SZTOO v MIBP - [2015] FCCA 1631

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTOO v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1631

Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal failed to consider or “ignored” the applicant’s claims – whether the Tribunal misapplied the law – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 414, 425, 430, 476

SZTGS v Minister for Immigration and Border Protection [2014] FCA 908
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 162 ALR 1
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
SZSFK v Minister for Immigration & Anor [2013] FCCA 7

Applicant:

SZTOO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2945 of 2013

Judgment of:

Judge Nicholls

Hearing dates:

31 October 2014, 15 May 2015

Date of Last Submission:

15 May 2015

Delivered at:

Sydney

Delivered on:

17 June 2015

REPRESENTATION

Applicant:

In person

Solicitors for the Respondents:

Mr L Dennis of Sparke Helmore

ORDERS

The application made on 27 November 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2945 of 2013

SZTOO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 27 November 2013 for review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 October 2013 which affirmed the decision of the delegate of the Minister to refuse a Protection (Class XA) visa to the applicant.

Background

In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.
The applicant is a citizen of Lebanon. He arrived in Australia on 14 November 2012 on a visitor visa (CB 18). He applied for a protection visa on 18 December 2012 (CB 1 to CB 32). It appears that he received some assistance with his application, and he nominated “Mr Toufic Laba Sarkis” as his “authorised recipient” (CB 2).
The applicant’s claims to protection were set out in the application form. He claimed to fear harm as a Sunni Muslim from Alawis who had come to his home area in Lebanon (“The Alawi… are shooting at us” – CB 24.4). He also claimed to fear that he would be “shot and tortured” by other religious sects if he returned to Lebanon.
The applicant made reference to generalised violence in his home area. He also recounted some specific instances of past harm, including being attacked at his father’s workshop and that a friend had been shot dead while opening the workshop.
The delegate interviewed the applicant on 22 April 2013 (CB 64.6). The grant of the visa was refused by the delegate on 11 July 2013 (CB 49 to CB 74). The delegate found inconsistencies between the applicant’s written claims and what he said at the interview.
The applicant applied to the Tribunal for review of the delegate’s decision on 6 August 2013 (CB 75 to CB 80). Mr Laba Sarkis was again appointed as the “authorised recipient” (CB 78). The applicant attended a hearing before the Tribunal on 22 October 2013 and gave evidence. The only evidence before the Court of what occurred at that hearing are the references set out in the Tribunal’s decision record.
This records that the applicant made further claims that were not in the visa application ([16] at CB 100). These claims were that his brother was married to a Sunni from Syria, whose family relocated to his home area and were supporters of the Assad regime in Syria. The applicant also gave evidence about other instances of past harm, including that his father and brother had been at a mosque that was targeted by a car bomb ([20] at CB 101).
The Tribunal concluded that his “chance of facing Convention related harm” in his home area, where he also worked, as a result of clashes between Alawis and Sunnis, was remote ([15] at CB 100). In reaching this conclusion the Tribunal accepted the applicant’s factual account of the location of his father’s workshop, and the occurrence of local violence. However, the Tribunal found that the applicant’s father’s workshop was not targeted, or singled out, for any Convention reason.
Similarly, the Tribunal accepted that his friend had been killed. However, it found that this was not as a result of targeting for any Convention related reason, but simply that he was in the wrong place at the wrong time ([14] at CB 100). The Tribunal accepted that in March 2012 some Sunni men came to his father’s workshop looking for his brother. The Sunni men accused the family of harbouring Assad supporters and doing business with Alawis.
However, the Tribunal found there was no other evidence before it that the applicant’s family had been targeted or subjected to harm due to their express or imputed political opinion. The Tribunal was not satisfied that if the applicant were to return to his home area that there was a real chance of harm for any Convention reason ([17] at CB 100). The Tribunal also found that even if the applicant were to “harbour” pro-Assad views this would not lead to serious harm ([18] at CB 100).
The Tribunal accepted the applicant’s concerns in relation to the general instability and rising sectarian violence in northern Lebanon. It noted that the applicant had not claimed to have suffered harm in the past because of his Sunni religion. It noted country information that did not suggest that Sunni’s were being seriously harmed by Shias or other religious groups in Lebanon ([19] at CB 101).
In relation to the claim raised at the hearing about the car bomb at the mosque, the Tribunal found ([20] – [21] at CB 101):
“[20] The applicant claimed at the hearing that his father and brothers were at a mosque in Tripoli on 23 August 2013 when it was targeted by a car bomb, but they escaped injury. He stated that his father and brothers were praying at the mosque because it is very close to where they work. According to news reports, the August 23 blasts, which targeted two Sunni Muslim mosques and killed 47 people, came less than a fortnight after a deadly explosion in a Shi'a neighbourhood south of Beirut. As it was put to the applicant at hearing, there have been no reports of further similar attacks in Tripoli. Other reports indicate that the authorities have since charged 7 people over the bombing. The Tribunal does not consider the incident to be a typical occurrence. The Tribunal is not satisfied that there is a real chance that the applicant will be killed or harmed or otherwise persecuted in the context of bombings of this nature if he were to return to Tripoli. The sources consulted by the Tribunal do not suggest that Sunnis are denied the freedom to practise their religion or that the applicant would be seriously harmed in Tripoli because he is a Sunni. The Tribunal is not satisfied that there is a real chance that the applicant will be killed or injured, or otherwise persecuted, or that he will be prevented from practising his religion, as a result of rising sectarian tensions in Lebanon.
[21] The Tribunal is not satisfied that the sectarian tensions, instability and the general lack of safety the applicant is apprehensive of in Lebanon is faced by him personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason in Lebanon.”
As a result the Tribunal found that the applicant did not satisfy the criterion at s.36(2)(a) of the Act for the grant of the visa.
In relation to complementary protection, the Tribunal accepted that Lebanon was currently experiencing some instability and, political and sectarian tensions. However, it made the following finding ([23] at CB 101 to CB 102):
“The Tribunal accepts that Lebanon is currently experiencing some instability, as well as political and sectarian tensions, which have resulted in parts of the country being affected by violence. However, having considered all the applicant’s circumstances, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm as a result of instability, tension or general violence. The Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life or that he will otherwise suffer significant harm at the hands of other Sunnis, Alawis or anyone else in Lebanon if he returns to Tripoli. The Tribunal is not satisfied that, if the applicant returns to his home in Tripoli, there is a real risk that he will suffer significant harm as defined because he is a Sunni or because his in-laws are supporters of Bashar Al Assad.”
The Tribunal found that the applicant did not satisfy the criterion at s.36(2)(aa) of the Act. It affirmed the delegate’s decision to refuse the grant of a protection visa to the applicant.

The Application Before the Court

The grounds of the application to the Court are in the following terms:
“1. The Tribunal failed to consider my circumstances.
2. The Tribunal failed to accept the significant harm and ignored the harm previously suffered.
3. The Tribunal misapplied the law.”
The applicant appeared in person at the first Court date in this matter on 18 December 2013. A number of orders were made for the progress of the applicant’s case, including the opportunity for the applicant to file any amended application or evidence by way of affidavit in support of his grounds. Given the nature of the grounds of the application, the matter was set down for a show cause hearing on 31 October 2014.
The applicant again appeared in person on that date. He was assisted by an interpreter in the Arabic language. The applicant had not filed any amended application or evidence by way of affidavit, despite the opportunity provided to him. The Minister had filed an outline of written submissions.
During the course of that hearing two matters arose. First, the manner in which the Tribunal dealt with the applicant’s claims to have been attacked in his father’s workshop (“the altercation issue”). Second, whether, in light of SZTGS v Minister for Immigration and Border Protection [2014] FCA 908 (“SZTGS”), the Tribunal had provided sufficient reasoning for its conclusions, with particular references to [23] (at CB 101 to CB 102 – see [15] above) (“the SZTGS issue”). The hearing was adjourned to allow the parties the opportunity to consider these matters and to make written submissions.
At the resumption of the hearing on 15 May 2015, and following receipt of the Minister’s written submissions, I determined that there was at least an arguable case and that the hearing should proceed as a final hearing.

Consideration: The Altercation Issue

The basis for this issue is explained as follows. The Tribunal accepted that in March 2012 some Sunni men came to the applicant’s father’s workshop looking for the applicant’s brother. It accepted that the applicant was present and that an altercation had taken place. It stated however, “[t]he applicant did not claim that he was personally harmed” ([17] at CB 100).
However, the applicant had made such a claim. In his application for the protection visa, the applicant wrote, in relation to the incident of March 2012, “…I also had bruising and cuts. They were hitting us with metal poles & their fists” (CB 23.2).
The Minister accepted that the Tribunal’s statement was a “misstatement” of this part of the applicant’s claims. He argued, however, that this did not amount to jurisdictional error. There were a number of reasons advanced for this.
First, there is no error of law in the Tribunal making a wrong finding of fact (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137]). Obviously, this must be accepted. However, it must be noted that there is an error of law where the Tribunal fails to deal with a claim to fear harm either expressly made, or clearly arising from the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244) (see further below).
Second, that this was not a case where the Tribunal engaged in “…a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise” (SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37]). In this case, the Tribunal accepted much of the applicant’s account of past events in Lebanon. In particular, it accepted that the incident of March 2012 had occurred. The Tribunal did not affirm the delegate’s decision because of any adverse finding as to the applicant’s credibility in this regard.
As set out above, the Tribunal’s obligation is to consider all claims and aspects of claims made by an applicant. However, this must be understood as being claims to fear harm in the reasonably foreseeable future if the applicant were to return to his home country. I note that from Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov ”), the relevant obligation on the Tribunal is to consider all substantial and clearly articulated claims, relying on established facts, expressly made or clearly arising from the circumstances presented.
In the current case, the applicant claims to fear harm on return to Lebanon from Sunnis because of sectarian violence between Sunnis and Alawites, and the perception by Sunnis that he, and his family, were pro-Assad because of his brother’s wife, who had “recently” moved to Lebanon from Syria and their business with Alawites

([16] – [17] at CB 100).
In this context, the applicant advanced the claim that some Sunni men had come to his father’s shop in March 2012 looking for the applicant’s brother. The Tribunal accepted that this had occurred.
The Tribunal, however, had regard to the applicant’s own evidence given at the hearing. This was that the police subsequently intervened, the “culprits” were arrested and were then released. The applicant gave evidence that he did not know who the men were and that he did not encounter them in the time after the incident, while he remained in Lebanon.
Importantly, the Tribunal had regard to the applicant’s evidence that neither he, nor any member of his family had come to any harm from Sunnis after the incident, including after he left Lebanon. The Tribunal noted that there was “no other evidence” before it to indicate that the applicant’s brother’s in-laws, or any members of his family, had been targeted, or subjected to harm due to any imputed or express political opinion.
In these circumstances, the Tribunal reasoned that it was not satisfied that if the applicant were to return to his home town there was a real chance of serious ([17] at CB 100) or significant ([23] at CB 101 to CB 102) harm.
The applicant has not sought to provide a transcript of the Tribunal hearing to the Court to dispute what the Tribunal said he said at the hearing before it. In this circumstance, there is no reason not to accept the Tribunal’s report.
Before the Court, the applicant claimed that the incident of March 2012 was not a “random” attack and that he had been personally targeted. I understood him to say that this was a “personal attack”.
The Tribunal made no finding as to whether this was a random attack or not. Rather, it accepted that the incident had occurred, but reasoned, that in the totality of the evidence presented, it could not be satisfied that there was a real chance of serious or significant harm in the reasonably foreseeable future. This, and the findings informing it, were reasonably open to the Tribunal.
In relation to the matter of it being a “personal attack”, the Tribunal accepted that the Sunni men came to his father’s workshop looking for the applicant’s brother. This was the extent of the applicant’s relevant claim. There was no claim made to the Tribunal, or to the delegate, that the men came to the workshop looking for the applicant “personally”. If this is what the applicant now seeks to submit, this was not a claim made to the Tribunal. At its highest, the Sunnis were seeking the applicant’s brother “personally”, not the applicant.
In all the circumstances, I agree with the Minister that while the Tribunal made an error of fact in saying that the applicant made no claim to have been harmed in the incident, this was not a factual error that went to the exercise of the Tribunal’s jurisdiction.
The Tribunal considered the basis of the applicant’s claim to fear harm on return to Lebanon. Whether the applicant was personally harmed, or not in this incident, has no material effect on the Tribunal’s subsequent reasoning, given that the basis of its conclusion arose from the applicant’s evidence as to the circumstances consequent upon, and subsequent to, the incident.
I agree with the Minister that, notwithstanding this error, the Tribunal had an accurate understanding of the applicant’s claims to fear harm on return, as those claims were presented. I agree with the Minister that in light of the above, the Tribunal conducted the review with “…a consciousness and consideration of the submissions, evidence and material advanced by the applicant” (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [38]).
The Tribunal understood that the altercation may have led to a finding of serious harm but, ultimately, in light of other evidence given by the applicant, it could not be satisfied that the applicant would face serious or significant harm in the foreseeable future. No jurisdictional error is made out here.

Consideration: The “SZTGS” Issue

The second matter, “the SZTGS issue”, can be explained as follows. In SZTGS, the Federal Court found that the Tribunal, in that case, did not explain in its decision record “why it was not satisfied” as to the reasons that either of the criteria at s.36(2) of the Act, were not met, and that this left the applicant in that case “bereft of an explanation” (SZTGS at [31]).
The concern in this case is that much of what the Tribunal set out at [19] – [20] (at CB 101) of its decision record appeared to assert conclusions that it could not be satisfied that the applicant would face harm. That is, at those paragraphs it expressed conclusions without setting out reasoning to satisfactorily explain how it came to these conclusions.
Before the Court, the Minister, fairly, described this part of the Tribunal’s decision record as “disjointed”. Nonetheless, the Minister submitted that on a fair reading, it is possible to “glean its reasons” for finding that the applicant did not face risk of harm on return. Such a reading requires also that these be read in context of what was said by the Tribunal at [21] (at CB 101) to [23] (at CB 102).

On reflection, and on balance, I agree with the Minister. In doing so, I note that while brevity, in itself, is not revelatory of jurisdictional error in a Tribunal decision, Tribunal members should heed what the Federal Court said in SZTGS. Plainly, Tribunal decision records are meant to inform as to reasons for the decision made. This is so even in circumstances where a breach of s.430 of the Act, on its own, may not lead to jurisdictional error (Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [54], Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at [41]-[46] per Gleeson CJ, Gummow and Heydon JJ; and Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at [70] per Tracey J).
In the current case, at [19] – [20] of its decision record (at CB 101), the Tribunal sought to address the applicant’s claim to fear harm because of general instability in northern Lebanon and the rise of sectarian tensions.
It is to be noted that the Tribunal had already addressed the specific instances of past harm. That claim, which the Tribunal accepted, was said by the applicant to have arisen in the context of rising sectarian tensions and general instability. In that sense, therefore, what the Tribunal set out at [19] – [20] (at CB 101) must be fairly read in context of what precedes it.
In this light, the Tribunal can be said to have understood that the applicant’s claim to fear harm arose out of the general instability and tensions in northern Lebanon. Having dealt with the instance of past harm, the Tribunal turned, at [19] (at CB 101), to consider the applicant’s claim to fear harm as to that part of his claim that was said to arise from this “general” situation.
It found that he made no claim to have suffered harm in the past for reason of his Sunni religion. To the extent that the general instability involved a claim of harm from Shias, the Tribunal relied on country information to find that Sunnis were not generally persecuted or harmed by Shias ([19] at CB 101).
Further, the Tribunal addressed the claim of an attack on a mosque in northern Lebanon, when his brothers and father were in attendance. The Tribunal found, however, that this was an isolated instance and that it was not satisfied that such an occurrence could be said to be an example of past harm faced by the applicant “personally”. Similarly, in this context the Tribunal also considered the claim that he would face harm because of the situation of general instability in Northern Lebanon. It found that this situation would not expose the applicant, personally, to serious harm. The Tribunal also found that there was not a real chance he would be harmed for, or prevented from, practicing his religion ([20] – [21] at CB 101). These conclusions were reasonably open to the Tribunal on what was before it.
The Tribunal’s expressed conclusions at [22] (at CB 101) to [23] (at CB 102) (dealing with serious and significant harm) are, therefore, explained when regard is had to the totality of the decision record, and the clarification of the claims addressed at [19] – [22] (CB 101). No jurisdictional error arises here.

Consideration: The Grounds

The grounds of the application to the Court are set out at [17] above. The following consideration should be understood and informed in context of what is set out above.
Ground one of the application claims that the Tribunal failed to consider the applicant’s circumstances. No particulars are provided.
If this is an assertion that the Tribunal failed to consider his claims then on the evidence, this is not the case (noting what is set out above). In view of the Tribunal’s decision record, what the applicant complains is that the Tribunal failed to find that the applicant’s circumstances presented a real risk of harm.
The Tribunal accepted a large number of factual claims made by the applicant. In essence, and as set out above, the Tribunal’s reasoning, both in relation to the Refugees Convention, and complementary protection, was that while the general situation in Lebanon reveals sectarian and political violence, on the evidence before it, that is the applicant’s evidence and country information, it could not be satisfied that the applicant would be individually targeted for reason of his Sunni religion. This finding was reasonably open to it on the material before it. Ground one does not reveal jurisdictional error.
Ground two complains that the Tribunal “failed to accept” that the applicant would suffer significant harm and also that it ignored the applicant’s claim of previous harm.
On a fair reading of the Tribunal’s decision record, and in light of my findings above, it cannot be said that it ignored the applicant’s claims of a past instance of harm. It accepted that it had occurred. However, it gave reasons and made findings reasonably open to it as to why this would not lead to a real risk of significant, or for that matter, serious harm in the reasonably foreseeable future. No jurisdictional error is revealed.
The third ground asserts that the Tribunal “misapplied the law”. There are no particulars provided as to how the Tribunal misapplied the law. In any event (also with reference to what is set out above), I cannot see that the Tribunal misapplied the law. The Tribunal conducted the review pursuant to s.414 of the Act. It invited the applicant to a hearing pursuant to s.425 of the Act. It is clear, on the Tribunal’s decision record, that the Tribunal understood the difference between the two sets of relevant criteria in s.36(2) of the Act and applied the appropriate tests (Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 and SZSFK v Minister for Immigration & Anor [2013] FCCA 7). No jurisdictional error is revealed.

Conclusion

The grounds of the application are not made out. No jurisdictional error on the part of the Tribunal is revealed. The application should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 17 June 2015