faith [in Lebanon did], in fact, modify their practice, save for the prohibition on handing out religious tracts in public”. The Tribunal was “not of the view that this prohibition [wa]s such as to constitute a requirement that they suppress their religious identity”. It noted that while the Applicant had claimed that it was “a requirement that he preach by going door-to-door … there [wa]s no prohibition on this activity in Lebanon”.
However the Tribunal explained that it had been of the view that it was necessary to put this question to the Applicant to give him the opportunity to make arguments and present his case on the issue. Hence he had been invited to the second Tribunal hearing.
The Tribunal recorded that at the second hearing the Applicant described his activities in practicing his faith. The Tribunal put to him that based on available country information to which it referred, “it did not think that he faced a real chance of serious harm just for being and practising the Jehovah’s Witness faith or being an apostate from Islam, or for being and practising the Jehovah’s Witness faith and being an apostate in combination”. However the Tribunal explained that its “mind was open … to the idea that [the Applicant] might face persecution in the sense discussed in Appellant S395 and Wang v MIMA” if he could “demonstrate that he would have to be discrete (sic) or amend his practice of his faith, as learnt by him from his congregation … in Australia, for fear of persecution”.
In response, the Applicant spoke generally about the violence in Lebanon and claimed he would be at risk proselytising in his community and even at risk of harm from his family. He claimed people would know he was born a Muslim.
The Tribunal referred to submissions from the Applicant’s adviser, including evidence “confirming the applicant’s continuing activity in the practice of his faith”. It set out the content of independent country information provided by the Applicant’s adviser in relation to the issues raised at the second hearing. However the Tribunal had regard to what it regarded as “pertinent aspects” of this material as follows:
a. the article entitled “Faith comes knocking” (which the Tribunal notes has previously been submitted by the applicant) reports on one person stating that he gets beaten sometimes and has had doors slammed in his face in the course of going door-to-door. The article then goes on to state that abuse is not the standard reaction Witnesses encounter;
b. the article entitled “Islamization Watch” is from the Arabic edition of the Watchtower magazine, which as the applicant has said in evidence is a magazine published by the Jehovah’s Witnesses. This reports that Kingdom halls appear to be tolerated in Lebanon although one witness states that she does not go door-to-door preaching “unlike in the West”;
c. the material from jw-archive.org, to the extent that it is legible makes one relevant comment; a bare assertion that “In Lebanon Jehovah’s Witnesses are persecution victims”;
d. the extract entitled “Four people were arrested in Rmeish on suspicion for “Jehovah’s Witnesses” is not found at the web address given. A search of the website does not disclose the existence of this piece;
e. the extract entitled “Prison soldier “rebel” belongs to “Jehovah’s Witnesses” is not found at the web address given. is an Arabic language website; and
f. the letter from the Watchtower Bible and Tract Society of Australia is again from an interested source, and the Tribunal gives it very little weight and prefers its own material recited above in assessing the chance of harm the applicant may face in Lebanon.
The Tribunal then stated:
Having considered this material, the Tribunal assesses that it offers equivocal evidence of harm being suffered by Jehovah’s witnesses in the practice of their faith in Lebanon. The Tribunal gives no weight to the extracts (d) and (e) above purported to be found at two internet websites as, even if the pieces submitted did at one time exist, the Tribunal is unable to assess their provenance. There is nothing in the material submitted that causes the Tribunal not to prefer the evidence from the Tribunal’s own research cited above which does not support the proposition that Jehovah’s Witnesses in Lebanon and/ or apostates from Islam face a real chance of serious harm while engaging in the practice of their faith.
Two piece submitted, from a Jehovah’s Witness publication and from the, Watchtower Bible and Tract Society of Australia make any mention of a Jehovah’s Witness practitioner modifying the practice of her religion, as it is reported that she does not go door-to-door like in the West or practicing and meeting discretely (sic). These examples, from interested sources, without any underlying detail, is outweighed by the evidence contained both in the materials submitted and in the Tribunal’s own country information that Jehovah’s Witnesses in Lebanon do in fact engage in their ministry. Critically, none of the material addresses the issue that was squarely raised with the applicant at the second hearing, which is what does he do in the practice his faith in Australia that he would not do in Lebanon for fear of persecution.
The only conclusion the Tribunal can draw, therefore, is that the applicant would not be required to act discretely (sic), or limit or amend the practice of his faith in Lebanon. The applicant has not made his case on Appellant S395 grounds.
The Tribunal concluded that the country information showed that the Applicant’s fear of harm was not well-founded, either in the sense that he may face a real chance of harm whilst engaged in his ministry; and/or in the sense that he was an apostate from Islam; and/or in the sense that he would be required to act discreetly or limit the practice of his faith in Lebanon.
The Tribunal then addressed the Applicant’s claim he would be harmed by his family, that this would be regarded as an honour killing, and that he would not receive protection from the authorities. The Tribunal rejected the contention that an article about honour killings affecting women supported the proposition that the Applicant would be at risk of harm from his family or others in the same way women targeted for “honour” crimes may be at such risk.
While the Tribunal gave the Applicant the benefit of the doubt and accepted that a document he had submitted from his father disinheriting him was authored by his father, it found that this document did not support his claim that he would be harmed by his family. The document stated that the Applicant’s father had disinherited him “due to a conflict”, because the Applicant did not respect him and because he had caused “harm to his brother and to the member of the family”.
The Tribunal pointed out that this document did not state what the harm was the father claimed the Applicant had caused. It found that even if it accepted that the harm referred to was the Applicant’s conversion and thus had a Convention nexus, it did not accept that being disinherited constituted serious harm or would cause the Applicant to face a real chance of persecution in Lebanon in the future or that such communication evidenced a threat or risk of other types of serious harm to the Applicant by his family. The Tribunal did not accept the Applicant’s claims of harm at the hands of his family and that he would not be afforded protection in Lebanon.
The Tribunal concluded that the Applicant did not have a well-founded fear of persecution for any Convention reason if he were to return to Lebanon now or in the reasonably foreseeable future. It affirmed the decision of the delegate.
As indicated, the Applicant relies on an Amended Application filed on 7 February 2013. There are two grounds in the Amended Application.
Ground One
Ground one in the Amended Application is:
The Tribunal failed to consider each integer of the applicant’s claim and/or failed to take into account the whole of the evidence, and asked itself the wrong question in determining whether the feared persecution claimed amounted to persecution and serious harm to the applicant pursuant to s.91R of the Migration Act 1958 (Cth).
Particulars:
(a)The Tribunal failed to consider whether the denial of rights and freedoms to Jehovah’s Witnesses, which are afforded to the other state sanctioned sects and religions, for example restrictions on marriage, divorce and inheritance law, amounted to persecution and serious harm.
(b)The Tribunal failed to consider whether the repercussions of not complying with such discriminatory laws of that country amounted to persecution and serious harm.
It was contended that the Tribunal had erred in its consideration of the denial of rights and freedoms to Jehovah’s Witnesses in Lebanon arising from the fact that the Jehovah’s Witness religion is not one of the 18 sects recognised in Lebanon. There was said to be evidence that Jehovah’s Witnesses were not among the 18 state sanctioned sects in Lebanon and that there were a number of prohibitions on the way Jehovah’s Witnesses could practice their religion. In particular reference was made to the evidence that they were denied legal recognition and the right to practice certain events, rituals and practices and the fact that they did not have their own legally recognised court system to adjudicate matters of personal status.
According to the Applicant’s written submission (at [16]), on the evidence and material before the Tribunal which it accepted or did not reject, the following specific forms of harm were claimed to be feared in respect of the Applicant if he returned to Lebanon as a Jehovah’s Witness:
a.Denial of legally marrying according to their faith, and a civil marriage not being an option;
b.Denial of burying their dead according to their faith, they must call on a Muslim Sheikh to perform a burial;
c.Disadvantaged under the law as an unrecognised group may not legally marry, divorce or inherit property in Lebanon;
d.All matters concerning marriage, divorce and child custody are subject to Sharia law and adjudicated in those courts;
e.A ban on Jehovah’s Witnesses disseminating their literature;
f.Denial of officially registering their houses of worship which excludes them from the property tax exemption that churches and mosques enjoy;
g.According to strict Sharia law apostasy is punishable by death, whilst death of an apostate in Lebanon has not been reported, it has been noted that authorities dealing with the murder of an apostate by a Muslim implementing Sharia-style justice would be faced with practical difficulties in bringing the murderer to trial; and
h.Non-compliance of any of the above discriminatory laws means that a person will be subject to state sanction and it is reasonable to infer that this may involve arrest, detention and/or imprisonment.
(Footnotes omitted)
It was submitted that the Tribunal failed to consider all these prohibitions as a form of harm and whether the consequential denial of rights and freedom and the repercussions of not complying with discriminatory Lebanese laws amounted to persecution and that this amounted to a failure to consider each integer of the Applicant’s claim, or a failure to take into account the whole of the evidence or revealed that the Tribunal asked itself the wrong question in a manner constituting jurisdictional error.
In support of the proposition that the Applicant had claimed to fear all such forms of harm, reference was made to submissions from and independent country information provided by the Applicant’s adviser as well as to the oral evidence of the Applicant and his adviser as recorded by the Tribunal.
However, counsel for the Applicant conceded that the Tribunal had sufficiently addressed the matters referred to in paragraphs (a), (c) and (d) set out at [63] above. Hence it is not necessary to consider further whether the Tribunal erred in its consideration of the restrictions on marriage, divorce, inheritance of property and the possible application of Shari’a law to personal status and family law issues.
While the matters referred to in paragraphs (a) and (c) set out above at [63] were the only examples of asserted harm listed in particular (a) to ground one, in oral submissions counsel for the Applicant submitted that the Applicant had also claimed in paragraphs (b) and (e) – (g) above at [63] that restrictions on Jehovah’s Witnesses burying their dead, disseminating their literature, officially registering their houses of worship and the consequences for apostates were implications that followed from the fact that Jehovah’s Witnesses were not a recognised sect in Lebanon. These “claims” were said to have been made in material cited in the written submissions from the Applicant’s adviser and by the Applicant at the first Tribunal hearing.
It was submitted that the Tribunal had failed to consider these consequences as forms of harm or the evidence in support of the existence of such restrictions or that it had asked itself the wrong question in relation to such matters. In addition the Applicant submitted that the Tribunal did not consider a claim that non-compliance with any such discriminatory laws meant a person would be subject to state sanction which, it was said to be reasonable to infer, may involve arrest, detention and/or imprisonment and hence constitute serious harm (see paragraph (h) at [63] above). In this context particular reference was made to the “claim” about the consequences for apostates referred to in paragraph (g) at [63] above.
First it was said that the Tribunal’s failure to address the matters in paragraphs (b) and (e) – (h) set out at [63] above amounted to a failure to take into account a relevant consideration (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69] and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641; [2003] FCAFC 184).
It was submitted that the claims the Applicant made in his protection visa application as to what he feared may happen to him if he returned to Lebanon were twofold. First, he was said to have specifically claimed that in Lebanon his “adherence to [his] new faith [would] remain extremely limited due to the danger associated with being a Jehovah’s Witness”, in circumstances where he claimed to be keen to practice his faith in a manner required by the Bible, including preaching and attending prayer group meetings.
Counsel for the Applicant submitted that the second aspect of the claims made by the Applicant was a claim to fear his family would harm him and that he could not rely on the protection of the authorities. The Applicant submitted that, contrary to the contention of the First Respondent, the Applicant did not make a separate claim to fear harm as an apostate. Rather such a claim was said to be included in and part of the basis for the Applicant’s claimed fear of his family because he had converted from Islam to Jehovah’s Witness.
It was also submitted that the Applicant did not claim that he would have to modify his religious practice. It was contended that the adviser’s submission about Appellant S395 did not give rise to a separate claim, but rather was part of the claim that the Applicant feared persecution as a Jehovah’s Witness if he could not practice in every way, including proselytising.
The Applicant submitted that the Tribunal only considered the second of the two forms of harm claimed (harm from his family) in its findings about apostasy and societal harassment or discrimination of the Applicant as an apostate and/or as a Jehovah’s Witness. This was said to reveal a failure to address all the elements or integers of the Applicant’s claim for asylum in the sense considered in Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at [79].
It was submitted that the Applicant had presented material to the Tribunal which evidenced the forms of harm experienced by Jehovah’s Witnesses’ followers in Lebanon as set out at [63] above in support of his claim to fear persecution as a Jehovah’s Witness. It was contended however, that the Tribunal had failed to address all such forms of harm in its decision and that this demonstrated a failure to consider the integer of the Applicant’s claim in his protection visa application that his adherence to his new faith would remain extremely limited due to the danger associated with being a Jehovah’s Witness.
In oral submissions it appeared to be submitted that each of the items at [63] above was itself an integer of the Applicant’s claims and had to be addressed expressly (except insofar as it was conceded that the Tribunal did sufficiently address items (a), (c) and (d) as forms of harm). There was said to be no explanation for why the Tribunal would selectively choose to consider some of the forms of harm claimed and not others.
In the alternative, it was submitted that the Tribunal fell into jurisdictional error on the basis that its failure to refer specifically to each item listed at [63] above amounted to a failure to take into account or consider all the evidence and to make findings on all the issues. It was submitted that as Madgwick J stated in NAVZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 13 (at [47]):
If factual issues which could reasonably affect the result have not been resolved and no adequate explanation is apparent, the effect is no different than if those issues had been overlooked. The failure in each case is sufficiently fundamental to amount to a jurisdictional error.
The Applicant also sought to rely on Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; [1996] FCA 1342 in support of the proposition that the Tribunal must give reasons in relation to those aspects of the evidence it had considered. Reference was made to the obligation on the Tribunal under s.430(1) of the Act to prepare a written statement that, relevantly, referred to the evidence or any other material on which the findings of fact were based (and see Yusuf at [69] per McHugh, Gummow and Hayne JJ).
Reliance was also placed on the decision of the Full Court of the Federal Court in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247 in relation to the Tribunal’s obligation under the Migration Act as it stood at that time. In that case Wilcox and Madgwick JJ referred (at [18]) to the delegate’s obligation under s.54 of the Act to have regard to “all” the information in the visa application before concluding (at [19]) that “all of the substantial claims, and information in support of them, put forward by an applicant must be considered” and that the Tribunal’s failure to consider all the available information was an incorrect interpretation of the Act as to the Tribunal’s duties.
In the alternative, it was contended that the manner in which the Tribunal proceeded could be characterised as a failure to “apply itself to all the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee” which was the “real question which it was its duty to consider” (see Sellamuthu at [21] and Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 557; [1997] HCA 22). The Applicant submitted that the Tribunal asked itself the wrong question, in that in its reasons for decision it considered only one of the two elements of harm claimed in relation to the Applicant’s claim about persecution because of his adherence to the Jehovah’s Witness faith and focused on asking whether he would be required to modify his practice of religion in Lebanon as compared to the form he had adopted in Australia. It was submitted that in so doing the Tribunal had failed to address expressly the issue of whether the particular harm feared amounted to persecution, serious harm and systematic and discriminatory conduct within s.91R as considered in VTAO and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332; [2004] FCA 927 at [15]. It was said that the Tribunal failed expressly to address this issue because it had failed to take into account the evidence as a whole and that if it had done so it would have considered each of the integers of the Applicant’s claim (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [8] – [12] and [41] – [42] and SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625; [2003] FCA 80 at [29]).
In essence, however characterised, it was contended that the Tribunal erred in failing to consider expressly whether all the forms of harm listed at [63] above, which were said to have been claimed by the Applicant, amounted to persecution involving serious harm within s.91R of the Act.
Insofar as the Applicant claimed that each of the matters listed in paragraph [16] of his written submissions constituted an integer of his claims, such a claim is not made out. As Allsop J (as he then was) pointed out in Htun (at [38]), there is a clear distinction between claims and their component integers. The latter are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40 and Yusuf (also see Sellamuthu at [18] – [19], [21] and [50] in relation to “errant fact finding”).
Moreover, while it is necessary for the Tribunal to examine and deal with the claims for asylum made by an applicant and, in so doing, as stated in Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 (at [30]), to consider “the totality of the case put forward” by the applicant (and see SCAT at [29]), a failure merely to attend to evidence, even probative evidence, amounting to a factual error, is to be distinguished from a failure to deal with one part of the claim for asylum (Htun at 42).
As Allsop J stated in Paul (at [79]):
Whatever may be the outer boundaries of relevant and irrelevant considerations at the point of jurisdiction...they do not, in my view, encompass a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed.
Having regard to the claims made expressly by the Applicant and arising squarely on the material before the Tribunal (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263) it is apparent that the integers of the Applicant’s claimed fear of religious persecution included that he would be persecuted for practicing his faith as a Jehovah’s Witness in Lebanon, where the Jehovah’s Witness faith was not a state-sanctioned religion and that he had a well-founded fear of persecution for a Convention reason on this basis and a claim to fear persecution for apostasy as a convert from Islam if he returned to Lebanon. In addition, a claim which raised the principles considered in Appellant S395 arose on the material before the Tribunal that the Applicant would have to modify his religious practice as a Jehovah’s Witness if he returned to Lebanon.
Such a claim (whether seen as a separate integer of his claims or as an element of the first-mentioned claim) clearly arose on all the material before the Tribunal, including the adviser’s submissions described above, notwithstanding the particular manner in which the adviser’s submissions were worded.
However the Tribunal not only considered the claims about apostasy and the application of Appellant S395 principles but also the Applicant’s claim to fear persecution as a Jehovah’s Witness practitioner in Lebanon. It made express findings in that respect after a consideration of independent country information. It has not been established that the Tribunal failed to consider each integer of the Applicant’s claims.
The points listed in paragraph [16] of the Applicant’s written submissions set out at [63] above were matters referred to in submissions or country information in particular information referred to by the Applicant’s adviser. They are properly characterised as evidence in support of this claim, not as themselves integers of the Applicant’s claim. In other words, evidence was provided or submissions made about the matters listed in paragraph [16] of the Applicant’s written submissions in support of the claim that the Applicant would be persecuted for practicing as a Jehovah’s Witness in Lebanon, where the Jehovah’s Witness faith is not a state-sanctioned religion. The Tribunal acknowledged the receipt of submissions from the Applicant and his adviser and considered all of the country information in making its findings.
The specific matters listed in the Applicant’s submissions were not integers of the Applicant’s claim. Such matters were evidence in support of the Applicant’s claim in the sense considered in Htun and Paul. The integers of the Applicant’s claims were addressed by the Tribunal in its findings and reasons. As the First Respondent submitted, bound up in the Tribunal’s consideration of whether Jehovah’s Witnesses could practice in Lebanon and whether the Applicant had a well-founded fear of serious harm, was a consideration of what that harm might be.
The Applicant did not make any express claim identifying all the particular aspects in paragraph [16] of his submissions as somehow separate from his general claim to be subject to persecution as a Jehovah’s Witness in Lebanon. He claimed to fear being killed (including by his family as a form of honour killing). In addition he claimed more generally to fear persecution from his family and Muslim society.
Insofar as the Applicant relied on the fact that his adviser submitted at the first Tribunal hearing that the Lebanese system meant that the Applicant would be dealt with under Shari’a law and that Jehovah’s Witnesses were not even allowed to bury their dead, but must call on a Muslim sheikh to perform a burial (referred to in paragraph (b) set out at [63] above), this was an example of the harm it was claimed the Applicant would suffer if he returned to practice as a Jehovah’s Witness, not an integer of his claim. The Tribunal recorded the adviser’s claim to this effect at the first Tribunal hearing.
In addition, the Tribunal accepted that Jehovah’s Witnesses were prohibited from handing out religious tracts in public (as claimed in paragraph (e) at [63] above). It specifically dealt with such prohibition in connection with the Appellant S395/2002 issue, but was not of the view that such prohibition constituted a requirement that the Jehovah’s Witnesses suppress their religious identity in the absence of a prohibition on the door-to-door preaching requirement of their faith. It also addressed the absence of legal barriers preventing proselytising and discussed the fact that the county information it preferred did not identify any cases of proselytising Jehovah’s Witnesses being harmed in Lebanon. Further, in the course of considering whether the Applicant faced a real chance of serious harm for reason of his religion it had regard to the fact that he had not claimed (other than at large) or established that he faced circumstances where he would modify his conduct due to Lebanon’s non-recognition of the Jehovah’s Witness faith such as to constitute a well-founded fear of persecution.
As to the asserted claims about denial of official registration for houses of worship, the Applicant did not claim that the exclusion of Jehovah’s Witness houses of worship from any property tax exemption contributed to a well-founded fear of persecution on his part (cf paragraph (f) at [63] above).
The Tribunal was aware of and specifically addressed the Applicant’s claims to fear persecution as an apostate (paragraph (g) at [63] above). It was not necessary for it to refer expressly to every item of information cited or submission made by the Applicant’s adviser about the possible consequences for apostates.
The Applicant appeared to rely on a submission by his adviser of 31 August 2011 that referred to claims made by the General Counsel for the Jehovah’s Witness in the USA to the Canadian Immigration and Refugee Board about a claimed conviction of a Jehovah’s Witness for following Jehovah’s Witness rites in burying his father. I note that the Canadian Board Report stated that no information corroborating that provided by the General Counsel could be found in sources consulted by the Research Directorate.
As to the general asserted claim in paragraph (h) above at [63] and particular (b) to ground one, the Tribunal specifically considered the possibility of harm by state actors, as well as by recognised religions or members of the public and the possibility of a failure to afford state protection to the Applicant as a Jehovah’s Witness (as well as as an apostate).
The Tribunal referred to the information and submissions provided by the Applicant’s adviser. It considered all the country information before it (including information cited later in its decision) in addressing the well-foundedness of the Applicant’s claim to fear persecution as a Jehovah’s Witness.
It is well-established that the Tribunal is entitled to prefer the country information it has obtained over country information provided by the Applicant’s representative. As pointed out in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11]):
There can be no objection, in principle, to the Tribunal relying on “country information”. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function...It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review. The Court does not have power to do that.
The Tribunal’s factual finding that it was not of the view that the independent country information supported the proposition that the Applicant faced a real chance of serious harm as a Jehovah’s Witness, even when proselytising was based on the Tribunal’s view as to what independent country information it accepted.
Even if the Applicant can point to information provided to the Department or the Tribunal in relation to particular consequences of Jehovah’s Witnesses not being a state-sanctioned religion in Lebanon, it was open to the Tribunal to prefer other country information in determining whether the fact that the Jehovah’s Witness religion was not one of the 18 recognised sects (which it recognised had implications) was such as to establish that the Applicant faced a real chance of serious harm.
In other words, it was open to the Tribunal to prefer the evidence it obtained in relation to what harm might be experienced if the Applicant returned to Lebanon. This approach is not demonstrative of jurisdictional error. It was not necessary for the Tribunal to explain why it rejected or gave no weight to particular items of evidence inconsistent with its findings or which may tend to undermine its findings (see Re Minister for Immigration and Multicultural Affairs; Ex parteDurairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [64] – [65]).
It is apparent from the Tribunal reasons as a whole that it had regard to the evidence before the delegate (including from the Applicant’s adviser) and before the Tribunal. It referred to the fact that independent country information had been provided by the Applicant’s adviser and examined restrictions on the legal rights of Jehovah’s Witnesses in Lebanon in the country information which it preferred in coming to its conclusion that the Applicant did not face a real chance of persecution as a practising Jehovah’s Witness. It has not been established that the Tribunal failed to take into account the whole of the evidence, let alone that it did so in a manner constituting jurisdictional error.
Nor has it been established that the Tribunal asked the wrong question in the manner contended for by the Applicant. One of the integers or elements of the Applicant’s claims that arose squarely on the material before the Tribunal was the possibility that he had a well-founded fear of persecution on the basis considered in Appellant S395 of 2002 in circumstances where there may be a curtailment of his right to practice his faith such that he would have to be discreet or amend his practice of his faith for fear of persecution. The Tribunal properly recognised that if this could be established, the Applicant’s claim would succeed on the basis of the High Court’s approach in Appellant S395 of 2002.
The Tribunal had regard to the fact that, initially, the Applicant had not claimed, “other than at large”, or established that he faced circumstances where he would modify his conduct due to Lebanon’s non-recognition of his faith. The Tribunal did not accept he had a well-founded fear of persecution “at large” in Lebanon for this reason.
Notwithstanding this finding, after the first hearing and in light of its acceptance that the Applicant had converted to the Jehovah’s Witness faith in Australia, the Tribunal accepted that the Applicant was entitled to practice his religion in the form taught to him and which he had adopted in Australia. That necessarily raised the question of whether Jehovah’s Witness practitioners in Lebanon practiced a different form of faith from that practiced by the Applicant. On the country information before it at that time, the Tribunal was of the view that the information did not support the view that practitioners of Jehovah’s Witness faith did in fact modify their practice, save for the prohibition on handing out religious tracts in public which it did not regard as a requirement that they suppress their religious identity. Relevantly, while the Applicant had claimed it was a requirement he preach by going door-to-door, there was said to be no prohibition on that activity in Lebanon.
The Tribunal put this issue to the Applicant at a second hearing and gave him the opportunity to provide further country information. Having considered such information it found that he would not have to act discreetly or limit the way he practiced his faith if he returned to Lebanon.
The Tribunal did not ask the wrong question in proceeding in this manner. Rather, it asked correctly whether the Applicant would have to modify his conduct so that it could be said that he held a well-founded fear of persecution consisting of a fear that unless he acted to avoid harmful conduct, he would suffer harm in the sense considered by McHugh and Kirby JJ in Appellant S395 of 2002 (at [43] and see Gummow and Hayne JJ at [88]). Nor, more generally, did it ask the wrong question in the manner it dealt with the evidence in support of the Applicant’s claim to fear persecution as a practitioner in a sect not recognised in Lebanon or as an apostate.
It has not been established that the Tribunal fell into jurisdictional error in the manner contended for in particular (a) to ground one on this or any other basis.
Particular (b) to ground one involves an assertion that the Tribunal failed to consider whether the repercussions of not complying with the discriminatory laws of Lebanon amounted to persecution and serious harm. As discussed above, in considering the Applicant’s claims that he would be persecuted for practicing as a Jehovah’s Witness in Lebanon, the Tribunal acknowledged that the Jehovah’s Witness faith was not a state-sanctioned religion. It considered independent country information, including information that related to the legal limitations or restrictions faced by Jehovah’s Witnesses if they practiced their faith in Lebanon and the consequences of practicing that faith. It considered the discriminatory laws in Lebanon as they applied to Jehovah’s Witnesses, but found based on the independent country information concerning those laws which it preferred that the Applicant would not face a real chance of persecution amounting to serious harm in Lebanon now or in the reasonably foreseeable future. The Tribunal’s decision to prefer certain independent country information in making its findings under s.91R(2) of the Act was a matter for it in the exercise of its jurisdiction under the Act.
Insofar as the Applicant referred to a decision of the Tribunal in relation to another person who claimed to be a Jehovah’s Witness from Lebanon (which is not in evidence before the Court), the fact that another Tribunal may have come to a different conclusion on a claim by another Jehovah’s Witness does not go to show that this Tribunal committed jurisdictional error in proceeding as it did on the evidence before it. As the First Respondent submitted, the Tribunal addressed all the Applicant’s claims and the integers of those claims, including any claims arising squarely on the material before it. It considered the totality of the Applicant’s case. It did not ask the wrong question.
It has not been established that the Tribunal erred in the manner contended for in particular (b) of ground one. Ground one is not made out.
Ground two
Ground two in the Amended Application is that:
The Tribunal failed to consider whether the state sanctioned forms of discrimination against Jehovah’s Witnesses cumulatively amounted to persecution and serious harm, pursuant to section 91R of the Migration Act 1958 (Cth).
The Applicant pointed out that in VTAO, Merkel J made the point (at [62]) that the Tribunal had a duty to consider the “totality of the case put forward” (and see Khan v The Minister for Immigration and Multicultural Affairs (2000) FCA 1478 at [31]) and, in doing so, to consider each of the integers of the claim as discussed in Htun and SCAT. In VTAO, Merkel J found that the Tribunal had failed to consider the cumulative effect of all the forms of harm which, on its findings of fact, the Applicant might suffer and then to consider whether the totality of that treatment met the legislative criterion of persecution involving serious harm.
Reliance was also placed on MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 (at [69] and [84]) in which Weinberg J referred to the need for the Tribunal to consider the totality of the case and individual instances of discrimination considered cumulatively (albeit this related to individual instances of past discrimination).
It was submitted that in this case the Tribunal had erred in not expressly recognising all eight forms of harm claimed, as set out in paragraph [16] of the Applicant’s submissions for the purposes of s.91R(1) of the Act and then considering whether the cumulative effect of all such integers of the Applicant’s claims could amount to serious harm. It was submitted that it was possible that when the instances of discrimination against Jehovah’s Witnesses were considered cumulatively they may have been found to satisfy s.91R and that the Tribunal had to consider this possibility.
It is the case that the duty of the Tribunal as described in VTAO (at [62]) is a duty to consider the “totality of the case put by the Applicant” by considering the cumulative effect of the claims made to it, including consideration of all the forms of harm “which, on its findings of fact, the Applicant might suffer” (see VTAO at [65]). However in this case the Tribunal found as a fact that the Applicant would not suffer serious harm by reason of the application of discriminatory laws to Jehovah’s Witnesses in Lebanon. In other words it found that all the harm claimed did not amount to serious harm. In contrast to the Tribunal in VTAO, the Tribunal in this case addressed the question under s.91R(2) of the Act of whether the conduct feared by the Applicant constituted “serious harm”, but found that it did not.
Moreover, having found that the country information did not support the proposition that Jehovah’s Witnesses or apostates faced a real chance of serious harm, either for their religion or their imputed political opinion, the Tribunal expressed the view that, subject to the Appellant S395 issue, the Applicant’s subjective fear of persecution was not well-founded. It then addressed the issue of whether the Applicant would have to modify the practice of his faith if he returned to Lebanon and the information provided by him in that regard, but concluded that he would not be required to act discreetly or limit or amend the practice of his faith in Lebanon.
The Tribunal acknowledged that the Applicant may have a subjective fear of harm while engaging in the practice of his faith, but found that the country information showed that his fear was not well-founded whether in the sense that he may face a real chance of harm while engaging in his ministry as a Jehovah’s Witness, in the sense that he was an apostate from Islam, or in the sense that he would be required to act discreetly or limit the practice of his faith in Lebanon, or for any of these reasons “in combination”.
In other words, the Tribunal considered the integers of the Applicant’s claims separately and in combination, but found in respect of all claims both individually and in combination that while the Applicant may have had a subjective fear of harm, the independent country information satisfied the Tribunal that such fear was not well-founded.
Insofar as ground two specifically relates to “state sanctioned forms of discrimination against Jehovah’s Witnesses”, as discussed above the consideration of the first aspect of the Applicant’s claim necessarily included consideration of the independent country information obtained by the Tribunal that discussed the effect and repercussions of the limitations on the legal rights of Jehovah’s Witnesses who practiced their faith in Lebanon. Ground two is not made out.
As neither of the grounds relied on by the Applicant has been established, the Application must be dismissed.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Barnes.
Date: 7 May 2013
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