SZVCN v Minister for Immigration - [2016] FCCA 431

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVCN v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 431

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal considered applicant’s claims – whether due to mental condition applicant unable to participate meaningfully at hearing before Tribunal – whether Tribunal’s findings reasonably open to it – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 417

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553
Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235

Applicant:

SZVCN

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2608 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

5 March 2015

Delivered at:

Sydney

Delivered on:

4 March 2016

REPRESENTATION

The applicant appeared via video conferencing link assisted by an interpreter

Solicitors for the Respondents:

Ms B Griffin of Australian Government Solicitor

ORDERS

The application is dismissed.
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2608 of 2014

SZVCN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a stateless Palestinian who, before his entry into Australia in 2005, was a habitual resident of Lebanon.
In March 2009 the applicant applied for a Protection (Class XA) visa (initial protection application). That application was made before s.36(2)(aa) of the Migration Act 1958 (Cth) (Act) came into effect. That subsection introduced complementary protection as a ground for the granting of a Protection visa. Thus, the only criterion the applicant had to satisfy for being granted a Protection visa at the time of the initial protection application was that he was a “refugee” within the meaning of the Refugees Convention.[1]
[1] Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967, Article 1A(2)
The initial protection application was refused by a delegate of the first respondent (Minister) on 2 June 2009 and, on 15 November 2010, the second respondent (Tribunal) affirmed the decision of the delegate. In May 2013 the applicant’s representative applied to the Minister to intervene under s.417 of the Act but, by letter dated 6 August 2013, the Department of Immigration and Citizenship (as the Department of Immigration and Border Protection was then known) (Department) informed the applicant the Minister had declined to intervene.
On 3 July 2013 the Full Federal Court handed down its decision in SZGIZ v Minister for Immigration and Citizenship in which it held that a person was entitled to apply in the migration zone for a Protection visa based on complementary protection grounds in circumstances where an earlier application by that person for a Protection visa based on the Refugees Convention had been refused.[2] On 22 August 2013, therefore, the applicant applied for a Protection visa on the ground that he satisfied the complementary protection criterion specified in s.36(2)(aa) of the Act (second protection application).
[2] [2013] FCAFC 71; (2013) 212 FCR 235
On 8 April 2014 another delegate of the Minister rejected that application, and, on 15 September 2014, a differently constituted Tribunal affirmed the delegate’s decision. The applicant now applies for judicial review of the Tribunal’s decision.

Applicant’s claims for protection

The applicant’s claims for protection were initially set out in a statutory declaration that formed part of his application for a Protection visa. [3] In that statutory declaration, the applicant asserted that his father was a colonel in Fatah. The applicant, after turning sixteen, started to get involved with Fatah. To enhance his earnings and build up his future in Lebanon, the applicant also joined the Amal movement. After the applicant’s father disappeared, Amal officers asked the applicant to gather and supply the movement with information about the internal organisation of Fatah.
[3] CB47
A few months after the applicant’s father’s disappearance, the applicant’s mother married another man who also worked for Fatah. The applicant’s stepfather, with whom the applicant did not have a good relationship, advised Fatah officers the applicant was engaged by Amal as a spy. The “day after”, a Fatah officer interviewed the applicant and, the day after that day, the applicant was interrogated. The applicant was then kept in a cell for seven days during which time he was systematically tortured, and verbally and physically abused. “More recently” the applicant received a message from his stepfather and other “ex-friends” telling the applicant that if he went back to Lebanon he will be subjected to “Fatah investigation and torture”, and the applicant’s stepfather threatened him “in the same manner”.
Before the delegate, the applicant claimed that, after spending six months in the Amal Movement, he did not feel safe. Through a friend, the applicant joined Hezbollah. A couple of months later, Hezbollah discovered the applicant was a Sunni Palestinian, and had previously been a member of Fatah and the Amal Movement. The applicant was suspected of being a spy and he was detained by Hezbollah and tortured for three months before he escaped. The applicant then hid from Hezbollah at the basement of his grandmother’s house for 18 months until leaving for Australia. The applicant also claimed he had “recently” come to know that he will be detained, tortured, and killed if he were to return to Lebanon.[4]
[4] CB88
The applicant submitted a number of documents in support of his claims. These included a certified copy of a translation of an undated document that purported to be a letter to the “Security Committees” from the “Security Committees, Islamic Resistance in Lebanon” stating “[p]lease keep working on the search and investigation of the so-called” applicant,[5] and a certified copy and translation of a document dated 8 December 2004 purportedly from the Palestinian Liberation Organisation[6] stating that the applicant used to live in a refugee camp, has been subjected to death threats from an “extremist fundamentalist group” because of his “anti-religion extremism ideas” and that “he was the subject of several assassination attempts”.[7]
[5] CB70
[6] CB72
[7] CB195, [25(f)]; [25(g)]
In addition, the applicant provided to the Tribunal a letter dated 12 March 2014 from the Secretary of the Department that referred to unauthorised access to personal information about people who were in immigration detention on 31 January 2014 (data breach). The letter also stated that the person to whom the letter was addressed might have had personal information accessed during that time.[8]
[8] CB196, [33]
At the hearing before the Tribunal the applicant said he feared harm from his maternal uncle.[9] The applicant claimed the maternal uncle said to the applicant over the telephone that the applicant and his mother brought shame to their family.[10] That statement was made in relation to the break-up of the applicant’s mother’s marriage with the applicant’s stepfather that occurred in 2007.[11] The applicant said his maternal uncle worked as a guard for Fatah.[12]
[9] CB197, [39]
[10] CB198, [40]
[11] CB192.6
[12] CB198, [41]
The applicant was asked why he did not in the initial protection application include his claims about being involved with Fatah, the Amal movement, and Hezbollah. The applicant said the lawyer that represented him at the time told the applicant not to say anything about those matters. The applicant was also asked why the applicant did not mention those claims in his request for intervention by the Minister, or why those claims were not mentioned in psychiatric reports the applicant had provided in the past. The applicant said he had been in prison and detention and he did not think it would have made any difference.[13]
[13] CB200, [50]
The applicant repeated what he had told the delegate, namely, that, through a friend, the applicant joined Hezbollah.[14] He said he began to drop off cars that had weapons and ammunition in them, that he worked as a guard for these cars, and that one time the car he was in was ambushed.[15] The applicant said one of his friends was killed.[16] The applicant said he stopped working with Hezbollah because a car he was in was ambushed. In the course of an investigation into the ambush, Hezbollah became aware the applicant was a Sunni Palestinian who had worked for Fatah. The applicant was then held in a camp for three months where he was interrogated, blindfolded, and bashed.[17] The applicant said that Hezbollah were still after the applicant because they thought he was responsible for the death of a Hezbollah officer. The applicant said that the man who had been killed in the car ambush was the officer in charge.[18]
[14] CB199, [46]
[15] CB199, [46]
[16] CB199, [47]
[17] CB199, [47]
[18] CB200, [48]
The applicant was asked about the documents he had provided in relation to the data breach. The applicant said the data breach placed him at a risk of harm because Hezbollah were not small, and he was certain they would have access to information about him. The applicant accepted that the data breach was only a problem for him because Hezbollah was already interested in him.[19]
[19] CB201, [53]
The applicant’s claims were supported by evidence given by the applicant’s mother and sister. The applicant’s mother said her brother wanted to harm the applicant in Lebanon because he was involved with Hezbollah.[20] The applicant’s sister said that the applicant was at risk of harm if he returned to Lebanon because Hezbollah, Fatah, and their relatives had threatened him.[21]
[20] CB202, [62]
[21] CB202, [65]. The applicant’s other sister also gave evidence in support of the applicant’s claimed fear of harm – CB203, [68]
By letter to the applicant dated 7 July 2014, the Tribunal identified a number of inconsistencies. [22]
a)During his interview by the delegate, and before the Tribunal, the applicant claimed he worked for Hezbollah, was detained and tortured by Hezbollah, and that he was in a car with a Hezbollah officer when it was ambushed. The applicant, however, did not make these claims in his second protection application or in the statutory declaration he had provided in support of that application. Nor did the applicant make these claims in his initial protection application.
b)In his second protection application, the applicant claimed he had suffered harm at the hands of the Amal movement and Fatah; and that he feared being subjected to further investigation by Fatah if he were to return to Lebanon. The applicant did not make these claims in in his initial protection application.
c)During his interview by the delegate, the applicant said he had been ambushed in a car but during the hearing before the Tribunal the applicant said he was in the car with a Hezbollah officer who was killed and Hezbollah held the applicant responsible.
d)Reports prepared by a clinical psychologist dated 20 September 2010 and by a counsellor dated 14 December 2010 do not record the applicant as having claimed he suffered physical or psychological harm as a result of his having been detained, tortured or otherwise harmed by Fatah, the Amal movement, or by Hezbollah.[23]
[22] CB147-149
[23] CB155-164
The applicant responded by providing the Tribunal with a number of documents. One was a statutory declaration in which the applicant said he did not mention the car incident in his statutory declaration that he submitted in the second protection application because he had “several and significant bad experiences with the most powerful militia in Lebanon”, and he was unable to recall those events because of his “disabilities, injuries and the medications”.[24] The applicant further said that he arrived in Australia to commence a new life and wanted to “forget most of my dark past and miserable life as a minor”.[25] The applicant also said it was a mistake he did not include in the initial protection application his claim that his father “was a senior official of Fatah”.[26] The applicant said it gave him very bad memories that he “decided to forget forever”.[27] The applicant also said he still had scars on his head from his detention and tortures, and he was physically abused in Lebanon as a minor. He said he has been under treatment for epilepsy since 1998, he suffered a lot as a minor, he experiences chronic pain, and he is visiting a psychologist and is receiving counselling.[28]
[24] CB169, [2]
[25] CB169, [2]
[26] CB169, [4]
[27] CB169, [4]
[28] CB169-170, [5]

Tribunal’s reasons

The Tribunal did not accept the applicant’s claims. It found the applicant deliberately provided false information to the Department, the previously constituted Tribunal, and the Tribunal member about his reasons for seeking protection.[29] The Tribunal found that the applicant’s claims that his father was a member of Fatah, and that the applicant had worked for Fatah, the Amal Movement, and Hezbollah were false. The Tribunal also found that the witnesses who supported the applicant’s claims were not witnesses of truth.[30] The Tribunal principally relied on the applicant’s not having made the claims in the initial protection application.[31] The Tribunal did not accept the applicant’s explanation for not having included those claims in the initial protection application, namely, the applicant’s lawyers had advised the applicant not to.[32] Nor did the Tribunal accept the applicant’s explanation for his not having previously included the claim relating to his uncle because he believed he could not make those claims without documentary evidence.[33]
[29] CB210, [92]
[30] CB211-210, [92]
[31] CB209, [84]
[32] CB209, [85]
[33] CB209, [85]
The Tribunal considered the applicant’s claim that his mental health affected his ability to remember what happened to him in Lebanon. The Tribunal accepted the applicant suffered from epilepsy since 1998. The Tribunal noted, however, that the applicant provided no medical evidence that showed the applicant suffered from any memory problems. The Tribunal gave little weight to the reports the applicant provided about his mental health.[34] The Tribunal found the applicant was able to participate meaningfully in the hearing before the Tribunal and he appeared to have been able to do the same during the interview with the delegate.[35]
[34] CB209, [86]
[35] CB209, [86]
The Tribunal found highly implausible the applicant’s explanation for not having provided to the Department or to the Tribunal as previously constituted the documents to which I refer in paragraph 9 of these reasons.[36] Based on the Tribunal’s adverse assessment of the applicant, the Tribunal found that the documents were fabricated in an attempt to strengthen the applicant’s claim for protection.[37]
[36] CB209, [87]
[37] CB209, [87]
The Tribunal did not accept the applicant’s explanation for the discrepancies between the statutory declaration the applicant provided in support of his second protection application (in which the applicant did not mention he was at risk of being targeted by Hezbollah because of his involvement in an incident with a Hezbollah officer where that officer was killed in an attack on a car in which the applicant was an occupant), and the applicant’s telling the Tribunal that he was at risk of being targeted by Hezbollah for that reason.[38] The Tribunal found that the applicant’s not mentioning the incident in his statutory declaration or to the delegate, but his mentioning it to the Tribunal, indicated the applicant was willing to “further embellish false claims in an attempt to strengthen his claims to be owed protection”.[39] The Tribunal also found the evidence of the applicant’s witnesses lacked credibility.[40]
[38] CB210, [88]
[39] CB210, [88]
[40] CB210, [90]
Although it rejected the applicant’s claims because it assigned no credibility to them, the Tribunal considered whether the applicant nevertheless faced a real risk of suffering significant harm if he were to return to Lebanon because he was a stateless Palestinian. By reference to country information it identified, the Tribunal concluded the applicant did not face a real risk of significant harm if returned to Lebanon because he was a stateless Palestinian.[41] The Tribunal also considered whether the applicant faced a real risk of significant harm because of the data breach. The Tribunal was not satisfied the applicant did face such a risk. That was so because the only fear the applicant claimed because of the data breach was that Hezbollah may have accessed the data, and the Tribunal did not accept the applicant’s claims that he faced any risk from Hezbollah.[42]
[41] CB212-213, [98]-[100]
[42] CB213-214, [103]

Grounds of review

The applicant, who is not legally represented, states two grounds of review:
1. The RRT made a jurisdictional error, which may include a breach of natural justice or procedure of fairness;
2. The Minister made an error and failed to consider a relevant matter.
In addition to the application, the applicant filed an affidavit (applicant’s first affidavit) in which he deposed as follows:
1. I entered Australia in 2005 as a dependent of my mother with a subclass 309 visa and I’m a stateless individual and currently in detention.
2. Now I’ve an Australian child of seven years old residing in . . .
3. On 1 July 2014 I was intentionally assaulted by . . . Detention officers to prevent me from attending the RRT hearing which left me with significant injuries.
4. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395”) the High Court held that, if the Refugee Review Tribunal required two homosexuals to live discreetly in order to avoid persecution in their country of nationality, it would have fallen into jurisdictional error.
5. In my case . . . the RRT made an error by requiring the applicant not to disclose his connection with Hezbollah militia in the first claim for protection visa and or his criminal history in Australia if he were to be returned to his country of birth.
The applicant also relied on an affidavit made on 20 February 2015 (applicant’s second affidavit). In that affidavit, the applicant deposes:
a)He is currently suffering from “multiple medical and intellectual conditions after the assault” at the detention centre in July 2014.
b)The Tribunal made a jurisdictional error by claiming the applicant had deliberately filed false information and by not accepting the applicant’s father was a senior member of Fatah.
c)The applicant was born a refugee and is “a member of a social group, a Palestinian refugee group in south Lebanon”.
d)The applicant will be significantly harmed or killed if he returns to Lebanon.
e)The applicant has a moral and ethical responsibility to care for his family and his daughter in Australia.
f)The applicant strongly believes he satisfies s.36(2)(a) [sic] of the Act.
g)The applicant would like the Court to hear his ex-partner “confirm the truth”.

Course of hearing

At the hearing before me, which took place by video conferencing link, the applicant identified documents he wished to tender. The applicant had not filed these documents or provided the documents to the Minister. The intended relevance of these documents was to show the applicant had been assaulted. That, in turn, was relevant to the applicant’s claiming that he felt lost and unable to focus at the hearing before the Tribunal. After the applicant explained to me the use he wished to make of the documents, the following exchange occurred:[43]
[43] T18.10-19.5
HIS HONOUR: . . . Now, what you have said to me before – and I just want you to confirm it again – is that you did not bring to the Tribunal’s attention two things. One, that you had been assaulted. Is that right?
THE INTERPRETER:   Correct.
HIS HONOUR:   And, secondly, you did not say anything to the Tribunal that you were unable to participate in the hearing because of any such assault.
THE INTERPRETER:   Correct.
HIS HONOUR:   And you say that you mentioned the incident – the assault, I should say – to your representative.
THE INTERPRETER:   I’m happy for ‑ ‑ ‑
HIS HONOUR:   No, no. I just want you to confirm whether my understanding is correct. And that is that you say that you brought to your representative’s attention that you had been assaulted.
SZVCN:   That’s correct.
THE INTERPRETER:   Yes.
HIS HONOUR:   And you brought that – you informed your representative of that before the Tribunal hearing.
THE INTERPRETER:   I showed him the pictures.
HIS HONOUR:   Yes. All right. And you say that you also informed your representative that you did not feel what – that you didn’t feel well enough to proceed. Is that right?
THE INTERPRETER:    I told him I feel I’m lost.
SZVCN:   And I don’t know – I’m not focusing properly. I’m ‑ ‑ ‑
THE INTERPRETER:   Yes.
HIS HONOUR:   All right. And you say that your lawyer said you should still proceed.
THE INTERPRETER:   Yes.

To avoid the risk of hearing being lost because of the applicant’s not having given advance notice of these claims, I decided to adopt the following course:[44]
So what I propose to do is to assume for the purposes of this application that what you have said did take place. If I find that notwithstanding that assumption, it doesn’t make any difference to whether your challenge to the Tribunal succeeds or not, then I will not have to determine whether what you have said is true or not. If – let me just finish. If on the other hand, I form the view that if what you say is true does or may make a difference to whether I conclude the Tribunal did not act according to law, I will make directions for the filing of evidence and set the matter down for a hearing for me to determine whether what you have said occurred between you and your lawyer is true. So for the purposes of today, whatever submissions you wish to make, you can make those submissions on the assumption that you were assaulted as you claim, that when you were at the hearing you felt lost and could not focus, that you told your lawyer before the commencement of the hearing that you had been assaulted, that you felt lost and you felt you could not focus, but that in response your lawyer said, “See how we go.”
[44] T20.10-20.20
The applicant also indicated he wished to tender four additional documents or groups of documents. I admitted the documents, subject to relevance, on the condition that the applicant would provide the documents to the Court after the hearing. The applicant provided the documents to the Court, and I have considered their relevance.
The first group of documents (exhibit A) are two newspaper articles. One reports on a claim of Islamic extremists having formed a gang at a detention centre. Attached to that newspaper article is a detainee complaint form written by the applicant. In that document, the applicant complains the report is incorrect and has been based on information that has been accessed due to breaches of privacy provisions. The second article also reports on a claim of radicalisation of detention centre detainees. In my opinion, these documents are not relevant to any issue I have to consider on the application for review that is before me.
The second document (exhibit B) is a letter from the Department addressed to “To whom it concerns” confirming that the applicant was affected by the unintentional access to personal information on the Department’s website on 31 January 2014, and that the applicant had been informed on 31 March 2014 by letter (not personally addressed), and verbally by the applicant’s case manager. This document is, in a sense, relevant because the applicant’s claims included a claim of significant harm based on the data breach. However, the Tribunal accepted there had been a data breach and, as I have already noted, the Tribunal considered that claim.
The third document (exhibit C) is a newspaper report of two guards at a detention centre having been stood down because of allegations by a detainee that he had been knocked down by them. Attached to the article are photographs showing injuries to the applicant. These documents are conditionally relevant, however, given the assumption on which I decided to deal with the applicant’s claims, namely that he was assaulted. If I find the assault is irrelevant to the Tribunal’s decision, the document would be irrelevant.
The fourth document (exhibit D) is a newspaper article reporting on persons with criminal convictions applying for protection visas together with a detainee complaint form prepared by the applicant and a response from Serco. The applicant complains that the report was based on information that placed the applicant at risk. These documents are not relevant to any issue that is before me.
In addition, the applicant referred to documents that he claimed were relevant which he received after the hearing before the Tribunal and which, therefore, the applicant did not put before the Tribunal. The applicant claimed the documents showed his father worked in Fatah. I indicated to the applicant that I did not wish to see those documents, but would assume he did possess the documents. I informed the applicant that the Tribunal could not be considered to have made any error by failing to consider documents that were not before it.

Approach to applicants’ claims

In these reasons for judgment, I will address the grounds stated in the application, the grounds stated in the affidavits the applicant has filed, and any additional grounds the applicant can reasonably be interpreted to have made during his oral submissions.

Grounds stated in application

The first ground stated in the application for review is a bald, unparticularised assertion that the Tribunal made a jurisdictional error which may have included a failure to accord procedural fairness. By itself this does not disclose any jurisdictional error; and the applicant made no submission in relation to this ground.
The second ground also discloses no jurisdictional error. The ground is presumably directed to the Minister’s decision under s.417 of the Act. Ignoring the question whether a challenge to the exercise of the Minister’s discretion under s.417 of the Act can be challenged on the basis that the Minister ignored relevant material,[45] the ground is lacking in any particularity and, for that reason, discloses no jurisdictional error by the Minister.
[45] See Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
The applicant did make a submission in relation to this ground. He submitted that “they addressed the decision without evening [sic] examining the evidence”, that “I have proved that I’m right”, that “[t]hey don’t have the proof to prove me wrong”, and that “I’m innocent until proven guilty”.[46] These submissions appear to be directed to the Tribunal. Assuming they are, I cannot accept them. The Tribunal addressed the applicant’s claims by reference to the material that was before it. The Tribunal was not bound to prove the applicant’s claims were wrong; its duty was to consider the applicant’s claims, and determine whether it was satisfied that those claims were true and, if true, whether that brought the applicant within s.36(2)(aa) of the Act.
[46] T37.5
If the submissions are directed to the Minister’s decision under s.417 of the Act, they cannot succeed because there is no evidence of the material that was provided to the Minister in support of the applicant’s application for intervention under s.417 of the Act.

Incapacity to participate in Tribunal hearing

Assuming the applicant was assaulted before he appeared at the hearing before the Tribunal, and assuming that, before the hearing the applicant informed his representative that he had been assaulted, that he felt lost and could not focus, is there anything that suggests that the Tribunal made any jurisdictional error, or that the decision it made should otherwise be quashed?
The applicant did not inform the Tribunal of the assault. Nor did the applicant inform the Tribunal that, because of the assault, he felt lost and had difficulty focusing. The Tribunal, however, did have before it psychological reports relating to the applicant. That led the Tribunal to consider whether the applicant had the capacity to participate effectively in the hearing.
As I have already noted, the Tribunal concluded the applicant was able to participate meaningfully in the hearing before the Tribunal, and he appeared to have been able to do the same during the interview with the delegate.[47] It was reasonably open to the Tribunal to so find; and, subject to what I say in the following two paragraphs, I am satisfied that, on the material before me, the applicant was able to participate meaningfully in the hearing. The Tribunal’s reasons set out in some detail the questions the Tribunal asked of the applicant, and the answers the applicant gave.[48] The Tribunal’s record in its reasons for decision of the questions and answers leaves me in no doubt that the applicant appeared to understand the questions asked of him, and was able to provide responsive answers to those questions.
[47] CB209, [86]
[48] CB197-201, [35]-[70]
It is conceivable that, even though there was nothing before the Tribunal that could reasonably have suggested the applicant was unable to participate meaningfully in the hearing, and even though I am satisfied that the evidence establishes the applicant did participate effectively at the hearing, the applicant’s sense of being lost and his inability to focus nevertheless rendered the appearance of meaningful participation illusory.[49] In the absence of medical or psychological evidence, however, that addresses the nature of the sense of loss and inability to focus which I assume the applicant experienced during the hearing, and the extent to which the experience of such sense of being lost and inability to focus impaired or could have impaired the applicant’s ability to participate meaningfully in the hearing, I am not prepared to find that, because of his sense of being lost and his inability to focus, the applicant did not participate meaningfully in the hearing before the Tribunal.
[49] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [41]
My not being prepared to so find is supported by applicant’s response to the Tribunal’s letter dated 7 July 2014, to which I have already referred, in which the Tribunal identified a number of inconsistencies in the applicant’s accounts. The applicant did not in the statutory declaration he made in response to the Tribunal’s letter say that, during the hearing before the Tribunal, the applicant felt lost and could not focus or that he did not or could not participate effectively at the hearing; and the applicant did not submit to me that, at the time he prepared that statutory declaration, the applicant sensed he was lost, and he could not focus.
This part of the applicant’s claims, therefore, fails.

Grounds stated in applicant’s first affidavit

The applicant submits the Tribunal made an error similar to the error the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs held the Tribunal made.[50] The applicant submits the Tribunal dealt with the applicant’s claims on the basis that the Tribunal required the applicant not to disclose his connection with Hezbollah or disclose his criminal history in Australia.
[50] [2003] HCA 71; (2003) 216 CLR 473
There is nothing in the Tribunal’s decision that shows the Tribunal expressly or impliedly dealt with the applicant’s case in that manner. Further, the Tribunal did not accept the applicant’s claims that he had any involvement with Hezbollah; and it formed no part of the applicant’s claims for protection that his having a criminal history in Australia exposed him to a real risk of significant harm if he were to return to Lebanon.

Grounds stated in applicant’s second affidavit

The first ground stated in the applicant’s second affidavit is that he is currently suffering from “multiple medical and intellectual conditions after the assault” at the detention centre in July 2014. That the applicant currently suffers from medical conditions cannot affect the lawfulness of the Tribunal’s decision.
The second ground on which the applicant relies in his second affidavit is that the Tribunal made a jurisdictional error by “claiming” the applicant had deliberately filed false information and by not accepting the applicant’s father was a senior member of Fatah. This ground goes no further than expressing disagreement with the Tribunal’s findings. This Court does not sit as a court of appeal to determine whether the Tribunal was correct or incorrect in its findings of fact. The Court’s jurisdiction is limited to determining whether the Tribunal made a jurisdictional error. The Tribunal would have made a jurisdictional error had it not been reasonably open to it to conclude that the documents the applicant supplied were false or that it was not satisfied the applicant’s father was a member, senior or otherwise, of Fatah. In my opinion, it was reasonably open to the Tribunal to make the findings that it did for the reasons it gave.
The third ground on which the applicant relies in his second affidavit is that he was born a refugee and is “a member of a social group, a Palestinian refugee group in south Lebanon”. That allegation goes to the merits of his claim for protection. The Court does not have jurisdiction to consider whether the applicant has or had a valid claim for protection. That was a matter for the Tribunal to consider and determine.
The fourth ground on which the applicant relies in his second affidavit is that the applicant will be significantly harmed or killed if he returns to Lebanon. That, too, goes to the merits of the applicant’s claims for protection which this Court has no jurisdiction to determine.
The fifth ground on which the applicant relies in his second affidavit is that the applicant has a moral and ethical responsibility to care for his family and his daughter in Australia. That submission, however true, is not relevant to whether the Tribunal made a jurisdictional error.
The sixth ground on which the applicant relies in his second affidavit is that the applicant believes that he satisfies s.36(2)(a) of the Act. Assuming the applicant intends to mean s.36(2)(aa) of the Act, whether or not the applicant satisfied the criterion contained in s.36(2)(aa) of the Act was a matter within the jurisdiction of the Tribunal, not of this Court.
The final ground stated in the applicant’s second affidavit is that the applicant requested that the Court hear the applicant’s ex-partner “confirm the truth”. The ground does not identify the matters about which the applicant’s partner would confirm the truth. Whatever those matters might be, the applicant’s partner’s ability to speak truthfully of them could not disclose any jurisdictional error by the Tribunal, given that the applicant’s partner did not give evidence before the Tribunal.

Submissions made at the hearing

At the hearing before me, the applicant made a number of submissions. First, the applicant took issue with the matters referred to in paragraph 13.1 of the Minister’s written submissions. That paragraph referred to the Tribunal’s not accepting the applicant’s explanation for not making in the initial protection application claims the applicant made in the second protection application. The applicant submitted he had asked the Tribunal to consider contacting the applicant’s lawyer. The applicant rhetorically asked whether the Tribunal can give an explanation for the Tribunal’s not accepting the applicant’s explanation without having contacted the applicant’s lawyer.[51] The submission appears to be that the Tribunal ought to have made enquiries of the applicant’s lawyer about the applicant’s claim that the lawyer advised the applicant not to include claims in his initial protection application. This does not disclose any jurisdictional error. It was for the applicant to provide evidence before the Tribunal.
[51] T31.40
Second, the applicant took issue with paragraph 13.2 of the Minister’s written submissions. In that paragraph, the Minister referred to the Tribunal’s findings in relation to the applicant’s mental health at paragraph 82 of the Tribunal’s reasons.[52] The applicant submitted to me, in effect, that it was not open to the Tribunal to accept, as it did, that the applicant’s mother was the victim of family violence and yet not accept it had an impact on the applicant’s mental state. The applicant referred to the report provided by a clinical psychologist dated 20 September 2010.[53]
[52] CB208
[53] T33.45
In dealing with this submission, it is necessary to be clear about what the Tribunal found. The Tribunal did not accept there was evidence to support the applicant’s claim that his mental health affected his ability to remember what happened to him in Lebanon; and the Tribunal gave little weight to the psychological reports on which the applicant relied in assessing the applicant’s credibility.[54] These findings were reasonably open to the Tribunal. That the applicant’s mother was subjected to domestic abuse did not compel, and could barely reasonably support, the conclusion that the applicant would have difficulties with his memory; and the psychological report on which the applicant relies does not refer to any memory difficulties.[55] The applicant’s submission, therefore, cannot be accepted.
[54] CB209, [86]
[55] CB157-164
Third, the applicant responded to paragraphs 13.3, 13.5, and 14.7 of the Minister’s written submissions. These paragraphs of the Minister’s submissions refer to the Tribunal’s findings about the reasons the applicant gave why documents were not provided to the Department or to the Tribunal as previously constituted,[56] to the Tribunal’s findings that the witnesses who supported the applicant were lacking in credibility,[57] and to the Tribunal’s not being satisfied the applicant faced a real risk of significant harm because of, among other things, the data breach.[58] The applicant challenged these findings, submitting the documents he provided were genuine. The applicant asked how did the Tribunal arrive at these conclusions, and whether the Tribunal in effect checked the authenticity of the documents by making enquiries with the relevant authorities.[59]
[56] CB209, [87]
[57] CB210, [90]-[92]
[58] CB213, [102]
[59] T34.40
It was reasonably open to the Tribunal not to accept the authenticity of the documents, or the credibility of the witnesses who supported the applicant. The matters on which the Tribunal relied included the applicant’s not having made in the initial protection application the claims the applicant made in the second protection application, the applicant’s not having reported to the psychologists matters on which the applicant relied in his second protection application, the applicant having at the hearing before the Tribunal added details to his claims which he had not included in his statutory declaration in support of his Protection visa application, and the date of the documents which the Tribunal did not accept to be authentic.
In addition, the applicant rhetorically asked how did the Tribunal arrive at its conclusion that the data breach would not affect his return to Lebanon.[60] The applicant relied on one of the two newspaper articles that are exhibit A. The applicant submitted that the photograph in one of reports is of him.[61] I do not accept the person photographed in the newspaper article is the applicant. As I have already noted, the applicant had completed a “Detainee Complaint Form” in relation to the article which refers to the potential risk the article had placed the applicant and other detainees. The complaint, however, does not assert that the report contained a photograph of the applicant. In any event, even if the photograph is that of the applicant, there is no evidence the applicant brought or attempted to bring this matter to the attention of the Tribunal. Given the applicant’s claims of risk of harm were based on his evidence about his involvement with Hezbollah – being evidence the Tribunal did not accept – it was reasonably open to the Tribunal not to be satisfied that the data breach exposed the applicant to a real risk of significant harm if he were to return to Lebanon.
[60] T35.25
[61] T36.5

Conclusion and disposition

The applicant has not succeeded on any of the grounds on which he relies for challenging the decision of the Tribunal. I propose, therefore, to order that the application be dismissed. I will also order that the Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate:

Date: 4 March 2016