SZLNW v Minister for Immigration - [2008] FMCA 85

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNW v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 85

MIGRATION – RRT decision – Applicant from Lebanon who served in South Lebanese Army prior to 1985 – Tribunal found no well‑founded fear of persecution – no failure to address claims nor to apply real chance test – no failure to address future risks – findings open on the evidence – no breach of obligations to invite comments – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(b), 425, 501

Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZATV v Minister for Immigration & Citizenship [2007] HCA 40
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZFDV v Minister for Immigration & Citizenship [2007] HCA 41
SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572
SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486

Applicant:

SZLNW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3300 of 2007

Judgment of:

Smith FM

Hearing date:

22 January 2008

Delivered at:

Sydney

Delivered on:

22 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr B Bradley

Solicitors for the Applicant:

Henry Davis York

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3300 of 2007

SZLNW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant came to Australia as a permanent migrant in 1987 from Lebanon. He has family members here, including a daughter, but unfortunately has incurred the cancellation of his residence visa under s.501 of the Migration Act 1958 (Cth) on 18 October 2006. He was subsequently held in immigration detention, and was there assisted by a solicitor to make an application for a protection visa on 14 August 2007.
His claims for protection against return to his country of nationality, Lebanon, were clarified by the applicant when he attended a hearing of the Refugee Review Tribunal on 12 September 2007, in the course of an appeal from an adverse decision by a delegate made on 17 August 2007. The Tribunal essentially accepted the evidence that he gave it, and did not draw adverse inferences from its inconsistencies with how his case had been presented to the delegate. The Tribunal summarised his claims at the start of its “Findings and Reasons”:
… He claims he was an SLA soldier in Lebanon for approximately two and half years from 1982 until 1985. He is now fearful of being subjected to persecution by Hezbollah, the Lebanese authorities, persons he arrested while he was with the SLA, and others in Lebanon, because of his involvement with the SLA.
The Tribunal considered extensive country information concerning the history of Lebanon and of the South Lebanon Army. This was a military group which operated from 1976 in the course of the Lebanese civil war. When the Israeli Army occupied areas of southern Lebanon, the SLA collaborated with the Israelis. After the Israeli withdrawal in 2000, the SLA ceased to operate, and thousands of its members were taken into custody by the Lebanese government and were tried in military courts and received a variety of punishments. Other SLA members were given refuge in Israel and other places.
The Tribunal had extensive information which addressed whether former members of the SLA were at risk during the subsequent years, if they were present in Lebanon. In particular, there was information showing a recurrence of persecution of some former SLA members, following hostilities in 2006 between Hezbollah and the Israelis in southern Lebanon.
The Tribunal’s reasoning concerning the applicant’s claims was set out briefly under the heading “Findings and Reasons” (numbering added):
1.The Tribunal is satisfied that the applicant has a genuine fear of Hezbollah, the Lebanese authorities, persons he arrested during his SLA service, and others, in Lebanon because of his former association with the SLA. However, after considering information from external sources, regarding the current status of the SLA in Lebanon and the treatment of its former members, the Tribunal finds that the applicant’s fear is not well‑founded. The Tribunal has formed the view from the information summarised above, including the information provided by the applicant after the hearing, that former members of the SLA are not commonly targeted by Hezbollah or anyone else in Lebanon.
2.The Tribunal has considered evidence which indicates that after Israel withdrew from Lebanon in 2000, members of the SLA were detained, tried, and imprisoned. The Tribunal noted that the trials did not conform to international standards of fairness. The Tribunal has also considered more recent information which indicates that during the 2006 war with Israel, some SLA members were detained on suspicion of assisting or collaborating with Israel. However, the Tribunal is satisfied that in the few recent instances when SLA members have been targeted by the authorities, Hezbollah, or any one else in Lebanon, those targeted were easily identifiable members of the SLA, mostly from southern Lebanon where the SLA was active, and implicated in activities suggesting collaboration with Israel. The Tribunal finds that the applicant does not have such a profile as he ceased to be involved with the SLA over twenty two years ago, he is not from southern Lebanon, and he has not been involved in any activities which might suggest that he is either assisting Israel or collaborating with Israel. The Tribunal finds that the applicant will not attract the adverse interest of Hezbollah, or anyone else opposed to the SLA in Lebanon, as he is a person from northern Lebanon who ceased to be involved with the SLA many years ago. The Tribunal finds that he does not have the profile of an individual who will attract the adverse interest of Hezbollah or any one else in Lebanon because of his former association with the SLA.
3.The Tribunal considered the applicant’s associated claim that he may be targeted by persons he arrested during his SLA service. He claims they will now seek revenge. However, the applicant could not name or identify those persons and the Tribunal finds that the risk is remote that persons arrested by the applicant over twenty years ago will now, or in the reasonably foreseeable future, seek to harm [sic: him].
4.The applicant claims he will be arrested and imprisoned in Lebanon for his involvement with the SLA. However, after discussing with the applicant his activities with the SLA, the Tribunal has formed the view that the applicant was an ordinary SLA member, with ordinary low ranking duties, who was not implicated in any particular incident which may still be of interest to Hezbollah or anyone else opposed to the SLA. The Tribunal is aware that SLA members were detained and imprisoned after Israel withdrew from Lebanon in 2000. However, the Tribunal is satisfied by information from external sources that the period of widespread arrests and detention of former SLA members is now over and former SLA members in Lebanon are no longer commonly investigated or imprisoned as they were in 2000. The Tribunal is satisfied that the applicant’s involvement with the SLA will not be of particular interest to Hezbollah or any one else in Lebanon and [sic: it] finds that his fear of arrest and imprisonment in Lebanon is not well‑founded.
5.Accordingly, the Tribunal finds that the applicant’s fear of harm in Lebanon, by Hezbollah and others, due to his former association with the SLA, is not well‑founded. The Tribunal finds that the applicant does not have a well‑founded fear of persecution in Lebanon for reasons of political opinion or any other Convention reason.
The applicant now asks the Court to set aside the Tribunal’s decision handed down on 28 September 2007, which affirmed the delegate’s decision. The applicant also asks the Court to order the Tribunal to reconsider his refugee claims. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a person entitled to protection under the Refugees Convention, nor whether he should be granted permission to stay in Australia for that or any other reason.
The applicant has been represented today by counsel who has ably presented three grounds of review, which are set out in a further amended application and have been elaborated and refined in the course of written and oral submissions.

Ground 1

This ground is:
1.That the second respondent made a jurisdictional error and misconceived its statutory duty by failing to apply the correct test that there was a real chance of persecution to the applicant in assessing whether the applicant’s fear of persecution was well founded.
Particulars
(a)The second respondent found that the applicant’s genuine fear of persecution was not well founded by reason that former members of the SLA are not commonly targeted by Hezbollah.
(b)The second respondent found that the applicant’s fear of persecution was not well founded by reason that in the few recent instances when SLA members have been targeted, those targeted were easily identifiable members of the SLA, mostly from southern Lebanon where SLA was active, and implicated in activities suggesting collaboration with Israel.
(c)The second respondent found that the applicant’s fear of persecution was not well founded by reason that the period of widespread arrests and detention of former SLA members is now over and former SLA members in Lebanon are no longer commonly investigated or imprisoned as they were in 2000.
(emphasis in original)
As refined in argument as I understood it, counsel submitted that the reasoning of the Tribunal in paragraph 2, and also in the Tribunal’s references in paragraphs 1 and 4 above to “commonly”, shows that it assessed the applicant’s refugee claims only by considering whether he was a person who had the profile of the persons who were targeted in the “few recent instances”, which the Tribunal appears to have identified from the 2006 events. He argued that the Tribunal, when concluding that the applicant “does not have the profile of an individual” having their characteristics or background, did not assess the chance that the applicant had other elements in his history which would leave a “real chance that he might be targeted”, notwithstanding that he did not have the common characteristics of the persons who were targeted at that time. In short, the Tribunal failed to ask the question required by the definition of “refugee” as interpreted by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and subsequent cases, when deciding whether the applicant’s fears of persecution were “well‑founded” by reference to real chances which might be less than probabilities.
Another way that this submission might be understood is that the Tribunal addressed only a part of the claims made by the applicant on which his fear was based, being the part of his claims which sought to draw a parallel between his situation and that of members of the SLA who had been persecuted in recent times. Having not been persuaded to draw that analogy, the Tribunal failed to go on to address whether he had other characteristics arising from his involvement in the SLA which left him with a real chance of persecution. The Tribunal’s jurisdictional task was thereby not completed (compare the principles in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1).
In my opinion, counsel’s arguments in support of these submissions focused on particular parts of the Tribunal’s reasoning in isolation from its general expression. I consider they invited the Court to engage in the exercise which the High Court discouraged in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 277 and 291. The Tribunal’s reasoning in the present case should not be analysed on the basis that it contained a closely reasoned stream of conclusions, in which its general findings relate only to its preceding specific conclusions.
Rather, in my opinion, the Tribunal made a series of findings addressing all the various elements in the claims which the Tribunal perceived to have been put forward. I consider that, for example, it would not be a fair understanding of the Tribunal’s reasoning to isolate para.2 above as containing a self‑contained and complete explanation for its decision to affirm the delegate’s decision. Even within that paragraph, I would not read the generality of the last sentence as failing to address elements in the applicant’s personal background which were not shared with the commonality of former SLA members who had been previously persecuted.
It was relevant and necessary for the Tribunal to address whether the applicant’s situation could be directly compared with the people who suffered persecution in 2006, so as to give rise to a well‑founded fear. There is no doubt that the Tribunal performed that exercise. I would not read its findings when doing so as showing that it excluded further consideration of the risks faced by the applicant by reason of his own background. The fact that in the next paragraph, para.3, the Tribunal specifically addressed a particular claim by the applicant to be at heightened risk, indicates that the Tribunal was alive to the need to address the applicant’s individual circumstances that were put forward as the basis for his fear, as well as his general claim that he was at risk merely as a former member of the SLA for two and a half years.
I therefore am not persuaded on a full reading of the Tribunal’s reasoning, that it failed to address all elements in the refugee claims presented by the applicant arising from all his particular background in the SLA and otherwise.
I also am not persuaded that the Tribunal failed to appreciate the need to address the real chance of persecution, including an assessment of risks whose probability of happening was less than 50 per cent.
The current jurisprudence in relation to the real chance test establishes that it is not necessary for the Tribunal to enter into a discussion, and no adverse inference should be drawn from the absence of discussion, as to the chance of harm happening which is less than probable, if the Tribunal makes findings of fact without doubt which allow a conclusion that a fear is not well‑founded (see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239‑241 and Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at 11‑14, which considered Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575‑576).
In the present case such findings are found in the Tribunal’s reasoning, in particular in the last sentence of para.4:
The Tribunal is satisfied that the applicant’s involvement with the SLA will not be of particular interest to Hezbollah or any one else in Lebanon and [sic: it] finds that his fear of arrest and imprisonment in Lebanon is not well‑founded.
In the context of this finding and the reasoning which preceded it, I would not draw an inference that the Tribunal failed to appreciate and apply the real chance test. I am therefore not persuaded that Ground 1 is made out.

Ground 2

This ground is:
2.That the second respondent made a jurisdictional error in that it failed to consider relevant considerations in its determination as to whether the applicant’s fear of persecution was well founded.
Particulars
(a)The second respondent failed to consider the likelihood that events similar to those giving rise to the persecution of former members of the SLA in 2000 and 2006 would arise after the applicant was returned to Lebanon.
(b)The second respondent failed to consider the risk of harm to the applicant by Hezbollah operating throughout the whole of Lebanon, including Beirut and in the north of Lebanon after the applicant was returned to Lebanon.
As developed in counsel’s submissions, it was argued that the Tribunal failed to address considerations arising in the exercise of its jurisdiction, being whether the harms feared by the applicant were at risk of occurring were the applicant to live anywhere in Lebanon, and also were there to be a recurrence of events such as occurred in 2006 which led to the most recent incidents of persecution of former SLA members. It was argued that there was material before the Tribunal which raised the possibility of such a recurrence and of future reprisals against former members of the SLA everywhere in Lebanon, notwithstanding the lapse of time. It was submitted that the material suggested the possibility of such recurrences occurring in the “reasonably foreseeable future” which, it was common ground, needed to be addressed by the Tribunal.
Counsel referred, in particular, to a submission sent to the Tribunal by the applicant’s representatives, the Refugee Advice + Casework Service, in a submission dated 24 September 2007, which included the following passage:
4.A real possibility of further outbreaks of violence towards former SLA members in the future
In relation to the current situation in Lebanon, Amnesty International⁹ made the following comment:
Despite some improvements in the human rights situation in Lebanon, serious human rights violations continue to be perpetrated against minority groups. The Government’s inability and unwillingness to control armed militant groups like Hizbullah within Lebanon further increases the risk of persecution for former Israeli collaborators. Judicial procedures and Constitutional safeguards are subject to dangerous and unpredictable political forces both within and outside Lebanon. The war has consolidated political divisions and reduced the likelihood of minority groups receiving adequate protection from non‑government militia like Hizbullah … The possibility of reprisal attacks in the area cannot be excluded.
The recent conflict with Israel has heightened tension between Hezbollah and Israel. It is foreseeable that this tension could easily erupt into further outbreaks of attacks upon former SLA members or Israel’s perceived supporters in Lebanon again.

Amnesty International: CI Lebanon November 2006, copy enclosed.
(emphasis in original)
He argued that nowhere in the Tribunal’s reasoning under the heading “Findings and Reasons” was there a discussion of this part of the Amnesty Report, and that the Tribunal’s reasonings suggested that it had only addressed whether the applicant would have been at risk in the past. He argued, by analogy with SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572, that the Tribunal failed to “address the reasonably foreseeable future in the context of the claims made” (see [28] of Allsop J’s judgment in that case), and that “the Tribunal did not look at all the material from the perspective of the reasonably foreseeable future and did not address all the claims in that light, having regard to the material placed before it” (see [29]).

However, I am not persuaded that the Tribunal overlooked the passage from the Amnesty Report which was presented by the applicant’s advisers. In its reasons it referred to receiving their submission, and summarised its contents:
The Tribunal received a reply from the applicant, prepared by his adviser, on 26 September 2007. The adviser provided a submission arguing that the applicant’s fear was well‑founded because there was compelling evidence from external sources in support of the applicant’s claim that former SLA members were still targeted in Lebanon. The adviser argued that Hezbollah was subjecting former SLA members to persecution and the threat of harm has increased significantly since the outbreak of hostilities with Israel in 2006. The adviser referred the Tribunal to several reports dealing with reprisals against SLA members who were suspected of collaborating with Israel before and after the 2006 conflict. The adviser argued that the applicant will be at risk of imprisonment and denied protection by the State because he was with the SLA.
Moreover, as counsel for the Minister submits, the Tribunal’s reasoning in para.2 (see above) directly addressed whether in the future the applicant would be at risk by reason of having the “profile” which it found to have been held by the persons who were persecuted in 2006. It was therefore directly addressing the applicant’s claim that he would in the future be at the same risk as the persons who were persecuted in the past.
I am not persuaded that the Tribunal’s reference to the “reasonably foreseeable future”, both in its general extraction of principles, and also expressly in its reasoning, for example, para.3 extracted above, may be disregarded for the reasons which Allsop J found in SZGHS. I do not find the circumstances of the present Tribunal’s reasoning analogous with the reasoning of the Tribunal in that case. I therefore am not persuaded that the Tribunal failed to address its consideration of the risks of the applicant to the relevant future period.
Nor do I accept the submission that the Tribunal failed to address the future position of the applicant in every part of Lebanon. It is correct that the Tribunal assessed the implications of the applicant’s past history as a person “from northern Lebanon” who had joined the SLA in its operations in southern Lebanon, but I do not find from these references that the Tribunal narrowed its consideration of the risk facing the applicant to any geographic region of Lebanon. The Tribunal’s findings are general in nature, and I would understand them to relate to the whole of Lebanon. I therefore do not consider that the issues which arise in relocation cases which were addressed by the High Court in SZATV v Minister for Immigration & Citizenship [2007] HCA 40 and SZFDV v Minister for Immigration & Citizenship [2007] HCA 41 arise in this case. I therefore am not satisfied that the points argued under Ground 2 have been made out.

Ground 3

As amended at the hearing, this ground is:
3.That the second respondent failed to comply with section 424A and/or section 425 of the Migration Act 1958 in that it:
Particulars
(a)failed to give clear particulars to the applicant that the second respondent would not be able to reach a favourable decision by reason of information which it relied on to find that the applicant could not name nor identify persons who would seek to target him by reason of him having arrested them during his SLA service and accordingly was not a person to whom Australia owed protection obligations; and/or
(b)failed to invite the applicant to give evidence and present arguments relating to the issue of whether the applicant could name or identify persons who would seek to target him by reason of him having arrested them during his SLA service.
Although this ground argues errors by reference to two separate procedural obligations on the Tribunal under ss.424A and 425, it is convenient to address both together, since they have a common substratum of concern in terms of procedural fairness. They challenge the Tribunal’s reasoning found in para.3, in which the Tribunal made a finding that “the risk is remote that persons arrested by the applicant over twenty years ago will now, or in the reasonably foreseeable future, seek to harm [sic: him]”.
This conclusion is based in part upon a finding that “the applicant could not name or identify those persons”. It is argued that unfairness attended the making of that finding of fact, because it was not put to the applicant: neither by way of a written invitation for comment which identified the possibility that that finding could be made; nor was that possibility sufficiently identified in the course of the hearing or otherwise, relying on SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.
Essentially, both arguments commenced from the proposition that the Tribunal’s conclusion that “the applicant could not name or identify those persons” was a surprising conclusion, and, indeed, was one which was not supported on evidence before the Tribunal, and that the applicant was deprived of an opportunity to point this out. No evidence was presented to the Court to establish that the applicant or his advisers were caught by surprise, nor that there was contrary evidence which would have been submitted.
As I have indicated, the Tribunal was in a situation at the hearing where it heard for the first time the full extent of the applicant’s claims. Previously they had been put to the Department on the basis that the applicant had a very limited and brief involvement in the SLA, for only two and a half months in 1982. At the hearing, the Tribunal was presented with a much longer history in the course of the applicant’s oral evidence, which was supported by a document and two witnesses. Ultimately, it essentially accepted that history. However, the circumstances in which the applicant’s claims emerged at the hearing certainly left the Tribunal in the position, which it explained at the end of the hearing (see page 21 of the transcript), that “I can’t give you any indication at this stage because I’ve got to think about everything again”.
In the course of the applicant’s evidence he had described his involvement in the SLA:
Tribunal:What exactly did you do for the SLA?
Applicant:At the beginning when I went there the SLA asked me to help with the building a barrack or prison at, on that moment it’s called LCM. Then after that they give me like check points work with the police, military police as a soldier. Whatever mission they give me, I will do it.
No further details were then given by the applicant of his police activities, although his witnesses later referred to him being a member of the military police. After the completion of their evidence, the applicant gave further evidence:
Tribunal:Right. So seeing. I see here that one’s a member of the army and one’s a commander of the army. So just run me through what you did, like what your status in the army was and what activities you were involved in in those two years.
Applicant:Like I said because when I start in the army they took us and start building the prison near [place].
Tribunal:Prison or barracks?
Applicant:It’s a prison and barrack. Before it’s a barrack for the army but been destroyed so we have to build it up and then made it after as a prison. Then I was involved with the MP because my commander is a MP commander and usually we do check point, we do investigations, we follow people if they run away from the army. It’s army work. And a mission if they give you mission to do what I have to do it.
Tribunal:So is that how you spent the rest of your time as a, in the MP division?
Applicant:MP divisions. Sometime they give you specific mission you have to do it, it’s not to do with the MP. They tell you to go do a mission and come back.
Tribunal:So what rank did you hold?
Applicant:I was a soldier.
The Tribunal then heard submissions from the applicant’s adviser, and at the end of the hearing the Tribunal said to the applicant:
Tribunal:The last thing I want to, I’d like to ask you is, OK, you were a regular soldier. Did you do anything, in your, while you were a SLA member which would bring particular attention to you. I mean were you involved in any incidents that would raise you above.
Applicant:The instances I can tell you about it is we used to pick up people coming from outside the zone to the zone and take them to the investigator and they got interrogated there. So some of my mission is to pick up people we know we suspect those people that are from outside the zone and they come as a spy or as a members of the militia coming inside the zones and other things. We used to investigate even members of the SLA involved in going work for the other sides and we used to investigate those people. This is very hard for me, those people, because they know me. Now they didn’t fall for the other side they’d be in position. I don’t know what their position now in the government or in the militia there. And this is a very concern for me. They know me very good.
Tribunal:Alright, anything else before we finish? Any questions or comments?
Applicant:I put all my case on the form. And I have [indistinct].
Tribunal:Well look, I can’t give you any indication at this stage because I’ve got to think about everything again. Especially this two to three year to two to three month thing that happened. I need to think about it again and maybe do a little bit more investigation. If I find anything that’s controversial or that is going to influence how I go with this and if its adversarial to you I’ll, I’ll send it to your advisor and she can talk to you about it and you can give me a submission. But probably not, but you know, I’ve still, all these issues that I have to think about. So I’d hope to get a decision to you within a couple of weeks particularly since you’re in detention. But maybe sooner but probably a couple of weeks from now.
Following the hearing, the Tribunal sent to the applicant’s representative a letter inviting comments on the articles which the Tribunal had referred to, concerning some general country information. It then received the submission from the applicant’s advisers which I have referred to above. It also received a further statement from the applicant, which maintained his fears of return. He sought to distinguish himself from other former SLA members:
28.I say that I would be of particular interest to Hezbollah and also the Syrian Alliance based on the length of time that I served with the SLA, the period of time that I served with the SLA, the special missions which I did, including picking up people from the zones, detaining suspects and taking them to their investigation and interrogation. My face would be known to these people who would now definitely want to harm me if they saw me. It is historical in Lebanon that revenge can come over a lengthy period of time. I do not want to risk my life for that. The UK Home Office cannot guarantee my safety. If I go to Lebanon and say I was a member of SLA I will spend my life in gaol. I have had enough gaol in my life.
…
32.When I was in military police in the SLA army, I did some missions and those missions include captured militants from outside the zone and inside the zone and I am worried and afraid maybe those people are in a position in the Lebanese Government as military, or police or intelligence. And if they know about me, I would be harmed if I go back to Lebanon as a reprisal or tortured.
On that material, in my opinion, it was open to the Tribunal to draw the inference that “the applicant could not name or identify those persons”. I do not accept the contrary submission made by counsel for the applicant. The applicant himself might not have expressly said that he could not name the persons who he feared, but the terms in which he explained his particular fear and its inherent nature allowed that inference.
Moreover, in my opinion, the possibility that this inference might be drawn from his evidence and the other material presented to the Tribunal should not have appeared surprising. The description by the applicant of his general activities in the military police, and the distant period in the past when they had occurred, gave rise, in the absence of any identification by the applicant of particular persons or particular incidents, to a clearly open inference that the applicant’s involvement was such that he probably could not now identify any particular persons that he feared. I therefore consider that the evidence presented by the applicant supported the conclusion drawn by the Tribunal at paragraph 3, and that its reasoning was unsurprising.
These conclusions answer both of the particulars of breaches of ss.424A and 425 which are argued under Ground 3.
There was no breach of s.424A(1) revealed in the finding made by the Tribunal, because its conclusion drew upon information given by the applicant to it at the hearing and in his subsequent written submission. Any obligations to invite written comments specifically on the possibility of an inference being drawn that he could not name or identify persons was therefore excluded by s.424A(3)(b). To the extent that the applicant’s complaint concerns the Tribunal’s process of reasoning in relation to his evidence, this cannot reveal any breach of s.424A(1) (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18]).
In relation to the argument based on s.425 and SZBEL, I do not consider that the situation falls within the High Court’s opinion that s.425 encompasses an obligation on the Tribunal to give an applicant an opportunity to give evidence and make submissions on issues arising in the review before the Tribunal which are not apparent. The present case has no direct parallel with SZBEL, since the Tribunal’s finding which is complained of did not concern an issue of credibility which appeared uncontentious in the delegate’s decision. In the present case, the applicant first presented his full claims to the Tribunal, and in particular his claim to fear reprisal from individuals in whose arrest he had been involved more than 20 years previously. In my opinion, it should have been apparent to him and his advisers when doing so, that the Tribunal might draw inferences from the absence of any identification of particular persons who were feared, or of incidents or circumstances which suggested that there were particular persons who had an interest in pursuing him after 20 years (compare Bennett J in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [21] and SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14]).
In my opinion, the obligations on the Tribunal under s.425 to warn an applicant as to the issues in the review did not, in the present case, require it to alert the applicant to the possibility that it might draw an inference from his evidence that he could not name or identify the persons whom he claimed to fear. I am therefore not persuaded that there was jurisdictional error of either of the categories identified in Ground 3, nor that the arguments presented in support of this ground have identified any other jurisdictional error.
For the above reasons, none of the grounds argued by the applicant have been made out, and I must therefore dismiss the application.

I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 4 February 2008