VWCA v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 412

FEDERAL COURT OF AUSTRALIA

VWCA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 412

VWCA & Ors  v  Minister for Immigration and Multicultural and Indigenous Affairs

V27 of 2004

RYAN J
13 APRIL 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V27 of 2004

BETWEEN:	VWCA & ORS Applicants
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	13 APRIL 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicants pay the respondent’s costs, including any reserved costs, such costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V27 of 2004

BETWEEN:	VWCA & ORS Applicants
AND:	MINISTER FOR IMMIGRATION AD MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	13 APRIL 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. There is before the Court an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of a decision published on 28 November 2003 by the Refugee Review Tribunal (“the Tribunal”) whereby the Tribunal affirmed the decision of a delegate of the respondent Minister to refuse to grant the applicants protection (class XA) visas. The applicants claim writs of certiorari, prohibition and mandamus in respect of the Tribunal’s decision.

   Background

2. The principal applicant (“the applicant”), his wife and three children, who are the other applicants, claim to be citizens of Lebanon, who formerly resided in that country.  They arrived in Australia as visitors on 1 September 2000 on 12 month multiple entry visas.  A condition of the multiple entry visas was that the family had to depart after a 3 month stay in order to obtain a further 3 month stay on their return.  They travelled to New Zealand briefly on four occasions on 30 November 2000, 2 March 2001, 2 June 2001 and 8 August 2001.  On 9 November 2001 they applied to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) for protection (Class XA) visas.  On 28 May 2002, a delegate of the respondent refused their applications.  On 19 June 2002, the applicant and his family applied for a review by the Tribunal of the delegate’s decision.  On 28 November 2003, the Tribunal affirmed the decision not to grant protection visas to the applicant and his family.

   Legislation

3. Under s 65(1) of the Migration Act 1958 (Cth) (“the Act”) a visa may be granted only if the decision maker accepts that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”) or a non-citizen who is the spouse or a dependant of a non-citizen to whom Australia has protection obligations under the Convention and who holds a protection visa. “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Act to mean the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively. Further criteria for the grant of protection (class XA) visas, subclasses 785 and 866 respectively, are set out in Pts 785 and 866 of Sch 2 to the Migration Regulations 1994 (“the Regulations”).

   Protection obligations

4. Australia is a party to the Convention and, generally speaking, has protection obligations to persons who are refugees as defined in the Convention.  Article 1A(2) defines a refugee as any person who;

   ‘… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such a fear, is unwilling to return to it.’

5. The Tribunal outlined the various principles which have been held to govern the application of the definition of “refugee” in Article 1A(2) of the Convention, s 91R of the Act and the provisions of the Regulations governing the grant of protection (class XA) visas. No exception has been taken before this Court to the Tribunal’s formulation of what it saw to be the applicable principles.

   The Tribunal’s Decision

6. The Tribunal had before it the Department’s file, which included the protection visa application and the Department’s decision record.  The Tribunal also had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources, including the Tribunal’s file.  The applicant and the applicant’s wife gave oral evidence to the Tribunal on 13 January 2003 and 22 October 2003.  The Tribunal also had before it a document submitted by the applicants after the hearing which contained country information and other material including a translation of an interview with a former political prisoner in Syria downloaded from the Free Patriotic Movement of Lebanon website which names the applicant’s wife as the translator of the document.

7. The Tribunal described the applicant’s claim for a protection visa in these terms;

   ‘The applicant’s claim for a protection visa is based on his fears that if he returns to Lebanon he will be persecuted due to the influence on Lebanese and Syrian authorities of former business associates, in particular a Syrian national who wishes to harm him and his family. He also fears persecution due to his membership of the Free Patriotic Movement of Lebanon, his support for exiled former Prime Minister Michel Aoun and because of his political activities in Lebanon and subsequently in Australia on behalf of General Aoun and the Free Patriotic Movement of Lebanon.’

8. In considering the applicant’s claims, the Tribunal found that he and his wife were not credible witnesses.  The Tribunal accepted that the applicant was a Christian and a supporter of General Aoun and the Free Patriotic Movement of Lebanon.  However, it considered that the country information did not indicate that supporters of General Aoun faced a real chance of serious harm amounting to persecution.  Further, the Free Patriotic Movement of Lebanon was not a banned organisation and had participated openly in the electoral process in Lebanon.

9. The Tribunal found that the applicant had never had a political profile in Lebanon significant enough to attract to him the adverse interest of Lebanese authorities and had never been targeted by Lebanese authorities or by anyone else because of his political opinions.  The Tribunal rejected the genuineness of a letter purportedly from General Latief, General Aoun’s representative in Lebanon, which described the applicant as a “militant”.  It also found that the applicant had never been perceived by the Lebanese authorities or by anyone else as a “fervent” supporter of General Aoun.

10. The applicant claimed that he is at risk of persecution by Lebanese authorities in Lebanon due to the political influence of his former business partner, Mr Nehme, a Syrian national, and a business associate, Mr Hreich (a money lender). 

11. The Tribunal did not accept the claim that Mr Nehme had influence with the authorities in Lebanon or the Syrian Government or that he was in a position to use such influence to destroy the applicant’s business and ensure his downfall.  The Tribunal found that, even though Mr Nehme may have been aware of the applicant’s political background, he would not have been able to use it against the applicant to expose him to any adverse attention from the Lebanese authorities.  It further found that Mr Hreich was not in a position to influence Lebanese or Syrian authorities in Lebanon against the applicant and his family and that he had not done so.

12. Accordingly, the Tribunal concluded;

    ‘In this context, the Tribunal has considered the applicant’s business problems in Lebanon and notes its advice to the applicant that any problems the applicant may have experienced in Lebanon appeared to have resulted from a failed business relationship.  Also it notes that the applicant entered voluntarily his business relationship with Mr Nehme, whom he described in the second hearing as a friend at the time their business relationship commenced.  Given this and the Tribunal’s finding above that Mr Nehme did not have influence with Lebanese authorities, the Tribunal finds that any problems the applicant may have had with Mr Nehme resulted from a failed business relationship and nothing more.  Therefore it finds that such problems are not convention related.  The Tribunal does not accept that Mr Nehme was in a position to exert political or other influence on Lebanese authorities against the applicant.  It finds that any action he may have taken against the applicant was taken through normal channels and related exclusively to business problems between himself and the applicant.’

13. The Tribunal found that the applicant had fabricated evidence to the effect that he had been stopped at checkpoints in Lebanon and received adverse treatment at Mr Nehme’s instigation as a result of Mr Nehme’s influence with Lebanese and Syrian authorities. 

14. The Tribunal accepted that the applicant and his family had received threats, including death threats, as a result of the applicant’s failed business relationship but found that neither the applicant nor his family had suffered any physical harm after the threats had been made.

15. The Tribunal did not accept that the applicant’s wife had been under surveillance, and found that any routine harassment and intimidation which may have occurred was a result of the applicant’s business problems and was not Convention-related.

16. The Tribunal also found that any problems which the applicant’s lawyer may have experienced because of his representation of the applicant (including being assaulted by officials) related exclusively to the applicant’s business problems and were “criminal in nature and not Convention-related”.

17. The Tribunal did not accept that any political or other activities which the applicant had undertaken in Australia would cause problems with the authorities in Lebanon.

18. In the Tribunal’s view, if the applicant were to return to Lebanon and experience problems with the authorities (as a result of his conviction for financial offences), such treatment would not be for a Convention reason.  The applicant’s fears of such treatment were referable to his business difficulties and any potential liability for prosecution had arisen pursuant to criminal laws of general application.  Further, the Tribunal found that the applicant and his family could seek protection from the Lebanese authorities if they were targeted in any way by Mr Nehme.

19. Finally, the Tribunal considered that the applicant’s delay in lodging a protection visa application militated against any suggestion that he had been fleeing persecution in Lebanon and tended to indicate that he did not have a well-founded fear of persecution for a Convention reason at the time when he departed Lebanon.

    Applicant’s submissions

20. Counsel for the applicant submitted that the Tribunal had failed to deal with the claims of the applicant or had misunderstood the relationship between the threatened harm and the Convention because it had adopted a false dichotomy between “business difficulties” and Convention-related grounds.  That dichotomy, it was contended, caused the Tribunal to overlook the applicant’s claims that his business difficulties stemmed from conduct that was, in fact, motivated by Convention grounds.  The applicant claimed that his business had failed because of the approach taken by his business associates, Mr Nehme and Mr Hreich.  Once Mr Nehme became aware of the applicant’s Christianity and political beliefs based on support for General Aoun, he began to abuse the business relationship by refusing to pay the applicant and delaying payment for many months.

21. It was further submitted that an important element of the applicant’s claim was that the applicant’s former business associates had made false claims to the Lebanese authorities which had resulted in the applicant’s being tried in absentia and sentenced to two years imprisonment and fines in the event of his return to Lebanon. 

22. The applicant also submitted that the Tribunal had failed to question the motivation of the authorities responsible for the assault on the applicant’s lawyer.  The motivation for this “criminal conduct” was to be found in Convention reasons or, at least, represented a condonation by the authorities of a breach of the Convention by the applicant’s business associates.

23. The applicant submitted that the Tribunal had failed properly to consider the applicant’s claims by distinguishing between business difficulties, criminal conduct and the enforcement of the criminal law on the one hand and the Convention on the other.  In support of this submission, Counsel for the applicant relied on the following statement by Gleeson CJ in Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (2002) 210 CLR 1, at [31];

    ‘Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.’

    Respondent’s submissions

24. Counsel for the respondent submitted that the applicant’s contentions were misconceived and the Tribunal’s findings provided a conclusive answer to the applicant’s claim.  It was pointed out that, after rejecting the applicant’s claim that Mr Nehme had influence with the authorities in Lebanon, the Tribunal found that “even though Mr Nehme may have been aware of the applicant’s political background, he would not have been able to use this against the applicant in any adverse way with the Lebanese authorities.”

    In relation to the applicant’s business problems, the respondent emphasised the Tribunal’s findings that “problems that the applicant may have with Mr Nehme resulted from a failed business relationship and nothing more.  Therefore it finds that such problems are not Convention related” (emphasis added).  The respondent also drew attention to the Tribunal’s finding that “any action [Mr Nehme] may have taken against the applicant was taken through normal channels and related exclusively to business problems between himself and the applicant” (emphasis added).

25. In the respondent’s submission, contrary to the applicant’s contentions, the Tribunal had not erected a false dichotomy whereby business difficulties were regarded as mutually exclusive of Convention-related grounds.  Nor, it was contended, had the Tribunal assumed that the applicant’s business difficulties were incapable of being caused for a Convention-reason.

26. Rather, the respondent submitted, the Tribunal found as a fact that the applicant’s business problems were not the result of any influence exercised by Mr Nehme with the Lebanese authorities after Nehme became aware of the applicant’s support for General Aoun.  The business problems had not been caused by conduct that was motivated by a Convention reason.  Accordingly, on the facts of this particular case, the applicant’s problems arose solely from the failed business relationship and nothing more.

27. The Tribunal, according to the respondent, had therefore directly addressed the applicant’s claims that he feared persecution as a result of his former business partner having become aware of his political opinions.  It did not accept that Mr Nehme had influenced the authorities against the applicant for that reason. The respondent contended that the applicant’s problems had, accordingly, arisen entirely from a failed business relationship without any nexus to the Convention.

28. The respondent further submitted that the Tribunal’s findings about the difficulties experienced by the applicant’s lawyer and the problems which would be faced by the applicant if he were to return to Lebanon were a natural consequence of the Tribunal’s finding that the applicant’s problems in Lebanon had arisen entirely from a failed business relationship.

29. Finally, it was submitted that the Tribunal had also found that effective protection would be available from the Lebanese authorities in the event that Mr Nehme were to target the applicant or his family on their return.  This finding was said to provide an independent basis for the Tribunal’s decision.

    Resolution of the Issues

30. The dichotomy claimed by Counsel for the applicant to have been drawn by the Tribunal between “business difficulties” and Convention-related grounds is not one arising as a matter of law from the terms of the Convention.  In order to come within the definition in the Convention of a refugee, an applicant must have “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”  Persecution in that context may take many forms.  Thus in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Mason CJ pointed out, at 388;

    ‘The Convention and the Protocol do not define the words "being persecuted" in Art. 1A(2). The delegate was no doubt right in thinking that some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution. When the Convention makes provision for the recognition of the refugee status of a person who is, owing to a well-founded fear of being persecuted for a Convention reason, unwilling to return to the country of his nationality, the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.’  (original emphasis).

31. Persecution so understood may inhere in discriminatory treatment of an applicant in his or her business or professional life as well as in a myriad of other respects including imprisonment, physical mistreatment and the withholding of educational or other social services generally available to other members of the community from which the applicant comes.  The form which the discrimination takes may affect the degree of seriousness which it has to assume in order to amount to persecution in the Convention sense: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 where McHugh J indicated, at 18 [55];

    ‘Persecution involves discrimination that results in harm to an individual. But not all discrimination amounts to persecution. With the express or tacit approval of the government, for example, some employers may refuse to employ persons on grounds of race, religion or nationality. But discriminatory though such conduct may be, it may not amount to persecution. Other employment may be readily available. The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.’

1. However, it is not enough for an applicant to assert, or even establish, that he or she has been a victim of discrimination of the kind just described and fears a repetition of that type of discrimination if returned to his or her country of nationality.  It is also necessary for the applicant to demonstrate that the discriminatory treatment has been inflicted for reasons of his or her race, religion, nationality, membership of a particular social group or political opinion.  The categories of discriminatory conduct which may be inflicted for one or more of those reasons are not closed.  It would, therefore, be an error of law for the Tribunal to identify a particular form of discrimination as merely “business difficulties” and conclude from that identification alone that it had not been inflicted for a Convention-related reason.

2. However, that is not to say that it may not be legitimate for the Tribunal to consider, first, whether whatever happened to an applicant was inflicted, or occurred, for a Convention reason.  If that question be answered in the negative, it would be unnecessary to consider whether the particular form of discrimination or disadvantage presumptively visited upon the applicant amounted to persecution in the sense used in the Convention.

3. In my view, the Tribunal in the present case approached the question in just that way when it came to assess the potentiality of Mr Nehme, the applicant’s former business associate, to have been, or to be in the future, a “non-State persecutor” of the applicant. The relevant part of the Tribunal’s reasons is reproduced at [12] above.

4. As I pointed out to Counsel for the Minister during the course of argument, it may not have been entirely logical for the Tribunal to have concluded that, because the applicant and Mr Nehme had been on friendly terms when their business relationship commenced, Mr Nehme could never thereafter have persecuted the applicant because of the applicant’s Aounist political sympathies or his Christian beliefs.  However, the conclusion that the applicant’s difficulty with Mr Nehme “resulted from a failed business relationship and nothing more” (emphasis added) was one which it was open to the Tribunal to reach as a finding of fact.  For the Court to substitute its own view of the correct or preferable finding would be to trespass impermissibly into an adjudication on the merits of the application.

5. The same finding by the Tribunal also presents a barrier to the applicant’s succeeding on the second limb of his attack on the Tribunal’s reasoning. That was that the Tribunal had erected the erroneous principle that an applicant asserting a fear of persecution by “non-State persecutors” has to establish that the non-State persecutors have influence with the State authorities. It was said that the Tribunal had only dealt with Nehme’s ability to influence the Lebanese authorities when it concluded, in the passage reproduced at [12] above, that “The Tribunal does not accept that Mr Nehme was in a position to exert political or other influence on Lebanese authorities against the applicant.” It is true that a fear of persecution by a non-State persecutor may be well-founded without showing that the alleged persecutor has influence with the State authorities. That result may follow if the State authorities, for their own purposes, are likely to condone persecution of the applicant by the “non-State persecutor”, or are unable, through lack of resources or political will, to protect the applicant against such persecution. However, that question does not arise if, as here, it is found that any persecution by the “non-State persecutor” would not be for a Convention reason.

6. It will be clear from the immediately preceding observations that I do not consider that the inability of the State authorities to protect an applicant against a non-State persecutor needs to have a connection with a Convention reason.  Nor must the State authorities’ condonation of, or acquiescence in non-State persecution be for a Convention reason.  However, if the conclusion be reached that the non-State persecution is not, or would not be, for a Convention reason, it may become necessary to inquire whether the presumed reason or failure of the State authorities to protect the applicant from the persecution would, itself, be for a Convention reason.  An applicant may come within the definition of a refugee if the non-State persecutory conduct, which ex hypothesi was not, or would not be, for a Convention reason, was or would be acquiesced in, or condoned by, the State authorities for a Convention reason, eg their antipathy to the applicant’s religious beliefs or political opinions.  However, the Tribunal in the present case expressly declined to impute to the Lebanese authorities any animus against the applicant by reason either of his Aounist sympathies or his Christian beliefs.  It said, at p 29 of its reasons;

   ‘Based on this evidence, the Tribunal finds that the applicant has never had a significant political profile in Lebanon, including as a political “activist”, which would make him of adverse interest to Lebanese or Syrian authorities in Lebanon and that his political activities have never attracted adverse attention from them.  Therefore it finds also that the applicant has never been targeted by Lebanese authorities or by anyone else because of his political opinion.  In making these findings the Tribunal has taken into account the Christian religion of the applicant and applicant wife and the applicant’s claim that his political views are diametrically opposed to those of the Lebanese Government.  However given that the applicant has not claimed to have ever expressed his political views openly in Lebanon, or identified any high profile political activity he has ever engaged in, the Tribunal does not accept the claim that being both pro-General Aoun and Christian has given the applicant an adverse profile with Lebanese authorities.  In this regard it refers to relevant U.S. Government country information outlined above which indicates that that the Christian community in Lebanon is a significant and influential one – the country’s President is Christian and half the Deputies in the Lebanese Parliament are Christians.

   With regard to the claim that the applicant has been a “fervent” supporter of General Aoun, the Tribunal notes that when it informed him that his evidence did not support this claim, the applicant had stated that he was doing things carefully because he had a business.  Based on the applicant’s own evidence about his activities in support of General Aoun, and its finding about the applicant’s political profile, the Tribunal does not accept the applicant is, or ever has been, perceived by authorities in Lebanon or anyone else as a “fervent” supporter of General Aoun.’  (emphasis added)

7. I consider that the analysis undertaken in [32] to [37] above is consistent with the principle enunciated by Gleeson CJ in the passage from Minister for Immigration and Multicultural and Indigenous Affairs v Khawar (supra) which is reproduced at [23] above. See also the joint judgment of McHugh and Gummo JJ in Khawar where it is observed, at 29 [86];

   ‘Whilst the Tribunal appears to have treated the violence of non-State actors of which Ms Khawar complained as sufficiently severe to amount to "persecution", that classification is not determinative for several reasons. First, in any event, there would be the further requirement of a Convention reason; victims of domestic violence would meet the Convention definition only by showing more than the harm of which they complain.

   Secondly, and this is crucial for the basis propounded above, the persecution in question lies in the discriminatory inactivity of State authorities in not responding to the violence of non-State actors. Thus, the harm is related to, but not constituted by, the violence. It is for this reason that it has been unnecessary to consider whether the "accountability" theory mentioned in Haji Ibrahim and reflected in the Minister's submissions on this appeal should be accepted.’

8. However, it follows from Gleeson CJ’s acceptance that “the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state” will not avail an applicant if the Tribunal finds that neither the presumptive “criminals” nor the state were motivated by a Convention reason. I have already indicated at [37] above that the Tribunal expressly declined to impute such a motivation to the Lebanese State authorities. A similar finding was made in respect of Mr Nehme, the presumptive “criminal” in the analysis ventured by Gleeson CJ in Khawar. That finding is to be found in the passage from the Tribunal’s reasons reproduced at [12] above where it is recited;

   ‘… the Tribunal finds that any problems the applicant may have had with Mr Nehme resulted from a failed business relationship and nothing more… it finds that any action that [Mr Nehme] may have taken against the applicant was taken through normal channels and related exclusively to business problems between himself and the applicant.’(emphasis added)

9. The only references to Mr Hreich in the Tribunal’s reasons were;

   ‘The applicant claims that he is at risk of persecution from Lebanese authorities in Lebanon due to the political influence of his former business partner Mr Nehme, a Syrian national.  The Tribunal has considered whether or not Mr Nehme, and also Mr Hreich (the money lender), had influence in both the Lebanese and Syrian political systems which they could use against the applicant and his family.

   … …

   With regard to Mr Hreich, the Tribunal refers to the applicant wife’s evidence that she did not know if he had any connections with the Lebanese Government and its agencies.  Based on this evidence, the Tribunal finds that Mr Hreich was not in a position to influence Lebanese or Syrian authorities in Lebanon against the applicant and his family and that he did not do so.’

10. Those extracts make clear that the Tribunal did not regard Mr Herich’s motivation as requiring separate examination from that of Nehme.

11. To similar effect, the Tribunal made this finding at p 34 of its reasons;

    ‘The Tribunal has considered what would happen to the applicants if they returned to Lebanon for reasons other than their political activities.  In this regard it notes that the applicant has been convicted of financial offences in Lebanon, the applicant’s evidence that he will serve a two year goal term for this, the Tribunal’s advice to him that his offences appeared to relate to criminal matters and the applicant’s agreement with the Tribunal’s understanding that he had broken Lebanese law.  Based on this information, the Tribunal finds that if the applicant returns to Lebanon and experiences problems with the authorities there and is gaoled, such treatment will not be for any Convention reason.  With regard to his concerns about what will happen to him if he returns to Lebanon, including that he would not have access to justice and would be killed, the Tribunal finds there is no nexus between these fears and any Convention ground.  It finds also that these fears relate only to business difficulties and the applicant’s liabilities for prosecution pursuant to criminal laws of general application.  Therefore it finds that the essential and significant reason for his fear is not Convention-related.’

    Conclusion

12. Although the Tribunal in its reasons did not entirely separate persecution by non-State actors from persecution consisting of discriminatory inactivity of State authorities, it is clear that it bore steadily in mind the need for one or other of those forms of persecution to be motivated by a Convention reason.  As already indicated, it expressly negatived the requisite motivation for either species of persecution.  It therefore follows that the applicant’s attack on the Tribunal decision has failed.  The application must, accordingly, be dismissed with costs.

I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             13 April 2005

Counsel for the Applicants:	Mr R Niall with Mr M Belmar
Solicitor for the Applicants:	FCG Legal Pty Ltd
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	1 July 2004
Date of Judgment:	13 April 2005