SZVXU v Minister for Immigration

[2017] FCCA 2581

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVXU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2581

Catchwords:

MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal failed to consider relevant material – whether the Tribunal misapplied the relevant law as to internal relocation – whether the Tribunal breached s.424A of the Act – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424AA, 424A, 430, 476

Cases cited:

SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18
SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15
SZDXZv Minister for Immigration and Citizenship [2008] FCAFC 109 Minister for Immigration v SZNCR [2011] FCA 369

Applicant: SZVXU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3643 of 2014

Judgment of: Judge Nicholls

Hearing dates: 1 March 2017 and 9 March 2017

Date of Last Submission: 6 April 2017

Delivered at: Sydney

Delivered on: 31 October 2017

REPRESENTATION

Solicitors for the Applicant: Ms M Youssef of Mona Youssef & Associates

Solicitors for the Respondents: Ms H Musgrove of Sparke Helmore Lawyers

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 29 December 2014 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3643 of 2014

SZVXU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 December 2014, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 25 November 2014, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.

2. The following is in evidence before the Court:

   a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book – “CB”, “RE1”).

   b)The affidavit of Hailey Rae Musgrove made on 21 February 2017.

Background

1. The applicant is a citizen of Lebanon who arrived in Australia on 12 May 2013 as the holder of a sponsored family visitor visa (CB 97.9 to CB 98.1). He applied for a protection visa on 26 April 2013 (CB 1 to CB 52).

2. The delegate refused the application on 29 April 2014 (CB 92 to CB 127). The applicant applied to the Tribunal for review on 9 May 2014 (CB 128 to CB 134). He attended a hearing before the Tribunal on 12 November 2014. His nephew also gave evidence to the Tribunal on that date (CB 175 to CB 178). The Tribunal affirmed the delegate’s decision on 25 November 2014 (CB 231 to CB 246).

3. The applicant’s claims to fear harm if he were to return to Lebanon were that as a Sunni Muslim and a committed supporter of the Future Movement, he was opposed to the Syrian regime, Alawis and Hezbollah, and “his ambition” was to fight Syrians and Alawis in Tripoli ([5] and [7] at CB 234).

4. Further, the applicant feared harm because of an ongoing dispute between his family and the Hassoun family. In January 2013, his

   
   

   13-year-old cousin was attacked by a member of this family, and in one of the subsequent clashes between the families, a member of the Hassoun family was killed ([6] at CB 234).

5. When another member of the Hassoun family was killed in April 2014, the Hassoun family thought the applicant was the instigator of this killing.

6. The applicant provided documentary evidence to the Tribunal concerning the harm his family members had suffered in Lebanon.

The Tribunal

1. The Tribunal found that it was not satisfied that the applicant or members of his family had been targeted by the Hassoun family. The Tribunal also rejected the applicant’s claim that he had been specifically targeted (see [28] at CB 238 to [35] at CB 239 to CB 240).

2. The basis for the Tribunal’s finding was that the applicant had not provided any satisfactory evidence as to why he, or his family, were targeted, and that his evidence was “vague, confuse[d] and unpersuasive” ([36] at CB 240).

3. The Tribunal found that the applicant’s evidence concerning his

   
   

   13-year-old cousin was “vague, disjointed and unpersuasive”. It rejected the applicant’s claims as they were said to arise from this incident and its aftermath ([37] at CB 240).

4. The Tribunal also found that it was not satisfied that the Hassoun family had any ongoing conflict with the applicant’s family. The Tribunal found that there was not a real chance of serious harm from the Hassoun family because of the applicant’s membership of his family, or for any other convention reason ([44] – [45] at CB 241).

5. The Tribunal accepted that the applicant was a member of the Khodr El Masri Martyr Militia, and that he had engaged in armed clashes with Alawites in a neighbouring suburb ([46] at CB 242).

6. However, the Tribunal did not accept that he had any leadership role in these conflicts as he had claimed. The Tribunal found his profile to be no higher than a “militiaman or a ‘soldier’”. The Tribunal noted this was consistent with the applicant’s own evidence at the hearing ([46] at CB 242).

7. The Tribunal considered country information, and found that it was not satisfied the applicant faced a real chance of serious harm for reason of his opposition to Hezbollah or because of his involvement in sectarian clashes in Tripoli ([48] at CB 242 to CB 243).

8. The Tribunal noted that at the hearing, the applicant did not pursue the claim he had expressed earlier in relation to the Syrian regime. For the remainder, the Tribunal found, based on country information, that it was not satisfied that the Lebanese army had been “involved in harming current or former members of the applicant’s militia” ([49] at CB 243).

9. The Tribunal accepted the applicant’s claim that he had been critical of the Lebanese army for killing two sheikhs, one of whom was said to be his cousin. However, the Tribunal was not satisfied that the death of the applicant’s cousin, and his criticism of the Lebanese army, would result in him being targeted by the Lebanese army or pro-Syrian elements in the army ([50] at CB 243 to CB 244).

10. The Tribunal was not satisfied that the applicant would suffer serious or significant harm at the hands of Hezbollah, the Lebanese army,

    
    

    pro-Syrians or the Syrian regime ([50] at CB 243 to CB 244 to [51] at CB 244).

11. The Tribunal also considered a claim made by the applicant’s nephew during the hearing, that between April and August 2014, people whom he said were Alawis directed threats to him against his uncle (the applicant). The Tribunal did not accept this claim. It gave reasons for this ([53] at CB 244).

12. Having considered country information, the Tribunal was satisfied that the applicant would face serious harm by opposition militia forces, if the applicant were to return to his home neighbourhoods and continue to engage in armed sectarian violence in Tripoli ([54] at CB 244 to CB 245). Further, it found that he would suffer significant harm in his home area in Tripoli ([62] at CB 246).

13. Based on the applicant’s evidence, the Tribunal found that he was essentially concerned with the conflict in Tripoli, and further based on country information, that if he were to relocate to Beirut he would not engage in sectarian violence ([56] – [57] at CB 245).

14. The Tribunal found that if the applicant were to relocate to Beirut and expressed the same views in support of the militia as he had done in the past, there was no real chance he would suffer serious harm from “political adversaries or anyone else in Lebanon” ([58] at CB 245).

15. The Tribunal also considered the applicant’s circumstances and found that it would be reasonable and practicable for him to safely relocate to Beirut ([59] at CB 245 to [60] at CB 245 to CB 246). Further, that it would be reasonable to expect the applicant to relocate where there was no real risk of significant harm ([62] at CB 246).

16. The Tribunal affirmed the delegate’s decision on this basis.

The Application to the Court

1. The sole ground of the application before the Court is in the following terms:

   “The Tribunal has misunderstood my case and misapplied the law.”

2. The applicant first appeared before a Registrar of the Court in this matter on 19 February 2015. On that date, the Registrar made orders, amongst other things, giving the applicant the opportunity to file any amended application and evidence by way of affidavit. The applicant filed an affidavit of Mr Toufic Laba Sarkis made on 29 July 2015, annexing a transcript (“T”) of the hearing before the Tribunal. However, I note that at the final hearing the applicant did not seek to read this affidavit into evidence before the Court.

3. On 4 November 2015, the Registrar made orders, amongst other things, setting the matter down for final hearing on 1 March 2017, and providing the parties with the opportunity to file written submissions. The Minister filed written submissions on 22 February 2017. The applicant filed no written submissions.

4. At the hearing on 1 March 2017, a solicitor appeared for the applicant and sought an adjournment on the basis that the applicant had only recently provided instructions. The final hearing was adjourned to 9 March 2017.

5. On that day, the applicant and the Minister were represented by solicitors. The applicant (without leave) filed written submissions on the morning of the resumed hearing. At the hearing, the applicant sought leave to tender two documents that were attached to his written submissions. The documents appeared to be a translated medical certificate concerning the applicant’s daughter, and a letter purportedly from the Mayor of El-Bireh in Lebanon claiming to “certify” that the applicant had an old “disagreement with some people” from another area, and that there would some “risks” if he were to return to Lebanon. The Minister objected on the basis of relevance.

6. Leave was refused as both documents were not before the Tribunal (they post-date the Tribunal’s decision), and as submitted by the Minister’s solicitor, went to the merits of the Tribunal’s decision.

7. As mentioned above, the applicant filed written submissions on the morning of the resumed hearing without the leave of the Court. I gave the applicant’s solicitor the opportunity to speak to, and explain those submissions.

The Grounds of the Application

1. It is convenient to note the terms of the applicant’s ground (see [25] above). No application was made to amend that ground.

2. The ground makes two broad assertions. First, that the Tribunal misunderstood the applicant’s claims. Second, that the Tribunal misapplied the law. In the absence of any particularity whatsoever, it is difficult to see how the applicant’s ground could be made out.

3. At best, the explanation that was proffered by the applicant’s solicitor (except for the issue of the corroborative documents, see further below), appeared to be a challenge to findings of fact made by the Tribunal.

4. Nor on any view of the evidence, can I see that either of these assertions reveal jurisdictional error in the Tribunal’s decision. On the evidence, the Tribunal considered in detail each of the claims as variously made by the applicant during the course of the consideration of his protection visa application, and the review by the Tribunal of that decision.

5. There is nothing to show that the Tribunal misunderstood those claims, or any aspect of them. The Tribunal’s findings of fact were reasonably open to it on the material before it. The reasons that the Tribunal gave for making those findings of fact were probative of the material before it. Nor can I see that the Tribunal misapplied the law.

6. I agree with the Minister’s first written submissions of 22 February 2017, that the Tribunal’s application of the relevant law to the matter of internal relocation complied with relevant authority (SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18, SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51 and Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 and see

   
   

   [23] – [28] of the Minister’s written submissions of 22 February 2017). The Tribunal considered both the reasonableness and practicability of the applicant’s relocation.

7. I also considered whether any error could be said to arise from the Tribunal’s various references as to what the applicant said at the interview with the delegate. Such information of course does not fall within any of the exceptions in s.424A(3) of the Act, to the obligation in s.424A(1) of the Act (see [29] at CB 238, [34] at CB 239, [41] at CB 240, [48] at CB 242 and [57] at CB 245).

8. There is no evidence that the Tribunal listened to any recording of the interview with the delegate. Equally, it cannot be said conclusively, that the Tribunal took what the applicant said at the interview from what was reported in the delegate’s decision record, nor that that decision record was given to the Tribunal for the purposes of the review.

9. However, at each part of the Tribunal’s decision record where such references are made, this is followed by what the applicant said at the hearing. The following therefore can be said.

10. First, inconsistency or gaps in the applicant’s evidence is not “information” of the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190).

11. Second, what the applicant reportedly told the delegate, as recorded by the Tribunal, did not of itself constitute in its terms a “rejection, denial or undermining” of the applicant’s claims to fear harm. In this light, this also can be said not to be “information” for the purposes of s.424A(1) of the Act (SZBYR at [17]).

12. Third, as set out above at [26], the applicant filed in these proceedings the affidavit of Mr Toufic Laba Sarkis of 29 July 2015. At the hearing, the Court specifically asked the applicant’s solicitor if the applicant sought to rely on, and formally read, that affidavit into evidence. The applicant (through his solicitor), elected not to do so.

13. In this circumstance, the only evidence before the Court of what occurred at the hearing are the Tribunal’s references in its decision record. These reveal, relevantly, that what the applicant told the delegate at the interview, was discussed at the Tribunal hearing, such that it cannot be said that the Tribunal failed to discharge its obligation pursuant to s.424A(1) of the Act by use of s.424AA of the Act.

14. Although not in evidence, and therefore not a basis for the finding expressed at [44] above, the applicant’s transcript of the Tribunal hearing does not provide any basis to question that finding. In fact, it is supportive as follows (T29 at line 3 to line 8):

    “[Member]: You did tell the Delegate at the interview how long before you came to Australia this happened so I expect you to remember because it is not that long ago. You came here in February or March 2013 can you just think back and see how long before that your departure from Lebanon that might have happened?

    [Applicant]: Maybe 4, 5 months, 3 I swear to God I can’t remember.”

15. See further at T39 line 2 to T40 line 3 as follows (and see generally at T41 to T42):

    “[Member]: That’s fine. I have some information about what is going on with the Hassoun family in Tripoli. This information includes information that you provided to the Department. According to the information that I have Hassoun family is in conflict Al Jarad, Othman and Al Qurhani families. This is ongoing so it happens, it stops. You need to wait for me to finish before you can respond. There is no information before me to suggest that the Hassoun family has a problem with the Merheb family. However there is a piece of information that you provided to the Department. According to that information there was an incident that happened in April 2012, sorry 2013, that’s approximately a month after you came to Australia, and this incident involved the killing of a man called Yahya Hassoun and that is the only context in which the name of the Merheb family comes up. However the incidence of this killing was attributed to Jundallah, the group named Jundallah. Hassoun family said that they were responsible and they wanted the killer from that group to be handed over. However it appears that the person that was involved in the conflict with Yahya Hassoun, his name was Othman Merheb, and he was the son of one of the military commanders of Jundallah. As a result of this Hassoun family came out saying that we are not interested in any group in particular. We are only interested in the individual who is responsible for the killing of the member of the family. It does not appear that the Hassoun family are interested in you or at a level that they want to pursue or kill you. Do you want to say something now?”

The First Written Submissions

1. In relation to the applicant’s first written submissions filed on 9 March 2017, [1.1] at page 1 to [1.25] at page 6, these are no more than a recitation of claimed events in Lebanon, including events that are said to have occurred after the Tribunal decision. In all, these submissions misunderstand the nature of the scope of judicial review of a Tribunal decision. They seek impermissible merits review.

2. Further, [1.1] at page 6 to [2.4] at page 9 are, in essence, submissions as to why the applicant could not safely or reasonably relocate to Beirut. Again, this seeks impermissible merits review.

The Arguments Raised at the Hearing

1. During the course of oral submissions by the applicant’s solicitor at the hearing, one matter arose that required the opportunity for further explanation. Given the general nature of the ground before the Court, it was possible that the matter that arose, could be said to particularise one aspect of the general complaint expressed in the sole ground of review.

2. I gave the parties the opportunity to make further written submissions to explain the argument. The Minister filed further written submissions on 23 March 2017, and the applicant filed further written submissions on 6 April 2017.

3. Before the Court, the complaint appeared to be that the Tribunal had failed to consider an aspect of the applicant’s claims in relation to the issue of relocation. This was further explained as follows.

4. In considering whether there was a real risk of serious or significant harm for the applicant in relocating to Beirut, the Tribunal did not consider relevant country information provided to it by the applicant. At best, I understood that the country information was said to be corroborative of his objections to relocation.

5. The applicant has not now identified the entire range of country information he said he provided. However, the following are documents in evidence before the Court.

6. First, Mr Toufic Laba Sarkis provided the following media articles to the delegate on 18 October 2013 (CB 64 to CB 82 and see [3] of the Minister’s further written submissions):

   “a) ‘The real story of what happened in Abu Samra night’, 14 April 2013 (CB 65);

   b) ‘Tense funeral for Abdul Wahed, Merheb in al-Bireh, Daher calls for executing killers’, 22 May 2012 (CB 70); and

   c) ‘Man killed in grenade explosion in Tripoli’, 29 September 2013 (CB 82).”

   [“The first set of documents”.]

1. In his further written submissions to the Court, the Minister submits that these were provided by the “applicant’s representative” ([3] of the Minister’s further written submissions). The applicant’s further written submissions take issue with this, and say that the applicant was not legally represented at the time, and it was the applicant himself who provided the documents ([1] of the applicant’s further written submissions).

2. The evidence before the Court supports the Minister’s submission. In support of his protection visa application, the applicant made a declaration that was witnessed by Mr Toufic Laba Sarkis (CB 27).

3. Although the applicant says that he did not receive assistance in filling out the visa application form, the cardholder who paid the application fee is “Maureen Laba Sarkis” (CB 9).

4. Mr Toufic Laba Sarkis was appointed as the applicant’s “authorised recipient” for the purposes of the protection visa application (CB 48 to CB 49). All communication from the Minister’s Department, properly in the circumstances, was sent to Mr Toufic Laba Sarkis (CB 53 to CB 60 and CB 92).

5. Mr Toufic Laba Sarkis is not a legal practitioner in Australia. He is not on the register of registered migration agents. I can take judicial note that Mr Toufic Laba Sarkis appears to be actively involved (in whatever capacity), in a number of visa application cases that ultimately come before this Court.

6. The reason the applicant now takes issue with the Minister’s description of the relationship between the applicant and Mr Toufic Laba Sarkis is not clear. What is clear, is that even in an unregistered capacity, Mr Toufic Laba Sarkis plainly took an active role in the applicant’s case, including before the Tribunal. The Minister was correct to describe him as the “applicant’s representative”. Albeit, Mr Toufic Laba Sarkis was not a registered migration agent. In any event, he made submissions on behalf of the applicant.

7. Second, at the Tribunal hearing on 12 November 2014, the applicant submitted the following country information in the form of media articles (see [5] of the Minister’s further written submissions):

   “a) ‘Sniper fire wounds two in Tripoli’, 12 October 2013 (CB 182);

   b) Untranslated document (CB 184);

   c) Untranslated document (CB 187);

   d) ‘Tripoli tensions, clashes shift to Abi Samra neighbourhood’, 15 April 2013 (CB 188);

   e) ‘From Tripoli to Saida, a Map of Lebanon’s battlegrounds’, 24 June 2013 (CB 192);

   f) ‘Despite apparent calm tension still evidence in Tripoli’, 25 June 2011 (CB 196);

   g) ‘6 dead as Tripoli clashes resume over another attack on Jabal Mohsen resident’, 30 November 2013 (CB 199).”

   [“The second set of documents”.]

8. It is important to note the following. One, the Tribunal is not required to set out in its decision record, all the evidence before it. Section 430 of the Act requires the Tribunal to set out in its decision record the evidence on which its findings of fact are based.

9. Two, the Tribunal is required to address all of an applicant’s claims, and aspects of those claims (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (“Applicant WAEE”),  Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). The applicant has not submitted that the media articles contained additional claims, but rather that they corroborated his claim that it was unsafe to relocate to Beirut.

10. Three, the Tribunal is required to consider an applicant’s objections to relocation (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). However in the current case, the applicant has not asserted that the media reports contained additional objections, but rather, that they supported the applicant’s claim that he could not safely relocate.

11. Four, the weight to be assigned to country information is for the Tribunal to determine in the proper exercise of its jurisdiction (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 and SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15). In that context, there is a difference between the Tribunal not considering a piece of country information, and assessing that the country information does not support an applicant’s contention.

12. Five, merely “listing” a piece of information in its decision record, does not, of itself, mean the Tribunal gave it active consideration.

13. While the applicant’s further written submissions make reference, in general, to the Tribunal’s failure to consider the country information, only a number of these media reports set out above are specifically referred to in his written submissions.

14. In relation to the first set of documents, the Tribunal noted in its decision record that the applicant had submitted these documents in support of his application for review ([9] at CB 235).

15. These reports concerned the killing of two sheikhs (one of whom was said to be the applicant’s cousin), and the killing of a member of the Hassoun family.

16. Six, the second set of documents reported on events in Tripoli although there are various references to Beirut (see further below). The other two documents were untranslated.

17. The applicant now submits that he does not dispute that the Tribunal had regard to the second set of documents. The complaint is that it did not consider these documents in its analysis. As to some of the documents submitted at the hearing, the Tribunal made no reference to them at all.

18. It is to be remembered that, as set out above, the Tribunal did not reject all of the applicant’s claims as not providing a basis to fear harm.

19. The Tribunal did not accept the applicant’s claims concerning the Hassoun family, or his opposition to Hezbollah and the Lebanese army, would lead to serious or significant harm in his home area in Tripoli.

20. However, the Tribunal did accept that there was a real chance of harm in his local area by opposing militia forces. To the extent that the applicant now complains that the Tribunal did not consider, or did not refer to country information in relation to that matter, then it does not assist the applicant, as the Tribunal found favourably to him on that issue.

21. The Tribunal subsequently found that the applicant could safely relocate to Beirut. It is therefore in the context of this finding, and the finding that he would not face harm in his local area for reason of the Hassoun family or the Lebanese army, that the applicant’s argument must now be considered.

22. The applicant’s further written submissions provided after the Minister’s further written submissions, and drafted in response to those submissions, do not engage the following critical points, even though specific reference is made to them by the Minister in his submissions.

23. First, the Tribunal did make specific reference to, and did consider the first set of documents. The Tribunal acknowledged these were in evidence before the delegate (see the heading “Evidence before the Department” (CB 235.3)). The documents concerned a leader of the Hassoun family, events that occurred on 14 April 2013 in a part of Tripoli, and the death of the two sheikhs in 2013 ([9] at CB 235).

24. The Tribunal recorded that the applicant provided further evidence and submissions to the delegate which included the events which were the subject of these documents ([11] at CB 235 to [17] at CB 234).

25. At [2] of his further written submissions, the applicant refers to the Minister’s submissions at [7]. The Minister’s submissions at [7] referred to both the first and second set of documents.

26. The media report referred to in the applicant’s further written submissions (at [2]) is reproduced at Court Book page 192 to 195. It is plainly document “(e)” in that list (see the Minister’s reference at [5] of his further written submissions). And it is plainly one of the seven documents submitted at the Tribunal hearing, not one of the three given to the delegate.

27. The documents submitted at the hearing fall into two categories. Those the Tribunal specifically referred to in its decision record, and those to which the Tribunal did not.

28. The Tribunal’s decision record makes specific reference to what it put to the applicant at the hearing. This includes one of the first set of documents that referred to the conflict between his family and the Hassoun family ([42] at CB 241). The Tribunal’s reference was also to “the country information” before it, relating to that issue. On a fair reading, this would include all of the country information submitted by the applicant on this issue.

29. The Tribunal’s omission of any specific reference to these documents in the setting out of the subsequent findings, does not provide a sufficient basis to say it did not consider these documents. In any event, the Tribunal’s reference to these documents was placed under the heading of “Analysis of reasons and findings” (CB 238.1). The Tribunal’s subsequent findings on this issue, were derived from the analysis of all the country information before it, including what the applicant had submitted (see also footnote 1 at CB 241 which makes specific reference to these documents).

30. As to the remainder of the documents, the following is of relevance.

31. First, and as set out above, in relation to the documents referring to the issue of sectarian violence, the Tribunal’s omission to make specific reference to any of the applicant’s documents does not assist him now, to the extent that they refer to sectarian violence in Tripoli. The Tribunal accepted the applicant’s claims in this regard.

32. Second, what remains are the references in those documents to sectarian violence in Beirut. The applicant now identifies the document “From Tripoli to Saida, a Map of Lebanon’s battleground” (CB 192 to CB 195).

33. Third, what the applicant is correct to say is that the Tribunal did not specifically refer to this document, and others submitted at the hearing, relevant to this issue in its consideration of “internal relocation”. The applicant now submits it was “overlooked”, and further, that the Court should draw an inference “that violence in Tripoli is also connected to the violence in Beirut and it would not be safe for the [a]pplicant to return” ([2] of the applicant’s further written submissions).

34. However it is not for the Court to consider the country information, and draw inferences with a view to substituting its own findings of fact for those of the Tribunal. That is a call for impermissible merits review.

35. It may be that the applicant makes this submission for the limited purpose of arguing the Tribunal’s failure to expressly refer to this document (and to an extent other documents), meant that the exercise of its jurisdiction miscarried because its failure to do so meant it had not considered all relevant information. That is, all relevant information in relation to the applicant’s objection to relocation. However, it is the case, as the Minister submits, that it is not necessary for the Tribunal to refer to every piece of evidence before it in its decision record (Applicant WAEE at [46]).

36. As the Minister submits, it is necessary for the applicant to demonstrate on the balance of probabilities that the Tribunal did not consider the evidence in issue (SZDXZv Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] and Minister for Immigration v SZNCR [2011] FCA 369 at [50] – [53]).

37. The Tribunal specifically raised the issue of sectarian violence in Tripoli and outside of Tripoli at the hearing with the applicant ([55] at CB 245). This was in the context of its finding that there was a real chance of serious harm from sectarian violence by opposing militias if the applicant were to return to his neighbourhoods in Tripoli ([54] at CB 244 to CB 245).

38. The Tribunal made reference to country information before it on the issue in question. In considering the specific issue of sectarian violence in the context of relocation, the Tribunal concluded ([56] at CB 245):

    “The country information before the Tribunal does not suggest that sectarian violence engulfing Bab al-Tabbaneh and Jabal Mohsen [the applicant’s local neighbourhoods] has in any way spread to Beirut.”

39. At its highest, the applicant’s document on his own submissions now, is no more than the author’s supposition that sectarian violence had spread to Beirut. To succeed in his argument before the Court, the applicant would need to show, on balance, that the Tribunal’s failure to expressly refer to the applicant’s documents gives rise to a reasonable inference that the Tribunal did not take into account the applicant’s media reports and, that this meant that it did not fulfil its obligation to properly consider the review.

40. The inference that the applicant now asks the Court to draw from the media report (“From Tripoli to Saida, a Map of Lebanon’s battlegrounds”), is an inference about the balance and weighing of country information. The inference that the applicant needs to persuade the Court so as to succeed is that there is a reasonable inference that the Tribunal overlooked a critical piece of evidence that would have led to a different outcome.

41. In circumstances where the Tribunal made explicit reference to country information before it relevant to the issue under consideration, I do not accept that a reasonable inference can be drawn that the Tribunal failed to take the specific media article(s) into account. For the Court to evaluate the applicant’s media report, and draw an inference that sectarian violence had spread to Beirut, would be an exercise in merits review.

Conclusion

1. In all, the applicant’s ground is not made out. His subsequent argument raised at the hearing also does not reveal jurisdictional error. Therefore it is appropriate to dismiss the application. I will make that order.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  31 October 2017