SZQSD v Minister for Immigration - [2012] FMCA 433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQSD v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 433

MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it made an incorrect factual finding – misapplied the relevant tests – ignored important information – made a finding which was unreasonable – was mistaken in its approach to the possibility of relocation and was biased.

Migration Act 1958, ss.430, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Applicant:

SZQSD

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2228 of 2011

Judgment of:

Cameron FM

Hearing date:

17 May 2012

Date of Last Submission:

17 May 2012

Delivered at:

Sydney

Delivered on:

31 May 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2228 of 2011

SZQSD

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Lebanon who arrived in Australia most recently on 14 October 2010. On 25 February 2011 he lodged an application for a protection visa with the Department of Immigration and Citizenship alleging that he feared persecution in Lebanon by reason of his conversion to Christianity from Islam. On 3 June 2011 his application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Background facts

The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision. Relevant factual allegations are summarised below.

Department

Enclosed with the applicant’s protection visa application was a statutory declaration in which he made the following claims:
a)he was born a Sunni Muslim but converted to evangelical Christianity on 20 December 2010. He attended a church in Punchbowl;
b)his family was not aware of his conversion. If they discovered this, he would be seriously harmed as they were strict adherents of Islam;
c)he wished to continue to pursue his Christianity without being threatened by his family or others who might be offended by his conversation. Strict Sunni Muslims did not accept apostates;
d)he would not be able to rely on the protection of the Lebanese authorities as they did not interfere in religion-based disputes;
e)as an evangelical Christian, he was required to proselytise. Such activity would attract adverse attention from hostile Muslims; and
f)Islamic fundamentalism was rife in Lebanon, particularly in the area in north Lebanon from which he claimed to come. The population of his home area was predominantly Sunni Muslim.
The applicant was interviewed by a ministerial delegate on 2 June 2011. On that occasion he provided, relevantly:
a)a number of photographs depicting him at various religious functions;
b)a copy of his baptismal certificate dated April 2011;
c)a statement from Al Obour Church dated 17 April 2011 stating that the applicant was a member of the church who attended Sunday worship and bible and discipleship study;
d)photographs of the applicant’s brother handling a gun and a sword; and
e)a copy of the applicant’s Lebanese registration card showing his religion as Muslim Sunnite.

Tribunal

The applicant appeared before the Tribunal on 15 August 2011 at which point he made the following additional claims:
a)he was working in Australia to support himself. His parents also used to send him money occasionally but they stopped when they learned that he had converted to Christianity;
b)he told his parents about his conversion on 10 July 2011. His father told him that he would not send him any more money unless he returned to Islam. His father also threatened him with one of their relatives who was a general in the Internal Security Forces. His family could ask the general to find him no matter where he was or use him to prevent the government from protecting him;
c)as he was baptised overseas and his identification card stated that he was Sunni Muslim, the church in Lebanon might not protect him or believe his circumstances. However, even were he to be believed, the church might not wish to get involved in his situation if they knew that a general was involved;
d)his mother told him that his father would rather kill him than suffer the shame;
e)he went to an Islamic primary school where he learned the Koran and the basics of the Islamic religion. His parents then sent him to an Orthodox Christian school because its standard of education was better and its fees were cheaper. He did not have to attend church or religious classes at that school;
f)his family was practising Sharia in carrying weapons. His father had two guns in the house;
g)he also feared harm from the Muslim community, especially those who practised Sharia. According to Islam, people who commit apostasy should be killed or seriously punished; and
h)if he returned to Lebanon he would have to evangelise in many areas, including Muslim areas.
The Tribunal took oral evidence from the applicant’s minister and another witness, both of whom attested to the applicant’s conversion and to his involvement in Christian activities in Australia.
After the hearing the applicant provided further submissions and documents to the Tribunal.

The Tribunal’s decision and reasons

Following a discussion of the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal accepted that the applicant had converted to Christianity, had engaged in various Christian activities in Australia and might wish to engage in similar activities, including proselytising, if he returned to Lebanon. The Tribunal also accepted that the applicant’s family, as devout Muslims, might have considered his conversion shameful. However, the Tribunal did not accept that the applicant would be seriously harmed or killed by his family on this account, whether or not with the assistance of the general, noting that:
i)the fact that the applicant’s parents had sent him to a Christian school, for whatever reasons, was contrary to the applicant’s claim that his family held such stringent views that his act of conversion would cause serious harm or even death;
ii)the Tribunal did not accept the applicant’s suggestion that his father agreed to send him to a Christian school because he had already learned the basics of Islam, noting that the applicant was fifteen when he first attended an Orthodox school which was not an age when one’s opinions were so established as to be incapable of change or influence;
iii)there was no evidence to indicate that the applicant’s family was ignorant, backward or intolerant or that they had been violent in the past. The mere fact that his brother was pictured handling a weapon or that weapons were held in his parents’ house did not suggest that the applicant’s family were willing to use those weapons against another person, including a family member; and
iv)the Tribunal did not accept that devotion to Islam required a strict Muslim to kill or seriously harm a Christian convert;
b)the Tribunal accepted that the applicant’s family might feel sufficiently strongly about his conversion that they would withdraw their financial support. However, the Tribunal did not accept that this constituted serious harm because the applicant had been able to work and access financial support while in Australia. Further, while there was a real chance that the applicant’s family might ostracise him, the Tribunal did not accept that this behaviour constituted serious harm;
c)according to country information, there were no reports of violence against converts in Lebanon or recent reports of attacks on individual Christians by extremist Muslims either in the north or south of Lebanon. Further, while sectarian tensions arose from time to time, places of worship continued to exist side by side. For these reasons, the Tribunal was not satisfied that there was a real chance that the applicant would be targeted by extremist Muslims or others because of his conversion to Christianity;
d)in the Tribunal’s view, a fair reading of the country information relating to the matter of apostasy indicated that there was a range of views in the Muslim community world-wide about its seriousness and its appropriate punishment. The Tribunal noted that there was no record of apostasy in Lebanon being punished by death under Sharia law and there appeared to be a consensus that Lebanon was one of the more liberal countries in its Islamic tradition. The Tribunal noted in any event that the execution of apostates (by any sect) would not be permitted by a Lebanese criminal court. Consequently, on the evidence before it, the Tribunal was not satisfied that there was a real chance that the applicant would be killed or seriously harmed because he had committed apostasy;
e)the Tribunal did not accept that the applicant would be seriously harmed in Lebanon because of his Christian activities or that he would not be able to practise his religion there. In this regard, the Tribunal noted that:
i)Christians in Lebanon were a substantial minority and the government did not abuse religious freedom there;
ii)while country information suggested that proselytising and attempts at conversion were not welcomed by the population and the community, it also indicated that the last reported incident of any harm was in 2002/2003. There was no information indicating systematic and discriminatory conduct resulting in serious harm against those who engaged in proselytising or as a result of their beliefs or practices; and
iii)it was open to the applicant to engage in religious activities and attend Christian services in an area other than his home town. The Tribunal noted that the applicant had been able to establish himself in Australia and there was nothing to suggest that he would not be able to do the same in Lebanon away from his family. The Tribunal was also of the view that the applicant had ample evidence of his conversion and commitment to his new faith to ensure that he would be perceived as a genuine convert in any Christian community in Lebanon, despite his Muslim background and conversion overseas.

Proceedings in this Court

The grounds of the application commencing these proceedings were pleaded as follows:
1.The RRT was asserting a proposition of law as to which it was in serious error to deny my well founded fear of persecution, subjective fear.
2.The Tribunal ignored important information and made unreasonable finding.
At the hearing of his application the applicant appeared also to allege that the Tribunal had been biased.

Errors of law and fact

The first ground of the application raises two issues, whether the Tribunal misapplied the relevant tests and whether it reached a correct conclusion on the applicant’s claim to fear persecution in Lebanon. It is convenient to deal with the second issue first. An assertion that the Tribunal was wrong to “deny my well founded fear of persecution, subjective fear” invites the Court to review the Tribunal’s factual conclusion on that point. The Court is not empowered to do this. Even if it would itself reach a conclusion on the facts different from that arrived at by the Tribunal, its role is limited to determining whether the Tribunal’s decision or its conduct of the review reflected legal, not factual, errors. Because the second element of the first allegation made in the application raises an issue of the Tribunal’s fact-finding, it provides no basis upon which the Court can set the Tribunal’s decision aside.
The first aspect of the first allegation implies that the Tribunal’s conclusion on the applicant’s claim to have a subjective fear of persecution was arrived at through the misapplication of the relevant tests. In paras.5-17 of its decision the Tribunal set out the law relevant to the review in a way which does not demonstrate error. Further, the applicant did not identify in what way he might have been alleging that the relevant tests, although correctly articulated in paras.5-17 of the Tribunal’s decision, were nevertheless misapplied in its reasoning. As the summary of the Tribunal’s reasons set out above at [10] indicates, no erroneous application by the Tribunal of those tests is apparent. As a consequence, no relevant error on the part of the Tribunal has been demonstrated with the result that no basis to set the Tribunal’s decision aside by reason of a misapplication of the relevant tests has been demonstrated.

Unreasonableness and failure to consider information

At the hearing of this application the application’s second allegation was the subject of detailed submissions. These are summarised below although not all of them were directly linked to the pleaded allegation.

Possibility that his immediate family were religious extremists

The applicant referred to the fact that the Tribunal had accepted that his family were devout Muslims but had also concluded that, because he and his brothers had been sent to an Eastern Orthodox school and had been sent to predominately Christian countries to pursue further education, they were not extremists. He submitted that this reasoning was illogical because such conduct was not necessarily inconsistent with extremist beliefs. He argued that the Tribunal’s reasoning did not withstand scrutiny when one considered that there were extremist Muslims living in Christian countries.
This submission was directed to paras.66 and 67 of the Tribunal’s reasons but dealt with only part of what was said there. The presently relevant conclusion expressed by the Tribunal in that part of its reasons, that there was no evidence before it that the applicant’s family members had been intolerant or violent in the past, was based on more evidence than just the education of the applicant and his siblings. The Tribunal also referred to the fact that the applicant’s parents were educated and that there was no evidence that his family was “ignorant, backward, or intolerant” or that members of his family had been intolerant or violent in the past.
In such circumstances the conclusion which the Tribunal reached, on which it relied to further conclude that the applicant did not face a real chance that his conversion to Christianity would cause his family to inflict serious harm on him or to kill him, was open on the evidence. As such, it was not affected by jurisdictional error.

Possibility that he would be harmed by wider family or the community

The applicant submitted that notwithstanding its statement at para.69 of its decision that
Despite the country information indicating that converts may be subjected to persecution from family and the community, the country information indicates that there are no reports of violence against converts
the Tribunal had not considered the risks he faced at the hands of his extended family or “the community”. In this regard, he submitted that although the Tribunal made a finding that his immediate family did not pose him a relevant risk, it erroneously limited its consideration of his “family” to his parents and siblings and ignored his wider family of uncles, aunts, cousins and grandparents, whom he said he discussed with the Tribunal. He said that the Tribunal had also failed to consider “the community”.
This submission misunderstands the relevant part of the Tribunal’s decision. In this connection it must be kept in mind that, as recorded at para.33 of the Tribunal’s reasons, the applicant’s claim was limited to a fear of physical harm at the hands of his family (other than his mother), his extended family and the broader community in Lebanon. The Tribunal said at para.68 of its reasons that it did not accept that there was a real chance that the applicant’s immediate family would do him serious harm because they were devout Muslims or because he was an apostate. That then left it to consider others who might possibly harm the applicant because of his conversion. At para.69 of its reasons the Tribunal did this in a general and inclusive way which comprehended both the applicant’s extended family and the broader Lebanese community. Relying on that consideration the Tribunal concluded that it was not satisfied that there was a real chance that the applicant would be targeted by extremist Muslims or others because of his conversion to Christianity.
Contrary to the applicant’s submission, the Tribunal did consider the claim which he had made.

Misunderstanding of claim

The applicant referred to the Tribunal’s statement at para.71 of its decision that the Lebanese government did not abuse religious freedoms and submitted that his claim was not concerned with the Lebanese state or with Christians but with extremist Muslims. The applicant did not submit that this statement was the basis of any finding which was determinative of the review and it cannot be seen to have been so except to the extent that Lebanese government action might reflect extremist Muslim views, in which case it was addressed by the Tribunal’s immediately subsequent statement that there was no independent evidence that Muslims in the applicant’s community, his area or elsewhere would do him harm because of his beliefs. As a result, the statement in question does not disclose reviewable error on the Tribunal’s part.

Tribunal incorrect to say that there was no independent evidence that Muslims in Lebanon would do him harm because of his beliefs

As recorded above at [22], at para.71 of its decision the Tribunal said:
There is no independent evidence that Muslims in his community or in his area, or elsewhere, would do him harm because of his beliefs.
The applicant challenged this statement. The applicant submitted that although such matters were not reported in the media, he had given the Tribunal evidence of them. In this regard he referred to his post-hearing submission dated 18 August 2011 and, in particular, to a Tribunal decision apparently annexed to that letter, decision 0900015 [2009] RRTA 316 of 16 April 2009 (“2009 RRT decision”). The applicant stressed that the Tribunal member who presided at that review was the same member who presided at his review. The letter also referred to decision 071227431 [2007] RRTA 235 of 28 August 2007 (“2007 RRT decision”) but particular submissions were not made in relation to it. Only the 2009 RRT decision was reproduced in the Court Book.

If the Tribunal fails to consider evidence which might have a bearing on the outcome of the review, in that the evidence is not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30-31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; Singh v Minister for Immigration & Multicultural Affairs (2001) 183 ALR 531 at 542 [49]; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]. Consequently, the presently relevant question is whether the applicant did supply independent information to the Tribunal which it failed to consider and which demonstrated that relevant harm had been suffered in his area.
The applicant submitted that his case was very similar to the one considered in the 2009 RRT decision. In this regard he pointed out that both he and the 2009 claimant came from north Lebanon and he also referred to the description of the latter set out in paras.63, 64 and 66 of the 2009 RRT decision:
The applicant travelled to Australia on a valid Lebanese passport and claims to be a national of Lebanon. The Tribunal accepts that the applicant is a national of Lebanon and has assessed his claims against Lebanon as his country of nationality.
The applicant essentially claims that he fears persecution in Lebanon because of his conversion to Christianity, his involvement in proselytising activities, including his connection with various evangelical groups …
… the Tribunal accepts the applicant’s claim that he was born in a Muslim family and that he has converted to Christianity. … The Tribunal accepts that the applicant had engaged in proselytising … The Tribunal accepts that the applicant has a genuine interest in Christianity and that he will continue to present himself to others as a Christian. Further, the Tribunal is satisfied that the applicant will be known to others as being a Christian who has converted from Islam. The Tribunal accepts that the applicant may wish to engage in proselytising activities in the future. …
The applicant also referred to para.68 of the 2009 RRT decision where it was said:
The Tribunal is of the view that the applicant’s situation may be exacerbated by the fact that he is of a Bedouin ethnicity and has strong familial associations. The Tribunal accepts that the applicant may by physically harmed by members of his extended family or his clan, as well as other members of the society, because of his religious beliefs and practices and his disassociation with the religious beliefs and practices of his tribe. The Tribunal accepts, having regard to the country information cited above, that the authorities are either unwilling or unable to protect the applicant. The Tribunal finds that the persecution that the applicant fears involves ‘serious harm’ within the meaning of s 91R(1)(b) of the Act and that the applicant’s religion is an essential and significant reason for the persecution which he fears. The Tribunal also finds that the persecution which the applicant fears involves systematic and discriminatory conduct in that it is deliberate or intentional and involves selective harassment for a Convention reason (religion). The Tribunal is satisfied that such persecution exists throughout Lebanon and there is no evidence before the Tribunal that the applicant may be able to avoid persecution by relocating within Lebanon. Given these findings, it is unnecessary for the Tribunal to consider other claims put forward by the applicant.
In its 2009 decision the Tribunal summarised in the following terms information relevant to its satisfaction that the 2009 claimant had a well-founded fear of persecution for reasons of his religion:
The Tribunal has had regard to independent country information, referred to above, concerning the treatment of converts, as well as those who engage in proselytising. While the information indicates that there are no recent reports of harm against the converts, it also suggests that conversion is treated as disloyalty and those who convert may be banished from their families. It further indicates that proselytising is ‘frowned upon’ and that those who engage in it may suffer harm.
Relevantly, that statement was a summary of country information which the 2009 Tribunal had paraphrased in the following terms at para.55 of its reasons:
Little recent information was found on the situation for Muslim converts to Christianity and those involved in proselytising to Muslims in Lebanon. The available information indicates that the last time the issue was reported on in detail was in 2002 and 2003, when evangelical Christians were targeted in two separate incidents in Sidon and Tripoli. A missionary and a Muslim convert to Christianity were killed in these incidents …
and at para.58, quoting from a 2002 Department of Foreign Affairs and Trade (“DFAT”) report
… we would not discard the strong likelihood that, against the norms of Lebanon’s highly-confessionalised society, a convert would be subjected to personal persecution from family members or other members of the sectarian community to which he/she formerly belonged.
The applicant submitted that the contents of the 2009 RRT decision were the independent evidence that Muslims in his community, his area or elsewhere would do him harm because of his beliefs which in para.71 of the decision under review the Tribunal said did not exist. He submitted that the Tribunal member who determined his review had forgotten what she knew in 2009, namely that those who engaged in Christian proselytising in Lebanon might suffer harm. He submitted that if the 2009 applicant was at risk of harm, then he would be too.
The passages quoted above at [27] and [28] refer expressly to independent country information recording risks faced in Lebanon by Christian converts from Islam and also appear in the Tribunal decision presently under review. This applicant’s reliance on the 2009 RRT decision and the Tribunal’s quotation of the same information in its own summary of the evidence before it might suggest that the present Tribunal failed to have regard to that information when reaching its conclusion that there was no independent evidence that Muslims in the applicant’s community, his area or elsewhere, would do him harm because of his beliefs. However, the statement at para.71 expressing that conclusion, quoted above at [23], should not be considered in isolation but should be read in context. Significantly, it was immediately followed by the following sentences:
While the country cited above information suggests that proselytising and attempts at conversion are not welcomed by the population and the community, it also indicates that the last reported incident of any harm was in 2002 – 2003. There was no information indicating systematic and discriminatory conduct resulting in serious harm against those who engage in proselytising or as a result of their beliefs of [sic] practices. The DFAT report cited above expressly states that there were no reported instances of harm against those who engage in proselytising.
In light of these latter comments it is apparent that the Tribunal’s statement, that there was no evidence that Muslims would harm the applicant because of his beliefs, was a reference to the contemporary situation in Lebanon and one which implicitly discarded as irrelevant events occurring less recently. At this point it might also be noted that although the Tribunal referred to two DFAT reports in its decision, neither was quoted in the summary of evidence as saying that there were no reported instances of harm against those who engaged in proselytising. However, it has not been suggested that this statement was inaccurate and, although a breach of s.430 of the Act, the failure to include this information in the summary of evidence does not amount to jurisdictional error.
It should also be noted that the Tribunal did not refer anywhere in its reasons to the 2007 RRT decision which concerned an elderly Christian woman’s well-founded fear of religious persecution in Lebanon. That decision had no particular relevance to the applicant’s claims as it concerned a very specific fact situation quite dissimilar from the present applicant’s. Moreover, to the extent that the country information cited in the 2007 RRT decision was not also cited in the decision presently under review, it was not relevant to a claim to fear harm because of a conversion from Islam to Christianity such as the applicant’s. Consequently, although the Tribunal is not obliged to refer to information on which it does not rely when making material findings of fact, if in this case that silence represented a failure to consider the 2007 RRT decision, such a failure would not amount to jurisdictional error because the information in question had no significance to the applicant’s review and could not have affected its outcome.
In the circumstances, I do not conclude that the Tribunal failed to consider information which might have suggested that the applicant faced a chance of religion-based persecution were he to return to Lebanon. I conclude that it weighed the information which was before it and placed decisive weight on the fact that there was no recent country information which supported the applicant’s claimed fear of religious extremists. In this regard, it was a matter for the Tribunal to decide which evidence to rely on and the weight to give to particular evidence. For this reason, the applicant’s additional submission that the Tribunal relied on country information which was not reliable or accurate regarding events in Lebanon does not support a finding of jurisdictional error.
For the above reasons, this allegation by the applicant is not made out.

Relocation

The applicant submitted that the Tribunal’s conclusion that he would be able to relocate to a Christian area in Lebanon did not address the claim which he had made. He pointed to the Tribunal’s statement that because he had been able to establish himself in Australia he would be able to relocate within Lebanon and submitted that this had nothing to do with the harm he claimed to fear. He said that he had been arguing one thing but the Tribunal based its decision on another.
Related to this submission was the applicant’s argument that it would be hard for him to live in a Christian area. In this regard he pointed to the Tribunal’s statement at para.69 of its reasons that places of worship existed side by side in Lebanon and he asked rhetorically how, if there were mosques in a Christian area, he could solve his problems by moving to a Christian area as he would not be able to escape the Muslims who would attend those mosques. The applicant emphasised his point by asserting that the Tribunal had contradicted itself by concluding that he could escape harm from Muslims by moving to Christian areas which were nevertheless visited by Muslims.
The Minister’s submissions on this argument focussed on the applicant’s ability to establish himself and get on with his life, notwithstanding that he had been ostracised by his family, and the fact that the Convention is not concerned with how easy it is to live in a particular location but whether a claimant has a well-founded fear of Convention-related persecution there. However, as I understood it, the applicant’s argument was directed to his assertion that he would not be safe in a predominantly Christian area because radical Muslims might still come into such a place. That is to say, because the difficulty he would face living in such areas related to his claimed fear of persecution, questions of his subsistence were irrelevant to the claim he was making.
However, the Tribunal concluded that the applicant did not, in fact, have a well-founded fear of persecution in Lebanon and thus its discussion of relocation was concerned with the possibility that the applicant might wish to avoid unpleasantness with his family by living somewhere distant from them, not that he could escape persecution by relocating. As a result, the Tribunal’s comments on this topic were of no practical significance to the outcome of the review.
However, should I be wrong in that conclusion, when the Tribunal raised the possibility of relocation with the applicant during the Tribunal’s hearing, the objections which he raised were his concerns that the church would not accept him because of his Muslim background and the religion cited on his identification card, whether his baptism certificate would be accepted and whether the church would want to engage with him if they knew that a general was involved in his situation. The Tribunal addressed each of these concerns at para.73 of its reasons and did not accept them. No error is disclosed by this approach: SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at 438-439 [123]-[124].
For these reasons, this allegation is not made out.

Bias

In his submissions at the hearing of this application, the applicant impliedly alleged that the Tribunal was biased because, he said, it seized on aspects of his evidence which it could use to challenge his claims, such as the details of his and his siblings’ education. He said that when considering his relationship with his family the Tribunal picked on little things, such as the fact that he had had telephone contact with his family. He also said that in his case the Tribunal relied on the same country information it had relied on in its 2009 RRT decision but had reached a different conclusion.
The applicant did not clarify whether he was alleging that the Tribunal approached the review with a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any or any proper evaluation of the materials before it or whether a fair-minded lay observer might reasonably apprehend that it was not bringing an impartial and unprejudiced mind to the review. Whichever it might be, an allegation of bias must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69] per Gleeson CJ and Gummow J. The applicant has not done this. The allegation is indistinct and no evidence other than what appeared in the Tribunal’s decision record was relied on in support of it. What is contained in the decision record is insufficient to conclude that the Tribunal was biased or that a reasonable lay observer might have apprehended that it was. In particular, the fact that the Tribunal did not find that the evidence underpinning the 2009 RRT decision supported a similar decision two years later on facts which although similar were not identical does not support a conclusion that the Tribunal was biased in some way against the applicant.
For these reasons, the allegation of bias, if that is what it was, is not made out.

Conclusion

Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Cameron FM

Date: 31 May 2012