SZUTP v Minister for Immigration

[2016] FCCA 2904

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTP & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2904

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (class XA) visa – whether the Tribunal failed to take into account evidence – whether the Tribunal’s decision was unreasonable – whether the Tribunal afforded procedural fairness to the applicants – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 476.

First Applicant: SZUTP

Second Applicant: SZUTQ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2014 of 2014

Judgment of: Judge Street

Hearing date: 10 November 2016

Date of Last Submission: 10 November 2016

Delivered at: Sydney

Delivered on: 10 November 2016

REPRESENTATION

The Applicants appeared in person with the assistance of an Arabic interpreter.

Solicitor for the Respondents: Ms Chloe Hillary
(DLA Piper Australia)

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with.

2. The amended application is dismissed.

3. The Applicants pay the First Respondent’s costs fixed in the amount of $6,646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 2014 of 2014

SZUTP

First Applicant

SZUTQ

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 June 2014, affirming a decision of the delegate not to grant the applicants’ protection (Class XA) visas.

2. The first applicant is the father of the second applicant, and both are nationals of Lebanon. The first applicant was granted a Sponsor Visitor visa on 7 January 2013, but did not arrive in Australia until 4 March 2013. It was not until 5 April 2013 that the first applicant lodged an application for protection. The second applicant had arrived in Australia on a student visa in July 2010, and he was included in the first applicant’s application for protection as a member of his family unit.

3. The first applicant claimed that in October 2009, the second applicant witnessed one of their neighbours, Mr F, arranging a terrorist attack, being a person who was a member of the Arabic Democratic Party (“the ADP”). The first applicant claimed that the second applicant alerted men in the neighbourhood and that the neighbour was caught and confessed to the terrorist attack.  The applicants claimed that as a result of these events, the family was specifically targeted by the ADP and its leader, Ali Eid. The applicants claimed that their home was bombed on 20 July 2011 and that there was an attempt to abduct the second applicant in October 2009.

4. The first applicant also alleged that his other son living in Lebanon had been assaulted and threatened at his home in August 2012.  Further, it was alleged that the applicants had been targeted by a sniper on several occasions in 2009, 2010 and that the house was shot at on 13 September 2012.

The Delegate

1. A psychologist’s report dated 28 March 2013 was also provided to the delegate. That psychological assessment found that the first applicant was suffering from post-traumatic stress disorder with depression and anxiety. The delegate made reference to that psychologist’s report and was not convinced that the report can be relied on to determine that the applicants had been persecuted. The delegate was also not convinced that the report contained sufficiently informed and reliable information to conclude that the applicant was traumatised and could not participate in an interview in relation to his protection visa claims.

2. The delegate made reference to the interview the delegate conducted with the first applicant. The delegate considered that the first applicant’s responses to questions, his attentiveness, focus and demeanour, demonstrated that the first applicant was able to actively and effectively participate in the interview.  The delegate noted that the delegate could see no evidence that the first applicant was suffering from any health condition that may have impacted on his ability to participate in the interview.

3. The delegate made reference to the first applicant’s immigration history and testimony. The delegate made adverse credibility findings in relation to the first applicant’s claims and evidence, and found those claims not to be credible. The delegate did not accept that the first applicant had been a target of a militia group in Lebanon.

4. The delegate was no satisfied that Australia had protection obligations to the first applicant under s.36(2)(a) of the Act. The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to Lebanon, there is a real risk that the first applicant will be subject to significant harm. The delegate found that the first applicant did not meet the criteria under s.36(2)(aa) of the Act.

5. The delegate noted that the second applicant was included in the first applicant’s protection visa application as a member of the same family unit. The delegate’s refusal to grant the first applicant a protection visa meant the second applicant’s protection visa application was also refused.

The Tribunal

1. On 29 October 2013, the applicants applied for review of the delegate’s decision by the Tribunal.  By letter dated 13 May 2014, the applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments on 11 June 2014. The applicants attended the Tribunal hearing on that date and were assisted by an interpreter. 

2. The Tribunal identified the relevant law in a summary incorporated in its reasons and marked Annexure A. The Tribunal did not accept that the applicants had a well-founded fear of persecution for a Convention reason, and did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Lebanon, there is a real risk that they would be harmed.

3. The Tribunal identified the applicants’ claims and the evidence, and found that the first applicant was not a credible, truthful or reliable witness. The Tribunal found the first applicant’s evidence to be evasive, inconsistent and non-credible. The Tribunal gave detailed reasons for its adverse credit findings, including the delay of the first applicant in leaving Lebanon.

4. The Tribunal made express reference to the psychologist’s report. The Tribunal noted the first applicant’s assertions to the psychologist as to what had happened to him in Lebanon. On the basis of the adverse credibility findings made by the Tribunal, the Tribunal did not give the assertions made to the psychologist by the first applicant any weight.

5. The Tribunal was prepared to accept that the first applicant was suffering from post-traumatic stress disorder. The Tribunal noted that neither applicant claimed that the first applicant was unable to participate in the Tribunal hearing, although it was asserted that the first applicant found it difficult to concentrate and was confused. The Tribunal was not satisfied, on the evidence before it, that the first applicant was not able to participate properly in the interview with the delegate on 23 September 2013. The Tribunal was not satisfied that the first applicant was unable to participate properly in the hearing before the Tribunal on 11 June 2014. The Tribunal found that the first applicant was able to understand questions, give evidence, and participate at the hearing.

6. The Tribunal did not accept, in the light of its adverse credibility findings, that the first applicant and his family or his family home were targeted by members of the ADP.  The Tribunal was prepared to accept that the family home was damaged by fighting on one occasion in or before 2011. However, the Tribunal was not satisfied that this was a result of a targeted attack on the applicants’ home or any of their family members by Mr. F or any other members of the ADP. The Tribunal found that, on the evidence before it, the damages caused to first applicant’s house was as a result of the house being accidentally caught in crossfire.

7. The Tribunal found that the first applicant was not a witness of truth and that the first applicant had fabricated an account of events upon which he had based his protection claims. The Tribunal did not accept that the first applicant and his family or his family home were targeted by Mr. F or any member of the ADP. The Tribunal did not accept that there is a real chance that the applicants would come to the adverse attention of, or be targeted by, Mr. F or any member of the ADP now or in the reasonably foreseeable future.

8. The Tribunal found that the first applicant fabricated his claims in relation to being specifically targeted for harm by anyone. The Tribunal did not accept that the first applicant had a well-founded fear of persecution at the hands of Mr. F or any other members of the ADP now or in the reasonably foreseeable future.

9. The Tribunal found the second applicant not to be a credible, truthful or reliable witness, and gave detailed reasons for its adverse credibility findings. One of those reasons included the  second applicant’s delay in lodging his application for protection. The Tribunal noted that the second applicant arrived in Australia in July 2010 holding a student visa, but delayed in making a protection visa application until April 2013.  The second applicant told the Tribunal that when he first arrived in Australia, he saw a solicitor about applying for refugee status, but on the news he heard that the Australian government were planning to send refugees back to their own country, because he had a valid visa for two years, he thought he had plenty of time to apply for protection.

10. The Tribunal did not accept that explanation and found that the second applicant’s delay of almost three years in applying for protection in Australia undermined the second applicant’s claim to have been targeted in the past or to have any genuine fear of harm in Lebanon.  The Tribunal made reference to the second applicant’s evidence about the attack on the family home in 2012 and his belief that they were still after him and would kill him. The Tribunal noted that the son’s second applicant’s further delay of another eight months in applying for protection was indicative that the applicants had fabricated their claims.

11. On the basis of the adverse credibility findings, the Tribunal did not accept that the second applicant, his family or his family home were targeted by Mr. F or other members of the ADP, nor that there was any real chance that the applicants would come to the adverse attention of or be targeted by Mr. F or other members of the ADP now or in the reasonably foreseeable future. The Tribunal considered the second applicant had fabricated his claims in relation to being specifically targeted for harm by anyone. The Tribunal was not satisfied that the second applicant had a well-founded fear of persecution at the hands of Mr. F, or other members of the ADP now or in the reasonably foreseeable future.

12. The Tribunal took into account the DFAT report of 18 December 2013 which was raised with the applicants by the Tribunal in the course of the hearing. The Tribunal noted that the applicants’ family home was damaged in 2011 and that the family did not move away. The Tribunal found this to indicate that the family was of the view that the incident would not recur. The Tribunal did accept that on rare occasions, the applicants’ family had gone to live temporarily at the first applicant’s sister’s home. The Tribunal did not accept that the applicants’ family had no other choice but to remain and reside in their home.

13. The Tribunal found that the applicants’ family had resided at the family home since the conflict started. The Tribunal found that the applicants did not hold a genuine fear of harm while living at their family home.  Taking into account the country information and that the applicants’ family remain living at their home, the Tribunal was not satisfied that the applicants face a real chance of serious harm, or a real risk of significant harm or violence. Although not required to do so, the Tribunal also made an alternative finding that it was reasonable for the applicants to relocate. That finding took into account the psychologist’s report in relation to the first applicant.

14. The Tribunal was not satisfied that either or both of the applicants had a well-founded fear of persecution for one or more of the Convention reasons in the reasonably foreseeable future. The Tribunal also took into account the psychologist’s report in relation to considering whether the applicants met the criterion for complementary protection under s.36(2)(aa) of the Act. The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeing consequence of the applicants being removed from Australia to Lebanon, there is a real risk they will suffer serious harm. The Tribunal found that the applicants are not persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

15. The Tribunal found that the applicants did not satisfy the criteria under s.36(2) of the Act, and affirmed the decision not to grant the applicants’ protection visas.

This Court

1. Orders were made on 4 November 2014 providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. The applicants filed an amended application that identifies the following grounds:

   “1. The Member of the Refugee Review Tribunal acted contrary to our evidence which is supported by DFAT. Please see page 37 of the transcript which clearly country information indicates that people who are living in other parts of Jabal Mohsen and Tebbaneh neighbourhood facing low risks of sectarian violence.

   2. The Member of the Tribunal accepted that our home has been targeted and bombed as per Court Book, pages 44-48, yet the Tribunal came to a conclusion that we are not credible witnesses and that our claim is fabricated.

   3. The Tribunal Member disregarded my father's psychological problem and made a decision based on assumption and ignored that any inconsistency is a result of my father suffering from post traumatic stress disorder with high level of depression and anxiety which was accepted by the Tribunal. It is unreasonable that the Tribunal come to a conclusion that we are not refugees.

   4. The Tribunal acted against facts listed in the Court Book p. 176 and 177, especially point 59 onwards.

   5. The Tribunal Member acted contrary to the contents of letter which appears in Court Book p. 79 and 80.

   6. The applicant who is my father is a highly respected person. He is a credible person as it can be seen from his evidence and the facts listed in his visitor visa application. Therefore the Tribunal has no basis to draw adverse information against him. The Tribunal had evidence on p.62 of depositing money which should lead the Tribunal to accept my father is credible and is poor.

   7. The Tribunal failed to assess properly the relocation in Lebanon, especially after my father was diagnosed with medical condition. The Tribunal made an unreasonable decision.”

2. The applicants also filed an affidavit annexing a certified version of the transcript of the Tribunal hearing.

3. At the commencement of the hearing, the Court explained to the applicants that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicants the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained that in summary, this meant that the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair.

4. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, the Court would set aside the Tribunal’s decision and send it back to the Tribunal for further hearing. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error, the amended application would be dismissed.  The Court explained that it would identify the evidence, then hear submissions from the applicants, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicants in reply.

5. The second applicant confirmed that he understood the nature of the hearing as explained by the Court.  The first applicant indicated that he did not understand, and the Court repeated the explanation in respect of each of the matters above, in response to which the first applicant confirmed that he understood what was explained by the Court. The first applicant then confirmed that he understood the nature of the hearing as explained by the Court.

6. From the bar table, the second applicant contended that the Tribunal had failed to take into account the psychologist’s report. For the reasons already given, it is apparent that the Tribunal took into account the psychologist’s report, and it was a matter for the Tribunal what weight it gave to the psychologist’s report.  Further, it is apparent from the Tribunal’s reasons that it did not regard the first applicant’s post-traumatic stress as depriving the first applicant a meaningful participation in the hearing. For the reasons already given, the Tribunal did not accept that the psychologist’s report adequately explained the inconsistencies in relation to the first applicant’s evidence.

7. From the bar table, the second applicant maintained that he had been targeted for possible kidnapping and by snipers. He also maintained that his brother in Lebanon had been assaulted and questioned about the whereabouts of both the first and second applicants. This Court does not have power to make fresh findings of fact in relation to the applicants’ claims. On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  The adverse credibility findings made by the Tribunal were open on the material before the Tribunal, and cannot be said to lack an evident intelligible justification.

8. On the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.  It was a matter for the Tribunal to determine whether to accept the applicants’ evidence in relation to their explanation as to the reasons why they did not move from the family home. The adverse findings made by the Tribunal in that regard were open. 

9. It is apparent on the face of the Tribunal’s decision that it did take into account the generalised violence and the relevant country information. It was a matter for the Tribunal to determine which country information it accepted. It is apparent from the transcript, which has been tendered, that the country information adverse to the applicants’ claims in relation to generalised violence was raised with the applicants in the course of the hearing by the Tribunal.

10. The second applicant also sought to explain his reason for delay in applying for protection. The second applicant maintained that when he arrived in Australia as a student, he was of the view that the situation in Lebanon was not one that was of sufficient concern to compel him to apply for protection, and that he was proposing to return to Lebanon.  That explanation does not sit neatly with what the second applicant explained to the Tribunal. Be that as it may, it was for the Tribunal to determine whether it accepted the second applicant’s explanation in relation to his delay in applying for protection. The adverse credibility findings in relation to the second applicant cannot be said to lack an evident and intelligent justification, and were open on the material before the Tribunal.

1. Nothing said by the applicants from the bar table identified any jurisdictional error. 

2. In relation to the seven grounds in the application, I accept the first respondent’s submission that they are in substance an invitation to this Court to engage in impermissible merits view and none of the grounds identified any jurisdictional error.

3. In relation to ground 1, it was a matter for the Tribunal to determine which country information the Tribunal accepted, and it is apparent, as indicated, that the adverse country information was raised with the applicants during the Tribunal hearing.

4. Ground 1 is, in substance, a disagreement with the adverse findings made by the Tribunal, which does not identify any jurisdictional error. 

5. In relation to ground 2, it is not accurate that the Tribunal accepted that the applicants’ home had been targeted. The finding by the Tribunal was to the contrary. There is no inconsistency or illogicality in the Tribunal’s acceptance that the photographic evidence submitted by the applicants established that their family home was damaged by fighting on one occasion on one hand, and the conclusion drawn, on the basis of its adverse credibility findings, that the damages caused was a result the house being accidentally caught up in crossfire, and not due to the applicants being specifically targeted for harm.

6. Ground 2 fails to make out any jurisdictional error.

7. In relation to ground 3, it is apparent that the Tribunal did take into account the psychologist’s report in relation to the first applicant.  Ground 3 fails to make out any jurisdictional error. The adverse findings by the Tribunal in relation to the second applicant were, for the reasons already given, open. On the face of its reasons, the Tribunal approached the review in an orthodox manner, and it cannot be said that the Tribunal’s adverse findings were unreasonable or illogical.

8. Ground 4 is, in substance, a challenge to the acceptance by the Tribunal of particular country information. It was a matter for the Tribunal to determine what country information to accept.  Ground 4 fails to make out any jurisdictional error. 

9. Ground 5 is, in substance, a disagreement with the adverse findings made by the Tribunal. The Tribunal is not bound to accept the claims advanced by the applicants, and it was open to the Tribunal to make adverse credibility findings in that regard.  Ground 5 fails to make out any jurisdictional error.

10. Ground 6 is, in substance, a disagreement with the adverse credibility findings. For the reasons already given, those adverse credibility findings were open. Ground 6 fails to make out any jurisdictional error. 

11. In relation to ground 7, the issue of relocation was an alternative finding. In any event, there was no failure by the Tribunal to take into account the psychologist’s report in the alternative finding. No jurisdictional error is made out in relation to the alternative finding.  Ground 7 fails to make out any jurisdictional error.

12. From the bar table, the second applicant also suggested that the Tribunal should have made further inquiries in relation to the applicants’ claims.  There was no obvious inquiry about a critical fact that the Tribunal was required to pursue. It was a matter for the applicants to establish the claims advanced. 

Conclusion

1. The amended application fails to disclose any jurisdictional error.  The amended application is dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 November 2016