SZNLX v Minister for Immigration - [2009] FMCA 852

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNLX v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 852

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to apply the correct test of a well-founded fear of persecution.

Migration Act 1958 (Cth), ss.91R, 424A

Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Minister for Immigration & Citizenship v SZNAV [2009] FCAFC 109
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27
SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 150 FCR 448
SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630

Applicant:

SZNLX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 884 of 2009

Judgment of:

Barnes FM

Hearing date:

17 August 2009

Delivered at:

Sydney

Delivered on:

9 September 2009

REPRESENTATION

Solicitor for the Applicant:

Michael Jones

Counsel for the Respondents:

Ms S Sirtes

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 884 of 2009

SZNLX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal signed on 23 October 2007 and handed down on 1 November 2007 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of Lebanon, arrived in Australia in February 2007 and applied for a protection visa. The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. Following the hearing the Tribunal wrote to the applicant under s.424A of the Migration Act1958 (Cth) by letter dated 11 September 2007, putting certain matters to him for comment. The applicant’s adviser responded on 26 September 2007. The Tribunal sent a further letter to the applicant under s.424A of the Migration Act on 5 October 2007 to which the applicant’s adviser responded on 19 October 2007. In addition, the applicant’s adviser also provided the Tribunal with a letter of support purporting to be from the applicant’s father.

Tribunal decision

In its reasons for decision the Tribunal set out the applicant’s claims as made in his protection visa application and at the hearing. It also set out the invitations to comment and the responses.
The Tribunal accepted that the applicant was a citizen of Lebanon. It summarised his claim as a claim to fear that as a supporter of Hariri and an anti-Syrian activist, he would be persecuted by pro-Syrian elements, including Fatah Islam, because of his membership of a particular social group consisting of supporters or organisers of Hariri/opponents of pro-Syrian elements and also on the basis of his political views supporting Hariri and opposing pro-Syrian elements.
The applicant claimed he would not be protected by the authorities given the extent of Syrian infiltration, that the Lebanese media and intelligence were assisting the Syrians and that the authorities had a good relationship with Syrian intelligence and had assassinated high profile Lebanese opposition figures.
The Tribunal accepted that supporters of Hariri in Lebanon constituted a particular social group to which the applicant belonged and that he had engaged in the activities he claimed to have engaged in, such as distributing pamphlets, organising rallies. The Tribunal also accepted that the applicant’s political views constituted political opinion and that he held those views and that on this basis there was a nexus between each of the claimed bases for a fear of persecution (as an active supporter of Hariri and as a person who held an anti-Syrian political opinion) and the Refugees Convention.
The Tribunal then considered whether it was satisfied that the applicant’s fear of persecution was well founded, noting that his claimed fear was based on past events and the current situation in Lebanon. The Tribunal referred to the applicant’s claim that followers of Hezbollah were present at some of the rallies he attended or were conducting a rally of their own nearby, that Fatah Islam was suspected of perpetrating violence in his father’s village after the applicant left for Australia and to the fact that at the hearing the applicant had referred to a number of pro-Syrian Lebanese entities and various pro-Syrian elements within the Lebanese authorities. The characteristic common to all of these putative persecutors was said to be that they were antagonistic to Harirists. The Tribunal considered whether the applicant had a well-founded fear of persecution by any or several of the groups he had identified. However for reasons given, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution by elements within Lebanese society antagonistic to Harirists.
The Tribunal addressed apparent inconsistencies in some of the applicant’s evidence in relation to past persecution. The Tribunal considered the applicant’s response to this issue in the s.424A letter and accepted that his assertions in his protection visa application that “pro Syrian elements sought to persuade him during the demonstrations and by visiting him at home” (in contrast to his oral evidence that the Syrians warned him before demonstrations and used the mayor and his father to convey warnings to him at home), “may have been due to imprecise language in the application”. The Tribunal drew no adverse inference in relation to the applicant’s credibility from the apparent inconsistency between the statement lodged in support of the application and his oral evidence at the hearing. The Tribunal accepted “on balance that pro Syrian elements sought to persuade the applicant and that he was asked before and possibly during demonstrations to cease participating in anti-Syrian activism and that pro-Syrian agents visited his father at home and the mayor and asked them to convey similar injunctions to him”.
However, while the Tribunal accepted that “these overtures may have been unsettling and may have made the applicant disinclined to return to Lebanon”, it was not satisfied that any or all of the incidents of harassment referred to by the applicant gave rise to a well-founded fear of persecution. It had regard to the fact that while the applicant asserted that “he was fearful of being killed or kidnapped”, he had “continued to participate in demonstrations and anti-Syrian activism without repercussions”. Even accepting that “two specific ‘warnings’” were conveyed to the applicant, the Tribunal found no basis for the applicant’s “claimed fear that non-compliance with the warnings would or will result in him being kidnapped, detained, murdered or suffering any other form of persecution”. The Tribunal observed that when the applicant was asked at the hearing to detail the threat, if any, that accompanied the final warning, he was “vague, stating that everyone knew what would happen if they stood against the Syrians, namely, they would either be killed or imprisoned in a Syrian jail” and that “the mayor did not have to spell it out to him”.
The Tribunal found that “the applicant’s apprehension of being kidnapped, detained, murdered or suffering any other form of persecution for failing to comply with the warnings” appeared to be “speculative at best given the absence of any indication by the persons who conveyed the warnings that that was what would happen if he didn’t comply with the warnings.”
The Tribunal did “not accept that the warnings themselves constituted serious harm or gave rise to a well founded fear of serious harm.” It considered that “had the persons who conveyed the warnings intended to instil fear of kidnapped, detained, murdered or suffering (sic) any other form of persecution they would have indicated that rather than as claimed leaving it implicit in the request to cease political activity”. The Tribunal did “not accept that the warnings or overtures were so menacing that they induced the applicant to move around the country to escape detention”. Nor did it accept that he did so.
The Tribunal next addressed the applicant’s claimed belief that he was on a “pro-Syrians’ wanted list”. However, it found that there was no basis for this belief other than the applicant’s speculation that the list existed and that he was on it. The Tribunal acknowledged that “it should be cautious about rejecting evidence solely because it is not independently corroborated”, as that “may place an impermissible burden of proof on the applicant”, but continued:
However, even assuming that his political opponents maintain a list and the applicant’s name is on it, in light of the lack of evidence of persecution of the applicant in the past and country information about the current situation in Lebanon (discussed below), the Tribunal does not accept that the fact that his name is on such a list would entail the applicant being targeted for persecution. Nor does the Tribunal accept that having his name on such a list would give rise to a well founded fear of persecution.
The Tribunal referred to s.91R(1) of the Migration Act, which requires that persecution involve “serious harm” to the applicant and “systematic and discriminatory conduct”, and the meaning of serious harm as expanded on in s.91R(2) of the Act. It accepted that if the applicant returned to Lebanon and resumed his expression of political opinion and activism against pro-Syrian elements of Lebanese politics, “he may be exposed to approaches, perhaps strongly worded, from his political opponents from time to time”. However it was not satisfied that such conduct, if it occurred at all, involved serious harm within the meaning of the Act. Although the Tribunal accepted that the applicant may be uneasy about further overtures from pro-Syrians, it was not persuaded that he had well-founded fear of persecution, insofar as it was claimed to be based on past events.
In addition, the Tribunal found that country information did “not support the applicant’s claims to have a well founded fear of persecution based on his membership of the Hariri movement and/ (sic) his political opinion”. The Tribunal referred to country information in relation to targeted assassinations of anti-Syrian law-makers, but found that the campaign of violence continued to be “targeted at high profile law-makers” and that there was no evidence to suggest that the perpetrators were interested in targeting individuals with anti-Syrian political beliefs, activists or organisers of anti-Syrian rallies and other anti-Syrian activities.
The Tribunal found that as the applicant did not have a high profile, it did not accept there was a real chance he would “face persecution from Syrian intelligence, Hezbollah or any other pro-Syrian agents by reason of his political views or membership of a Hariri organisation now or in the reasonably foreseeable future”. The Tribunal added that it had “not been able to find any evidence to support the applicant’s claim that actors within Lebanese media, intelligence, government, military or police actively co-operate with Syrians in rounding up Lebanese citizens who support Hariri or that actors within Lebanese media, intelligence, government, military or police maintain a good relationship with Syrian intelligence.”
While the Tribunal accepted that “people living in Lebanon face some risk of harm either as a result of sectarian violence or war”, it considered that this was “a generalised, undifferentiated risk rather than a risk of serious harm faced by the applicant by virtue of a Convention reason”. Thus, while the applicant may have a well-founded fear, the Tribunal found that this was “a fear of harm being sustained during civil unrest or war” and that “the risk of that harm is faced by all irrespective of their race, religion, nationality, political opinion or social group”.
The Tribunal was “not satisfied that the applicant has a real chance of being harmed in sectarian violence or war in the reasonably foreseeable future on the grounds that he is a pro-Hariri activist” or on the grounds that he held a political opinion (pro-Hariri, anti-Syrian views), or because he was a member of a particular social group consisting of pro-Hariri activists.
The Tribunal also considered whether the evidence in support of each of the claimed bases of persecution cumulatively gave rise to well-founded fear of persecution on the basis of the applicant being a pro-Hariri activist and a member of a pro-Hariri organisation, but in light of the lack of past events and the country information the Tribunal was not satisfied that these matters, either individually or in combination, grounded a well-founded fear of persecution for a Convention reason. The Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.

This application

The applicant sought review by application filed in this Court on 16 April 2009. There is one ground in that application. I note at the outset that as a model litigant, counsel for the Minister raised with the Court the issue of the possible application of the principles considered by Raphael FM in SZNAV & Ors v Minister for Immigration and Citizenship & Anor [2009] FMCA 693 in relation to the letter of 9 July 2007 sent to the applicant by the Tribunal acknowledging receipt of his application. However Mr Jones for the applicant told the Court that the applicant did not take any issue with the letter of 9 July 2007 (and now see Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109).
The only ground relied upon is that the Tribunal decision was affected by jurisdictional error, in that it failed to apply the correct test of a well-founded fear of persecution. The particulars to this ground are that “the Tribunal failed (sic) believed the Applicant’s claims but held that his fear of persecution was not well-founded. In doing so it did not ask itself whether the possibility of the feared persecution occurring was only remote, insubstantial or far-fetched.” This was elaborated on in written and oral submissions.
The applicant pointed to the fact that it was well-established and accepted by the Tribunal in its summary of the applicable law at the start of its decision that, as discussed in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, a fear of persecution will be well-founded where there is a “real chance” that the persecution will occur and that a real chance is one which “is not remote or insubstantial or a far-fetched possibility”.
The Tribunal also referred to the fact that a “fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation” and acknowledged that a “person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent”, consistent with Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 572-573 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. In that case, in elaborating on a concern about the treatment of a particular word or phrase as synonymous with a Convention term, their Honours referred to a statement by the judge at first instance in Guo suggesting that the Tribunal had erred because it had shunned speculation. Their Honours pointed out at 572 – 573:
Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term "real chance" not as epexegetic of "well-founded", but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.
The solicitor for the applicant submitted that these cases supported the contention that the Tribunal had fallen into jurisdictional error by failing to apply the correct test. It was suggested that the Tribunal made findings favourable to the credibility of the applicant, found him to be a credible witness and resolved certain apparent inconsistencies in his favour, in particular, accepting that he had been asked to cease participating in anti-Syrian activism and that pro-Syrian agents visited his father and the mayor and asked them to convey similar injunctions to him.
It was submitted that the Tribunal’s finding that the applicant’s fears were not well-founded was based on reports that violence in Lebanon was targeted at high-profile law-makers and that the applicant did not have a high profile, but claimed that in coming to this conclusion the Tribunal had “ignored its own finding that the Applicant had been personally warned to cease his political activities, and that similar warnings had been passed on to him through his father and the local mayor”. It was contended that the “Tribunal did not ask itself whether this accepted fact lifted the Applicant’s profile to the point where actual violence against him became more than a remote, insubstantial or far-fetched possibility”.
In addition to this general contention, the solicitor for the applicant raised a number of specific issues. First, it was submitted that the Tribunal failed to deal with a submission made on the applicant’s behalf in response to information put to him in the letter under s.424A of the Migration Act of 5 October 2007.
In the s.424A letter, the Tribunal had referred to country information put to the applicant in the earlier s.424A letter that indicated that high profile and anti-Syrian politicians had been targeted for their political involvement, but noted that there was no evidence to support the proposition that ordinary supporters or organisers of the Hariri Future Party would be exposed to serious harm on the basis of their pro-Hariri Future Party beliefs or actions, or membership of a pro-Hariri organisation.
The Tribunal provided further particulars of country information, incorporating evidence as to more recent incidents of violence in relation to assassination of members of parliament in Lebanon. It suggested that this chronology of recent violence tended “to suggest that pro-Syrian forces are targeting members of parliament in order to reduce or eliminate the majority held by anti-Syrian Lawmakers and that ordinary supporters and or (sic) organisers who are not members of parliament are not at risk of serious harm at the hands of pro-Syrian forces”. It was said that this may indicate that the applicant was “not at risk of serious harm at the hands of pro-Syrian forces” and that he did “not have a well founded fear of persecution for a Convention reason.”

The applicant’s adviser’s response was first that the evidence of “assassination of Lebanese members of parliament is evidence of continuing Syrian political interference in Lebanon” and secondly, that “Syrian targeting of opposition members is not limited to high profile politicians and journalists” and that there continued “to be a campaign of targeting a cross section of opposition members, including ordinary supporters.” In addition, (and this is the paragraph on which the applicant relies in these proceedings) his adviser challenged the reliability of evidence cited by the Tribunal as follows:
We submit that the killing of ordinary supporters often do not receive the media coverage that high profile members of parliament or journalists receive. We are instructed that the killing of ordinary supporters are often reported in the media as being murders or accidents, rather (sic) politically motivated killings. Syrian intelligence who carryout (sic) killings usually eliminate their target without leaving any evidence of political motivation. The murder of ordinary supporters do not receive the same level of scrutiny regarding the motive for their killings as do murdered politicians or journalists.
The applicant submitted that “[d]espite quoting this argument” in outlining the response to the s.424A letter, the Tribunal made no reference to it in the findings and reasons part of its decision and that “it failed to consider whether there was a real chance that the evidence it was relying on was inaccurate or based on a false assumption.”
When asked to explain the manner in which this contention gave rise to a jurisdictional error, the solicitor for the applicant acknowledged that the Tribunal was not obliged to make specific findings in relation to every item of evidence, but submitted that this material was more than evidence and included a submission as to how the Tribunal should interpret evidence before it. It was submitted that the Tribunal ignored this submission in referring only to the facts that there was a campaign of violence targeted at high profile law-makers and that there was no evidence to suggest that perpetrators were interested in targeting individuals with anti-Syrian political beliefs or activists or organisers of anti-Syrian rallies and other anti-Syrian activities and in finding that the applicant did not have a high profile and accordingly not accepting that there was a real chance he would face persecution from Syrian intelligence. It was submitted that it could be inferred that the Tribunal did not have regard to this particular part of the response to the s.424A letter.
Hence it was submitted that the Tribunal had failed to address this aspect of the applicant’s case and the adviser’s contention that the fact that certain incidents had not been reported did not mean that they had not occurred. The solicitor for the applicant suggested that some analogy could be seen with the approach taken in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, although it was acknowledged that the suggested jurisdictional error was not a failure to have regard to relevant considerations. In essence it was contended that the Tribunal could be said to have constructively failed to exercise jurisdiction on the basis that it failed to consider all arguments put by an applicant.
Next, it was contended that the Tribunal did not reject the claim that the applicant’s name was on a “wanted list” kept by pro-Syrian activists, but that it disregarded the issue without explanation, simply stating that it did not accept that the fact that the applicant’s name was on such list would entail him being targeted for persecution. It was acknowledged that if the Tribunal had made a positive finding that no such list existed or that the applicant’s name was not on any list that did exist, it would have exercised its jurisdiction. However it was submitted that by accepting the possibility that the facts were as claimed by the applicant but then failing to ask itself what would be the point of keeping such list, the Tribunal failed to consider whether the possibility that the applicant’s name was on the list would raise the likelihood of persecution to the minimum threshold of a real chance.
Finally, it was submitted that the Tribunal’s attitude to the possibility (which it accepted) “that on return to Lebanon the Applicant could be ‘exposed to approaches, perhaps strongly worded, from his political opponents’” also reflected a similar error, insofar as the Tribunal did “not ask itself how often the opponents might make such threats before backing them up with actions”.
I am not persuaded that jurisdictional error is established in the manner contended for by the applicant. First, the applicant contended generally that the Tribunal had failed to apply the correct test of a well-founded fear of persecution, on the basis that it had found him to be a credible witness and accepted that he had been personally warned to cease his political activities and that similar warnings had been passed on to him. The Tribunal was said to have erred in not asking itself whether this evidence lifted the applicant’s profile to the point where actual violence became more than a remote, insubstantial or far-fetched possibility.
However, as the first respondent submitted, this analysis in terms of the applicant’s credibility does not establish that the Tribunal failed to apply the correct test of a well-founded fear of persecution. It is the case that the Tribunal accepted certain aspects of the applicant’s claims in relation to past events, in particular that he was a supporter of Hariri in Lebanon and that he had engaged in claimed activities, including distributing pamphlets and organising rallies, that he held political views that constituted political opinion and also “on balance” that pro-Syrian elements had sought to “persuade” him, that he was asked before and possibly during demonstrations to cease participating in activism, and that pro-Syrian agents visited his father and the mayor. However the fact that the Tribunal accepted these claims is not such as to establish that it failed to apply the correct test when it subsequently came to consider whether the consequences of the events which it accepted had occurred were such as to give rise to a well-founded fear of persecution.
The Tribunal did not analyse the issue of well-founded fear of persecution in terms of whether the applicant had a subjective fear of persecution, but rather whether any fear that the applicant had was a well-founded fear of persecution. It was open to the Tribunal to accept, as it did, that the overtures and warnings to the applicant had occurred as claimed, but nonetheless not to be satisfied that any or all of the incidents of harassment referred to by the applicant gave rise to a well-founded fear of persecution. It did not ignore its previous findings. It accepted the factual premise but reached a different conclusion to that urged by the applicant about the effect of such warnings. As it stated, even accepting that two specific warnings were conveyed to the applicant, it found no basis for his claimed fear that non-compliance would or will result in him being kidnapped, detained, murdered or suffering any other form of serious harm constituting persecution.
In reaching this conclusion, the Tribunal had regard to the fact that at the hearing when asked to detail the threat, if any, that accompanied the final warning, the applicant was “vague” and “stated that everyone knew what would happen namely” that he would be “killed or imprisoned” and that “the mayor did not have to spell it out”. In those circumstances it was open to the Tribunal to find that the applicant’s apprehension of being persecuted for failing to comply with the warnings appeared to be “speculative at best given the absence of any indication by the persons who conveyed the warnings that that was what would happen if he didn’t comply with the warnings”. This reasoning did not involve the Tribunal engaging in impermissible speculation or failing to apply the correct test of a well-founded fear of persecution. Rather, it considered whether there was a substantial basis for the applicant’s fear or whether it was mere “speculation” (cf Guo at 572 – 573).
The Tribunal also found that the warnings which it accepted had occurred did not themselves constitute serious harm or give rise to a well-founded fear of serious harm, on the basis that had the persons who conveyed the warnings intended to instil a fear of such persecution they would have indicated that, rather than leaving it implicit in the request to cease political activity. It was on this basis that the Tribunal did “not accept that the warnings or overtures were so menacing that they induced the applicant to move around the country”. It has not been established that the Tribunal failed to apply the correct test of a well-founded fear of persecution in this respect.
Nor has it been established that the Tribunal fell into jurisdictional error in relation to the applicant’s adviser’s submission that low-profile persons with anti-Syrian beliefs were harmed, but that such harm was not the subject of media reports. This submission was made in response to a s.424A invitation. There is no suggestion that the Tribunal did not meet its obligations in that regard. As set out above, the Tribunal explained the context in which it put information to the applicant and its concern that the country information before it may tend to indicate that ordinary supporters and organisers were not at risk of serious harm at the hands of pro-Syrian forces.
The argument in response to the s.424A invitation did not have to be addressed specifically in the manner contended for in these proceedings. The Tribunal is not required to refer to every piece of evidence in its reasons (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] and SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 150 FCR 448 at [33]). It dealt with the relevant issue, which was the question of whether the applicant, as an ordinary supporter or organiser who was not a member of Parliament, was at risk of serious harm at the hands of pro-Syrian forces. It is well-established that the choice and interpretation of country information and the weight to be given to such information is a matter for the Tribunal alone (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] – [13]). Moreover the Tribunal considered whether there was evidence to suggest that perpetrators of the campaign of violence against anti-Syrian law-makers “are interested in targeting individuals with anti-Syrian political beliefs or activists or organisers of anti-Syrian rallies and other anti-Syrian activities” but found no such evidence. Nor was it able to find any evidence to support the applicant’s claim about co-operation of Lebanese authorities with Syrians as contended. The Tribunal did accept that people in Lebanon faced some risk of harm “as a result of sectarian violence or war”, but considered that this was not a risk of serious harm faced by the applicant by virtue of a Convention reason, but rather a “generalised, undifferentiated risk”.
Given its consideration of the integers of the applicant’s claim, it was not necessary for the Tribunal to deal expressly with every argument or submission put to it by the applicant in relation to the evidence (or lack of evidence) before the Tribunal. This is not a case in which the applicant put particular contrary country information to the Tribunal (see NARD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 27 at [13]). Rather, the applicant merely provided a further explanation for why he was unable to refer to country information in support of his claims. The failure to refer to the adviser’s argument in its findings and reasons, in circumstances where the Tribunal dealt with the elements of the applicant’s claims in that respect, is not such as to establish jurisdictional error.
The applicant also contended that the Tribunal “disregards” his claim that he was on a wanted list kept by pro-Syrian activists without any explanation. However it is apparent from the Tribunal’s reasons for decision that it was aware of and considered the applicant’s belief that he was on a pro-Syrians’ wanted list (a belief that he expressed in the original protection visa application), but that it found that on the material before it there was no basis for that belief, other than his speculation that the list existed and that he was on it.
The Tribunal acknowledged not only the absence of independent corroboration but also the caution to be exercised in rejecting evidence, and also considered this claim on the basis that the applicant’s political opponents did maintain such a list and the applicant’s name was on it. It did not disregard this issue. Rather, in light of the lack of evidence of persecution of the applicant in the past and the country information about the current situation in Lebanon (which, while it showed targeting of high profile law-makers, did not show any targeting of ordinary Lebanese citizens) it did not accept the fact that the inclusion of the applicant’s name on such a list (that is a list for which there was no independent evidence) would entail him being targeted for persecution or would give rise to a well-founded fear of persecution. No jurisdictional error has been established on this basis.
The final aspect of the applicant’s submissions was that while the Tribunal accepted that the applicant could “be exposed to approaches, perhaps strongly worded, from his political opponents”, it did not ask itself how often the opponents might make such threats before backing them up with action.
However the Tribunal dealt with the evidence before it as to what had occurred in the past, the nature and number of warnings, which it accepted had occurred in relation to the applicant, the content of such warnings and (in particular) the absence of any specific consequences. In that context, while the Tribunal accepted that the applicant may be exposed to approaches if he resumed his expression of political opinion and activism, it was not satisfied that such “approaches”, if they occurred at all, involved “serious harm within the meaning of the Act”. Implicit in the Tribunal findings is a rejection of any claim that the applicant had a well-founded fear of “serious harm” constituting persecution beyond the possibility that he may be exposed to approaches from his political opponents. It accepted that the applicant was “uneasy” about future “overtures from pro-Syrians”, but was not persuaded that he faced a well-founded fear of serious harm based on what had occurred in the past and country information. It was open to the Tribunal to find that there was no well-founded fear in that respect and that the feared approaches or any uneasiness that the applicant may feel were not such as to constitute a well-founded fear of persecution. The Tribunal then considered generally whether the applicant had a well-founded fear of persecution in light of country information. In that context it rejected the applicant’s claim to fear harm as an ordinary supporter or activist and found that, insofar as he faced some risk of harm from “sectarian violence or war”, that was not “a risk of serious harm faced” by him “by virtue of a Convention reason”. In that way the Tribunal properly applied the test of a well-founded fear of persecution.
As no jurisdictional error has been established on any basis contended for by the applicant, the application must be dismissed.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 9 September 2009