SZEUL v Minister for Immigration - [2005] FMCA 1183

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUL v MINISTER FOR IMMIGRATION

[2005] FMCA 1183

MIGRATION – Refugee – criterion set out in s.36(2)(a) – denial of natural justice – justified fear of persecution.

Migration Act 1958, ss.91X, 36(2)(a), 36(2)(b), 477, 474, 477(1)(a), 477(2), 422B, 424A, 424A(3)(a), 424A(3)(b)

Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2
Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 426
NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 241
for Immigration and Multicultural and Indigenous Affairsv NAMW [2004] FCAFC 264
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 [2003] 201 ALR 437
Commissioner for ACT Revenue v Allophone Pty Ltd (1994) 40 FCR at 592
Re Refugee Review Tribunal; Ex parte Ala (2000) 204 CLR 82
Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109
SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24
Minister for Immigration and Multicultural and Indigenous Affairsv NAMW [2004] FCAFC 264
WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330
VAF vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24]
W50/2001 vMinister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1305

Applicant:

SZEUL

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 1822 of 2004

Judgment of:

Nicholls FM

Hearing date:

14 April 2005

Date of Last Submission:

09 June 2005

Delivered at:

Sydney

Delivered on:

26 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr. S. Stanton

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms. M. Allars

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1822 of 2004

SZEUL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application filed in this Court on 15 June 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 May 2003 and handed down on 6 June 2003 to affirm the decision of a delegate of the respondent Minister made on 28 August 2002 to refuse a protection visa to the applicant.
The applicants are citizens of Lebanon who arrived in Australia on 20 June 2001. The applicant husband’s claims centred around his involvement with a Maronite Christian organisation, that he became of interest to the Lebanese army and that he was arrested, detained and tortured. The applicant’s wife and six children also applied for protection visas. They each lodged a “Part D” of the protection visa application form as members of the applicant’s family unit who do not have refugee claims in their own right (see Court Book 24 to CB 53). At no time during the processing of the protection visa application before the respondent's Department or in the application to the Tribunal do they appear to have made any separate claims.
An issue in this case is the “commonness” of the applicant’s name with other names, appearing in various sources before the Tribunal. In light of s.91X of the Migration Act (the Act), I will refer to the various sources as:
§Applicant’s name as appearing in his application before the Tribunal as “applicant name”.
§A name similar to the applicant’s name with a different spelling residing in the town of Becharri (Lebanon) as “name in applicant’s hometown”.
§A name similar to the applicant’s which appears in a newspaper article put to the Tribunal by the applicant on 6 May 2003 as “name in newspaper article”.
§A name similar to the applicant’s name with a different spelling which appears in an Amnesty International report at CB 274 as “name in Amnesty report”.
The application to this Court filed on 15 June 2004 was submitted by an authorised representative for the applicant and asserts:
“1. An order that the decision of the Refugee Review Tribunal whereupon the determined that the applicant was not a person to whom Australia has protection obligations and the Refugees Convention as amended by the Refugees Protocol be set aside.
2. An order that the first named applicant does satisfy the criterion set out in s.36(2)(a) of the Act.
3. An order that the applicant’s wife and children be heard on the basis that they were not heard and thereby denied natural justice with respect to satisfying or being offered an opportunity to satisfy the alternative criteria set out in s.36(2)(b) of the Act.
4. An order that the applicant be a person who is and should have been found to have had a justified fear of persecution in accordance with Refugees Convention.
5. Such further and other grounds as may seem fit upon the applicant having obtained advice as to any further grounds that may be available to him in respect of the decision of the Tribunal.”
On 20 September 2004 Mr. Stanton of Counsel filed an appearance on behalf of the applicant (Direct Brief). He attended the first Court date in this matter on 21 September 2004 and signed short minutes of order on behalf of the applicant that subsequently became orders of the Court. The application filed on 15 June 2004 set out the orders sought, but no particulars were provided to support at least the one possible ground (ground three) that may be discerned. Relevantly, the Court looked to address this deficiency by making orders by consent, that the applicant file and serve an amended application giving complete particulars of each ground of review relied upon by 7 December 2004. No amended application with any particulars has been a filed however just before the hearing before me the applicant’s Counsel filed submissions on his behalf. The submissions do not address the one possible ground in the application, that is, whether the wife and children were denied procedural fairness. The submission appears to argue other grounds.
I also have before me a Notice of Objection Competency filed by the respondent on 8 April 2005. The Tribunal decision was handed down on 6 June 2003 and the application to this Court was made on 15 June 2004, over a year later. The case of Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2, a full Federal Court decision on 4 November 2004, upheld the judgement of Justice Nicholson who at first instance held that an appeal against a privative clause decision lodged outside the time limit in s.477 of the Act is in those circumstances incompetent, unless a ground of review can be made out. In determining whether the Tribunal made a jurisdictional error, regard must be had to s.474 of the Migration Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia (2003) 211 CLR 426. If the Tribunal's decision in the case before me is a privative cause decision pursuant to s.474 of the Act then the time limit provided in s.477(1)(a) of the Act would apply. Also pursuant to s.477(2) of the Act, the Federal Magistrates Court cannot make orders which would have the effect of allowing the lodging of an application outside the time limit which is 28 days. The issue of whether the decision complained of is a privative clause decision therefore, requires an examination of the ground of review.
In the case before me the Tribunal concluded that the applicant's claims were not credible. In its decision record at CB 135.3 the Tribunal said:
“A lack of detail and substance of the information before the Tribunal in supporting the application the ICI (Independent Country Information), which is directly contrary to that presented by the applicant and the inconsistency between the oral evidence and that earlier presented by the applicant in his application and the vague and general answers (and assertions) given to the Tribunal has led to the conclusion that the application is therefore not credible.”
The Tribunal's decision record shows that the Tribunal addressed each of the applicant's claims as summarised by the Tribunal at CB 122.5-Items I-VI. The Tribunal's “Findings and Reasons” commence with the Tribunal's account of what occurred at the hearing and the Tribunal records the applicant’s additional information provided against each of the claims at the hearing. The applicant's claims can be summarised as having suffered actual harm at the hands of the Lebanese army because of his involvement with the Maronite Christian Lebanese Forces and his association with Samir Gaga (or Geagea) one of its leaders. In relation to specific claims the Tribunal found:
1)At CB 131.3 and CB 133.5 that the Tribunal did not accept the applicant's claim that he was the person referred to in a newspaper article (see CB 102 to CB 106), which he had submitted at the hearing before the Tribunal, that described amongst other things the invasion by the Lebanese army of a home of a person with a similar name to the applicant. The Tribunal found the article was strongly biased in favour of the Lebanese forces and was really concerned with a person who was not the applicant.
2)At CB 134.1 the Tribunal did not accept that a communication and letter (CB 107 to CB 111) submitted in support about the incident in the newspaper article were genuine.
3)At CB 134.3 the Tribunal noted that the great majority of detail of the applicant's claims was given at the hearing and were not provided earlier, either to the respondent Department or in the application for review to the Tribunal. The Tribunal did not accept the applicant's explanation that he was waiting for documents to arrive from Lebanon.
4)At CB 134.5 the Tribunal was unable to accept that a cement renderer would have been able to “maintain a property portfolio, maintain a large family” yet still be on an “alleged wanted list” and be of such adverse interest to the authorities.
5)At CB 134.7 the Tribunal found that he had delayed for one year after arrival in Australia before applying for a protection visa.
6)At CB 134.9 the Tribunal found that his fear of adverse consequences, if he were to return to Lebanon was groundless, given that he had returned to Lebanon for several months in 2001 with no adverse consequences.
7)At CB 134.10 the Tribunal did not accept that if the applicant was on a wanted list, as he stated, that he would then be able to depart Lebanon legally through an airport with strict exit procedures.
8)The Tribunal's assessment of the applicant (at CB 134.6) was that he was not “forthright and upfront” and based on his vague answers, the differences between his earlier written claims and oral evidence and the fact that country information, which it preferred, was contrary to his evidence, it found he was not credible. The Tribunal concluded (CB 135.5) that the applicant did not have a genuine subjective fear of persecution if he were to return to Lebanon.
At the hearing before me Ms. Allars appeared for the respondent Minister and Mr. Stanton appeared for the applicant. Mr. Stanton explained that that he ran an organisation called Cedar Watch, which is a human rights organisation and that he had acted for many Lebanese refugees throughout the world. The Court acknowledges Mr. Stanton's assistance in this context in this matter. Nonetheless, grounds 1, 2, 4 and 5 of the application set out the orders sought without identifying any ground for review. They are in effect unsupported assertions. Ground 3 in the application claims that the applicant's wife and children were not heard by the Tribunal and were thereby denied natural justice. At the hearing before me this issue was not pressed but in any event:
1)I accept the respondent submissions that s.422B of the Migration Act as it applies Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule.
2)The applicant's wife and six children applied to the respondent Department for protection visas as members of the applicant’s family unit with no separate claims of their own. This is reinforced by the fact that they completed “Part D” of the application forms submitted to the respondent Department.
3)There is nothing in the material before me, relevantly the application for a protection visa, application to the Tribunal and supporting statements of any separate claims by the family members.
4)Nor is there anything to show that the applicant made any such claims on their behalf at the hearing before the Tribunal's.
5)The application for review before the Tribunal contains only one applicant (see CB 88 to CB 91). At CB 88 the Tribunal application form provided space for a number of additional applicants, this is blank. At CB 91 the spaces for signature by additional applicants are also blank. No additional applicants are named, nor do any additional signatures appear, nor is there anything before me to show that the applicant before me purported to act on their behalf before the Tribunal.
6)In light of all the above it is surprising therefore that the Tribunal has:
i)Included the wife and six children as applicants in its title page reference to applicants in the decision record. (CB 118)
ii)Referred to “the applicants are a husband wife and six children” in its decision record. (CB 119.1)
7)Nevertheless, it is clear the Tribunal recognised:
“That only the first named applicant has made specific claims under the Refugees Convention.”
8) Further, as the respondent submits, that when the Tribunal afforded the applicant a hearing before it, there was a clear opportunity for the wife and children to also attend the hearing. The response to “Hearing Invitation Form” at CB 97:
i)Asks the applicant that if his application includes other family members do any family member want a separate hearing. The applicant’s answer was “No”.
ii)The applicant on the same form indicated he only wanted to call two witnesses neither of whom was the wife or any of the six children.
It is clear that in all the circumstances the Tribunal was wrong in referring to the wife and six children as applicants before it but in all the circumstances this error does not support the assertion in the application before me that the wife and children were denied the opportunity for a hearing. The sole applicant before the Tribunal was given the opportunity for the wife and children to come along to a hearing. Only the applicant made refugee related claims and there is nothing before me to show that he on their behalf, or even the wife and children separately, sought to be heard before the Tribunal. On this basis this assertion is not made out.
As Mr. Stanton's submission appeared to argue new grounds, I sought clarification at the hearing before me as to the grounds on which he was now seeking to rely. Ms. Allars for the respondent neither consented nor opposed Mr. Stanton's reliance on those submissions in lieu of amended application and the hearing proceeded on that basis. Mr. Stanton therefore summarised the grounds that he was now seeking to rely on as:
1)The applicant complained about the process by which the Tribunal arrived at the adverse credibility finding in that the applicant was never adverted to the fact that there were grave doubts on the part of the Tribunal about the applicant’s credibility.
2)That the applicant was not given an opportunity in relation to a number of specific instances to comment on the adverse view that the Tribunal took of material presented by the applicant and relied on other independent country information without having put that information to the applicant for comment.
3)The applicant complains about the Tribunal's finding in relation to the commonness of the applicant’s name and subsequently the finding by the Tribunal that the person arrested as named in independent country information was not the applicant. The applicant's complaint in this regard is that the applicant was not on notice of this issue, that is the commonness of the name, and that this was not sufficient for the Tribunal to base its subsequent finding that the article did not refer to the applicant.
To the extent that the applicant now, by way of submission, seeks to rely on the alleged failure of the Tribunal to put to him at the hearing before it adverse country information or adverse inferences drawn by the Tribunal, on the country information before it, the applicant has brought no evidence whatsoever to the Court to support this claim. It is not sufficient to rely purely on what may appear to be the case from the Tribunal's decision record. The full Federal Court in NAOA vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCFCA 241 said at [21]:
“We cannot accept this submission [as to what happened at the hearing before the Tribunal] for several reasons.
For one thing, as the respondent submitted, the appellant’s case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this ‘appeared’ to be the case ‘from the record of the [Tribunal] decision’. On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below). The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.”
In relation to the Tribunal's reliance and use of independent country information and the assertion that a failure to put such information was a failure to accord natural justice, relevantly, as Ms. Allars for the respondent submits, s.422B of the Act applies to this decision and s.424A of the Act is taken to be, inter alia, an exhaustive statement of the requirements of the natural justice hearing rule as it relates to the giving of certain information to the applicant by the Tribunal. In the case before me, it is clear the Tribunal relies extensively on independent country information in making its decision. Other than for the Amnesty International report for January December 2001 (CB 274 to CB 279) referred to by the Tribunal at CB 129.7 in its decision record and the article submitted by the applicant at the hearing (CB 102 to CB 106) referred to by the Tribunal in its decision record at CB 133.5, with which I will deal with specifically below, the remainder of the extensive country information is clearly not specifically about the applicant and its relevance to the Tribunal's decision was that it concerned a class of persons of which the applicant claims to be a member. On the most recent Full Federal Court authority this information fell within the exception contained in s.424A(3)(a) of the Act and therefore did not need to be put to the applicant (Minister for Immigration and Multicultural and Indigenous Affairsv NAMW [2004] FCAFC 264). Further, and in any event, in response to how Mr. Stanton initially put the applicant's complaint, it is clear from the Tribunal's decision record that the substance of material adverse to the applicant was put to the applicant. At CB 130.2 the Tribunal records:
“A number of issues of concern were then put the applicant and ICI where it conflicted with the information presented by him. He was asked to comment on these matters and during the course of questioning he should where relevant and expand or clarify her (sic: his) application.”
Further the Tribunal specifically records at CB 131.6 to CB 132.4 six bullet points, where it says it put to the applicant independent country information that appeared to be adverse to the applicant's claims.

The applicant's submission is that adverse inferences and findings were not put to him at the hearing to enable him to respond and that this was a denial of natural justice. In relation to this there is authority that the Tribunal is not required to provide an opportunity for comment on its thought processes on the way to making a decision, see Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S154/2002 [2003] 201 ALR 437 at 54 per Kirby J. and at 85 to 86, referring also to Commissioner for ACT Revenue v Allophone Pty Ltd (1994) 40 FCR at 592. This general proposition is qualified by the requirement that a decision maker should provide an opportunity for comment on any adverse condition which would not on this be open on the material supplied by the applicant. The key issue is that the applicant should not be caught unawares as McHugh J. said in Re Refugee Review Tribunal; Ex parte Ala (2000) 204 CLR 82 at [101]:
“One of the fundamental rules of the hearing doctrine is that a decision maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision maker has warned that person of the risk of that finding being made or unless necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions regarding the potential adverse finding.”
In the case before me I have already referred to the instances of adverse country information which the Tribunal says it put to the applicant. Further, the Tribunal's decision record shows that he did put to the applicant additional issues of concern:
1)The delay in making the protection visa application after arrival in Australia. (CB 132.7)
2)The “immense amount” of additional and in some cases “inconsistent detail” he provided. (CB 132.8)
3)The Tribunal's concerns about the genuineness of the communication from the Mayor of the applicant’s village and a letter from the Parish Priest.( CB 133.1)
4)That the applicant returned to Lebanon safely in 2001. (CB 133.3)
In the case before me it is clear that in relation to each of these points and in relation to the country information above (at this stage other than that as referred to in paragraph 12 above) on which it relied, the Tribunal had put its concerns to the applicant and he had been provided with an opportunity to respond. On the Tribunal's account of what transpired between it and the applicant, it would have been clear to the applicant, given the Tribunal raised its concerns with him, of the possibility of adverse findings in relation to these matters. There is nothing before me to show that the Tribunal relied on a matter not raised with the applicant as indicated above.

In any event, as Ms. Allars for the respondent submitted, the review conducted by the Tribunal was subject to s.422B of the Act and to the extent that Division 4 of Part 7 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that it deals with, then s.424A deals with information that must be given to the applicant. Section 424A(1) provides the Tribunal must give to the applicant information that would be the reason or part of the reason for affirming the decision under review. But clearly s.424A is concerned with knowledge of the fact or circumstance communicated to or received by the Tribunal, it is not concerned with the thought process of the Tribunal. In Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 His Honour Justice Sackville said:
“It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.4242A(1).”
Dealing specifically with the examples raised by Mr. Stanton in written submissions and subject to the above:

1)The applicant claims that in relation to items 1, 2, 3, 4, 5 and 6 found at CB 130 (the bullet points) that at no point does the Tribunal reveal its reasons which led to the rejection of the applicant's claims and that the applicant was denied natural justice because the potential adverse findings were not put to him for comment. I have already dealt with the latter complaint. In relation to the former, I again note the effect of s.422B, but in any event, the Tribunal did give its reasons for rejecting these claims.
2)At CB 134.3 to CB 135.1 the Tribunal gives its reasons for rejecting the applicant's claims in relation to items 1, 2 and 5.

In written submissions, Mr. Stanton asserted at paragraph 9 (b) that the Tribunal noted the commonness of the name of the applicant and that the Tribunal denied the applicant procedural fairness when it subsequently found in response to a newspaper article put to the Tribunal by the applicant on 6 May 2003 (the day of the hearing) that references made in the article to a person named as “name in newspaper article” were not references to the applicant. At the hearing before me, Mr. Stanton developed this argument to be a complaint that the Tribunal had not complied with s.424A(1) of the Act in that the Tribunal failed to give the applicant written notice of the material contained in an “Amnesty International report - Lebanon Annual report 2002” reproduced at CB 274 to CB 278. In particular the complaint was that there had been a failure to give the applicant notice of the information in this report describing a demonstration which occurred in April 2001 resulting in four Lebanese Forces supporters being detained, one of them being named in the Amnesty report as “name in Amnesty report” (see CB 275.4). Subsequent to the hearing before me both Mr. Stanton and Ms. Allars provided additional written submissions specifically in light of the High Court's decision in SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) HCA 24. The background to the argument is that on 6 May 2003, the day of the Tribunal hearing, the applicant submitted a newspaper article being from the An Nahar newspaper of Beirut dated Monday 23 April 2001 (CB 104 to CB 106). The Tribunal had the article translated during the course of the hearing and an excerpt in English appears, at CB 102 to CB 103, which provides a description of a demonstration on 21 April 2001 in the applicant's home town of Becharri describing the Lebanese Army storming the house of a person by the name of “name in applicant’s hometown” and that some Lebanese Forces supporters were subsequently detained by the Lebanese Army.
The Tribunal's decision record relevantly:
1)At CB 131.3 refers to the newspaper article and that the applicant at the hearing before it, added to his claims almost word for word detail, exactly as appearing the same as in the article. The Tribunal noted that the claim was that the article stated that the person by a similar name to that of the applicant had his home invaded by the Lebanese Army and security people and that the article alleged that the person who was claimed by the applicant to be himself was beaten in front of his family, his elderly mother was manhandled and his wife terrorised. The claim then is that he was subsequently detained and that he was one of the people referred to as having being detained, although in this part he was not referred to by name.
2)At CB 132.5 the Tribunal noted the difference in the spelling of the applicant's name and that of his wife and six children. It noted that the applicant's reply at the hearing before it that his name was “applicant name” (as asserted in his application to the Tribunal) not any of the other versions of this name using similar spelling, and that there had been a mistake in the spelling of his family name. The Tribunal also relevantly noted that the applicant had replied that there were 10,000 persons with a similar name to his name in Becharri, his home village and that the Tribunal expressed surprise as to that number as there were under 50,000 people in the village of Becharri in total.
3)At CB 133.5 the Tribunal noted its difficulties with the article submitted by the applicant in support of the claim that he had been detained by the Lebanese army on that day and noted its concerns with the article and the information supplied by the applicant himself that out of a population of under 50,000 people there were 10,000 people in his town with the same name as the applicant and reached a finding that the person who was arrested on the day in the article was not the applicant but one of many other persons with “name in applicant’s hometown” who resided in the applicant's home town. On this basis the Tribunal also did not believe that the applicant’s house was invaded by the Lebanese army on the same date (CB 133.9). In reaching this finding the Tribunal noted that the Amnesty International report, which referred to the arrest of four Lebanese Forces supporters, but made no mention of a house invasion by the authorities. The Tribunal had earlier referred to the existence of this article at CB 129 .7 where it noted that the article indicated that there was a person named “name in newspaper article”, who was among four Lebanese forces supporters, who was detained in Becharri after the demonstration on 21 April 2001. In relation to the newspaper article, it is clear that this was information provided by the applicant himself to the Tribunal and as such falls within the exception contained in s.424A(3)(b) from the requirement for the Tribunal to put this information to the applicant pursuant to s.424A(1). The issue however is whether the Amnesty International report, and in particular the information contained in that report referring to the demonstration in Becharri, should have been put to the applicant pursuant to s.424A(1) of the Act in the way as held by the majority in SAAP, that is that it should have been put to the applicant in writing.
Firstly, it should be noted that the information contained in the Amnesty International report relevant to the consideration here, is that four Lebanese forces supporters were arrested in April (2001) following a sit-in protest held in the village of Becharri, some 95 kilometres north-east of Beirut, against the continuing imprisonment of the Lebanese Forces leader. A person named as “name in newspaper article”, with others was reportedly held for three days at a Ministry of Defence detention centre before being released without charge.
In relation to the matters relevant to the Tribunal's decision, being the information in the newspaper article and the oral evidence about 10,000 people with “name in applicant’s hometown” living in Becharri, this information was given by the applicant himself for the purposes of the application for review by the Tribunal and clearly this is information which fell within s.424A(3)(b) of the Act. Similarly, the commonness of the name of the applicant was not information contained in the Amnesty International report, but arose out of evidence given by the applicant himself at the hearing before the Tribunal. This also then falls within the exception in s.424A(3)(b) of the Act.
The second question is whether of the Tribunal was under a duty pursuant to s.424A(1) to provide the Amnesty International report to the applicant by way of writing, and provide the applicant with an opportunity to comment on the information contained in the relevant paragraph. I accept Ms. Allars’ submission in this regard that while the relevant paragraph of the Amnesty International report referred to particular individuals, that there was no evidence before the Tribunal to support a finding that this paragraph was specifically about the applicant and that the duty under s.424A(1) does not apply to information which is not specifically about the applicant or another person and is just about a class of person of which the applicant or other person is a member within the meaning of s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairsv NAMW [2004] FCAFC 264 and WAJW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 330). Apart from the different spelling in the Amnesty International report of the name to the preferred spelling by the applicant of his name, which could be explained by a translation, nonetheless the information before the Tribunal was that the person referred to in the Amnesty report could have been any one of the other 10,000 people which the applicant said lived in Becharri with that name. There was nothing whatsoever in the Amnesty report to show that it was referring specifically to the applicant, but in any event the reference to the name was not the critical issue relied on by the Tribunal in rejecting the applicant claims. The Tribunal's reference to the Amnesty International report in its “Findings and Reasons” was not in regard to the name. The Tribunal's decision turned on a different aspect, namely the commonness of the name. The report did note the arrest of four Lebanese Forces supporters at the relevant time, but this was an issue that was adverse to the applicant. In fact this particular point was consistent with the applicant’s claims. In relation to the Tribunal's reference to the Amnesty International report as making no mention of a house invasion, I accept Ms. Allars’ submission in this regard, that the Tribunal's reference in its reasons to the absence of any mention in the Amnesty International report of a house invasion by the authorities was part of the Tribunal's thought processes and was a subjective evaluation of the information before it, rather than information itself (see VAF vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24], Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 and W50/2001 vMinister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1305 at [22] per Healy J.). In any event, in relation to the absence of any mention in the Amnesty International report of a house invasion by the authorities, it is clear that the Tribunal's decision in relation to the claim of the house invasion and the newspaper article, which the applicant provided in support of this claim, turned on the view that the Tribunal took of the article itself, the commonness of the applicant's name in his hometown, the applicant's delay in submitting his application for a protection visa after arrival in Australia and his return to Lebanon from Australia for several months in 2001 with no adverse consequences. It was the lack of detail and substance of information presented by the applicant in support of his application, inconsistency between the whole evidence and the different versions presented by the applicant and his vague and general answers at the hearing before the Tribunal that led it to the conclusion that the application is not credible. To that extent the Tribunal relied on independent country information to confirm views already formed by the Tribunal.
Mr. Stanton also submitted in his written submissions that there were a number of disturbing features in the Tribunal's decision:
1)That in relation to the finding of the commonness of the applicant's name, that this was never put to the applicant and that the Tribunal made this finding as against the applicant's assertion in uniformity with the document he was relying on. The claim that the common aspect of the name was not put to the applicant is contradicted by the Tribunal's record at CB 133.9 where the Tribunal says:
“The Tribunal has also noted the commonness of the name (put to the applicant not published under s.91X) in Becharri, as admitted by the applicant himself.”
No evidence to the contrary has been put forward by the applicant. The applicant’s claim that this finding was “against the evidence” appears to be a request for impermissible merits review.
2)That the finding by the Tribunal in relation to a letter and a communication at CB 107 to CB 110, provided by the applicant in support of his application during the hearing before the Tribunal, that it did not accept that the communication of letter were genuine, was a finding against the evidence and that the applicant was never confronted by the allegation that the letter and communication were not true. Again the first appears in the circumstances to be seeking impermissible merits review. As on the material before it, it was open to the Tribunal to have concerns about the genuineness of both these documents, in that on their face, the Tribunal noted they were not verified of certified and that the information contained inconsistencies with what the applicant himself had put forward and that the narrative in both, although from different sources, was inexplicably almost identical. In relation to the second aspect of this complaint, this is again factually incorrect. At CB 133.1 the Tribunal specifically notes that it put its concern to the applicant in regard to the genuineness of both the communication and the letter and that it gave the reasons for this concern. The applicant has produced no evidence whatsoever to contradict the Tribunal's record in this regard.
3)That the Tribunal erred in rejecting the applicant's account of why he belatedly brought forward the great amount of material that he relied on at the hearing before the Tribunal and in so far as this reflected on his credibility, he should have been given an opportunity to comment on the Tribunal's adverse finding in this regard and in particular to the Tribunal's adverse findings in relation to the property, the delay in making refugee claims, his return to Lebanon and the lack of detail and substance in his claims, the inconsistencies and the Tribunal's failure to highlight these inconsistencies. Again, these are all matters that either fall into the category of a request for impermissible merits review or a complaint that the Tribunal's thought processors were not put to the applicant for comment. For all the reasons given above these complaints also cannot be made out.

The Tribunal did not believe the applicant's claims because of the lack of detail and substance, inconsistencies and the late submission of the high volume of material in circumstances where it was open to have submitted this material at a much earlier time, his vague and general answers at the hearing before the Tribunal and the information that he supplied in relation to which the Tribunal had doubts and which as compared to independent country information was not sustainable. On the material before me it was open to the Tribunal as the primary decision maker, to make the finding is that it did, including the findings as to credibility. For the reasons set out above I can see no failure on the part the Tribunal in relation to its relevant statutory duty to put certain information to the applicant. I can see no jurisdictional error in what the Tribunal has done and how it made its decision and on this basis the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate: Wagma Aziza

Date: 23 August 2005