Wzaum v Minister for Immigration

[2015] FCCA 2066

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAUM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2066

Catchwords:
MIGRATION – Judicial review – citizen of Lebanon – alleged persecution arising from alleged conversion from Sunni to Shia Islam – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) and 36(2)(aa), 425, 474, 476

Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407
Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALR 347; (1994) 34 ALD 347
SZLEX v Minister for Immigration & Anor [2007] FMCA 209
SZLSP v Minister for Immigration & Citizenship [2012] FCA 451; (2012) 127 ALD 49
WZATH v Minister for Immigration & Anor [2014] FCCA 612
WZATH v Minister for Immigration & Border Protection [2014] FCA 969

Applicant: WZAUM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 230 of 2014

Judgment of: Judge Antoni Lucev

Hearing date: 29 July 2015

Date of Last Submission: 29 July 2015

Delivered at: Perth

Delivered on: 6 August 2015

REPRESENTATION

For the Applicant: No appearance

Counsel for the First Respondent: Mr B Dube

For the Second Respondent: Submitting appearance, save as to costs.

Solicitors for the Respondents: Sparke Helmore

ORDERS (Orders made on 29 July 2015)

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

2. The application be dismissed.

3. Reasons for Judgment will be published electronically from Chambers at a later date.

4. The applicant pay the first respondent’s costs in the sum of $3416 by 12 August 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 230 of 2014

WZAUM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, previously the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively). The Tribunal Decision appears at Court Book (“CB”) 141-146. The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.

2. In circumstances which are explained further below, see [3(t)] below, the applicant did not appear at the hearing of this matter on 29 July 2015. The Court, having read the Judicial Review Application and the Applicant’s Affidavit, the Response by the Minister, and the Minister’s Outline of Submissions, and having satisfied itself that the Judicial Review Application ought to be dismissed, made orders as follows:

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

   2.The application be dismissed.

   3.Reasons for Judgment will be published electronically from Chambers at a later date.

   4.The applicant pay the first respondent’s costs in the sum of $3416 by 12 August 2015.

   The following are the Reasons for Judgment referred to in order 3 above.

Basic factual and procedural background

1. The basic factual and procedural background is as follows:

   a)the applicant was born in Lebanon on 10 April 1989, is ethnically Arab and religiously Muslim: CB 22;

   b)the applicant first arrived in Australia on a student visa (“Student Visa”) on 16 November 2011: CB 23 or 16 December 2011: CB 142 at [4];

   c)the applicant returned to Lebanon on 21 February 2012 and came back to Australia on 9 March 2012: CB 142 at [4];

   d)in December 2012 a non-compliance notice was issued in relation to the Student Visa: CB 142 at [4];

   e)in January 2013 the Student Visa was cancelled because the applicant was not attending his course of study: CB 142 at [4];

   f)the decision to cancel the Student Visa was affirmed within the Department, and the Tribunal had no jurisdiction to consider the application for review, which was finalised in December 2013: CB 142 at [4];

   g)the applicant was issued with bridging visas, including two on departure grounds, in February 2014, and his last bridging visa was cancelled on 27 February 2014 because he was working in breach of its conditions: CB 142 at [4];

   h)from 27 February 2014 the applicant has been in immigration detention: CB 142 at [4];

   i)the applicant applied for the Protection Visa on 10 March 2014: CB 1-36 and CB 142 at [4];

   j)the applicant claimed that he was fearful of being killed if he returned to Lebanon because he changed from being a Sunni Muslim to a Shia Muslim. He stated that he feared being harmed by his family, the ‘Sunni Akkai people’, ‘Tripoly Sunni people’ and Sunni Muslims in general: CB 28-29;

   k)the applicant was invited to attend an interview with the Delegate on 4 April 2014: CB 93-95;

   l)on 14 May 2014 the Delegate refused the applicant’s Protection Visa application: CB 97-114;

   m)on 22 May 2014 the applicant lodged an application for review of the Delegate’s Decision by the Tribunal: CB 115-121;

   n)the Tribunal invited the applicant to a hearing pursuant to s.425 of the Migration Act: CB 127-128. On 17 June 2014 the applicant attended and gave evidence before the Tribunal and presented arguments in support of his Protection Visa application: CB 131-133;

   o)at the end of the Tribunal hearing the applicant asked for further time to provide a document from Lebanon which he claimed proved that his father had disowned him. The Tribunal noted that the applicant had been given two weeks after the April 2014 interview with the Delegate to provide such a document, but it had not been provided. The Tribunal allowed a further week for the applicant to submit the document: CB 133 and CB 143 at [6]. The applicant sought a further extension on 23 June 2014, and the Tribunal agreed to extend the deadline for submission of the document to 25 June 2014: CB 134 and CB 143 at [6]. The document for which the extension was sought was not provided to the Tribunal either within the extended time allowed, or at all: CB 143 at [6];

   p)on 26 June 2014 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant a Protection Visa: CB 146 at [20]. The Tribunal Decision is summarised in more detail below: see [4]-[9] below;

   q)on 17 July 2014 the applicant filed the Judicial Review Application, together with the grounds for review, which are set out below: see [10] below, and in support thereof filed an affidavit dated and filed 17 July 2014 attaching a copy of the Tribunal Decision;

   r)on 15 August 2014 the Minister filed a Response to the effect that the Judicial Review Application did not establish any jurisdictional error in the Tribunal Decision and that the Judicial Review Application should be dismissed;

   s)a Registrar of the Court made orders and directions on 1 October 2014 permitting the applicant to file and serve an amended Judicial Review Application or any “affidavit containing additional evidence (including any transcript of a tribunal hearing)” by 19 November 2014 and written submissions 14 days prior to the hearing by the Court which was listed for 29 July 2015. Similar orders (but with different dates) were made in relation to affidavit evidence and submissions to be filed by the Minister. The applicant did not file any additional affidavit evidence or any submissions. The Minister filed submissions on 22 July 2015; and

   t)on 29 July 2015 the matter was listed for hearing at 2.15pm. Through the Perth Registry of the Court the presiding Judge’s Chambers were advised early in the afternoon of 29 July 2015 that an officer of the Department of Immigration and Border Protection (“Department”) had advised that the applicant did not want to attend the Court hearing and was refusing to leave the Yongah Hill Immigration Detention Centre. When the matter was called at 2.15pm on 29 July 2015 there was no appearance for the applicant. The presiding Judge explained to Counsel for the Minister the advice that had been received by Chambers through the Perth Registry. Counsel for the Minister indicated that his instructions were to the same effect. In those circumstances, the Court determined that the matter should proceed, and the Court made the orders set out at [2] above.

Tribunal Decision

1. In the Tribunal Decision the Tribunal set out the background in similar terms to that set out above: CB 142-143 at [1]-[6], and then found that:

   a)there were serious concerns about the overall credibility of the applicant, and his account of the circumstances relating to his claims to fear returning to Lebanon: CB 143 at [9];

   b)the applicant was unable to provide a persuasive or credible account of the process he underwent in a “change of faith” with “profound consequences” given the “highly sectarian nature of Lebanese society” in converting from the Sunni branch of Islam to the Shia branch or how or why his decision to convert was reached: CB 143-144 at [10];

   c)the applicant was unable to explain why he preferred the Shia interpretation of Islam compared to the Sunni interpretation of Islam, and how he came to change his view on which interpretation was correct, or “why any of these doctrinal or ritual differences meant so much to him that he was prepared to risk rejection by his family and community in order to convert”: CB 144 at [10];

   d)the applicant’s explanation of his conversion process was “extremely vague” and his evidence indicated that he “did little to explore the Shia faith after he first thought about converting and he does not appear to have engaged with the Shia community to any significant extent, if at all, apart from having some Shia friends” and, therefore, the Tribunal was not persuaded that he “really does consider himself to be a Shia Muslim”: CB 144 at [11];

   e)the “delay of two years between the events which he claims give rise to his fear of harm in Lebanon and his lodging” his Protection Visa application was not adequately explained, which led the Tribunal to conclude that the delay was “inconsistent with the existence of a genuine fear of serious or significant harm in Lebanon”: CB 144-145 at [12]; and

   f)the fact that the applicant did not mention to the Department in early 2014 his religious conversion, or that he feared harm due to his religious conversion, when he was facing the prospect of removal from Australia, was inconsistent with his claim to fear serious or significant harm were he to return to Lebanon, which led the Tribunal to consider that his claims are untrue: CB 145 at [13].

2. On the basis of the above findings the Tribunal did not accept that the applicant:

   a)had converted to Shia Islam;

   b)had told his father that he had converted to Shia Islam; or

   c)faces harm of any kind in Lebanon from:

   i)his family;

   ii)the Sunni community; or

   iii)any other source: CB 145 at [14].

3. The Tribunal was therefore not satisfied that the applicant satisfied the criterion set out in s.36(2)(a) of the Migration Act: CB 144 at [16].

4. On the basis of its findings the Tribunal did not accept that:

   a)the applicant changed his religion;

   b)the applicant was at risk of significant harm in Lebanon due to his change of religion; or

   c)the risk of the applicant being harmed as a result of general insecurity and violence in Lebanon amounted to a real risk, and that any risk of harm that arises as a result of general insecurity and violence in Lebanon is the same as that faced by the population generally, and is not a risk by the applicant personally,

   such that the Tribunal was not satisfied that the applicant satisfied the complementary protection criterion set out in s.36(2)(aa) of the Migration Act: CB 146 at [18].

5. In making findings in relation to:

   a)the “highly sectarian nature of Lebanese society”: CB 143 at [10]; and

   b)the level of risk associated with the general insecurity and violence in Lebanon, and the associated level of political and sectarian violence: CB 146 at [18],

   the Tribunal relied upon a very recent Department of Foreign Affairs and Trade Country Report on Lebanon (“DFAT Country Report”) published on 25 February 2014: CB 143 at [10] footnote 2 and CB 146 at [18] footnote 4.

6. Having regard to its findings in relation to the criterion under s.36(2)(a) and (aa) of the Migration Act the Tribunal affirmed the Delegate’s Decision to refuse to grant the applicant a Protection Visa: CB 146 at [20].

Grounds of review

1. The applicant relies upon the following grounds of review set out in the Judicial Review Application:

   1.The Tribunal made it (sic) decision based on assumption and not based on facts.

   2.The Tribunal applied irrelevant law and procedures on the applicant.

   3.The Tribunal did not apply the relevant law and regulations according to the laws.

Consideration

Jurisdictional error

1. The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105, (2001) 180 ALR 1, (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”).

Ground 1

1. The Tribunal’s approach to fact-finding in this case was an orthodox one. Having set out the issues to be determined: CB 143 at [8], and made findings as to the applicant’s credibility: CB 143 at [9], the Tribunal:

   a)set out the applicant’s evidence concerning the conversion process, and the Court’s findings in relation thereto: CB 143-144 at [10]-[11];

   b)in respect of the Tribunal’s inquiry into the applicant’s knowledge of the Shia faith:

   i)the Tribunal Decision does not reveal that the Tribunal imposed an arbitrary standard (or assumption) of knowledge of the Shia faith or its doctrines when evaluating the applicant’s knowledge and understanding of that religion: SZLSP v Minister for Immigration & Citizenship [2012] FCA 451; (2012) 127 ALD 495; and

   ii)the Tribunal’s inquiry in that regard was directed more to determining why the applicant decided to allegedly convert from the Sunni branch of Islam to the Shia branch of Islam as a step along the way to considering whether he actually did convert, rather than using his knowledge, or lack thereof, to find that his level of knowledge was insufficient for a person who ascribed to the Shia faith;

   c)dealt with the applicant’s evidence concerning the delay in making the Protection Visa application, and its findings on the existence of a genuine fear of serious or significant harm in Lebanon for the applicant in light of that delay: CB 144-145 at [12];

   d)noted the applicant’s failure to disclose the basis for the genuine fear of serious or significant harm in Lebanon that he now faces at earlier stages of the Protection Visa application process: CB 145 at [13]; and

   e)drew conclusions from its analysis of the facts and findings previously set out to arrive at the conclusion that the applicant had not converted to Shia Islam and did not face harm of any kind in Lebanon: CB 145 at [14].

2. The Tribunal’s conclusions were also made following reference to appropriate country information in the form of the DFAT Country Report: see [8] above.

3. It is well established that the Tribunal is not required to accept uncritically any or all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J. As to credibility findings the Tribunal is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ, and it is recognised that credibility findings are a matter par excellence for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J. In this case the Tribunal considered, sifted, weighed, and in some instances rejected, the evidence relevant to the applicant’s credit and to the applicant’s alleged conversion from the Sunni branch of Islam to the Shia branch of Islam. That is the task of the decision-maker: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1, and it is not apparent that there has been any error in the carrying out of that task in this instance.

4. The Court also observes that it is well recognised that a delay in making a Protection Visa application is a proper and rational matter for consideration in determining whether there was not a genuine fear of serious or significant harm in the applicant’s country of origin, or, at the very least, that the delay is inconsistent with the existence of such a fear: Selvadurai v Minister for Immigration & Ethnic Affairs & Anor (1994) 34 ALR 347; (1994) 34 ALD 347 at 349 per Heerey J.

5. The Tribunal’s findings were open to it on the available material and for the reasons it gave, and for the reasons set out above.

6. It follows that ground 1 is not made out, and that it discloses no jurisdictional error in the Tribunal Decision.

Grounds 2 and 3

1. Grounds 2 and 3 can be taken together as they assert on the one hand that the Tribunal applied irrelevant law and procedures, and on the other hand that it did not apply the relevant law and regulations. These are mere unparticularised assertions by the applicant. In the absence of any submissions, either written or oral, these grounds remain mere unparticularised assertions. As such, they disclose no jurisdictional error in the Tribunal Decision. The failure to particularise a ground of review is sufficient basis for it to be dismissed: SZLEX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM, followed in WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (from which an appeal by the applicant was dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCA 969). In any event, it is apparent from the above outline of the Tribunal Decision: see [4]-[9] above, that the Tribunal identified the relevant issues, asked the right questions, relied on appropriate factual material, did not ignore any relevant factual material, and exercised its power properly and within jurisdiction: Yusuf.

1. It follows that grounds 2 and 3 are not made out and disclose no jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. In those circumstances, the Judicial Review Application must be dismissed. An order to that effect was made on 29 July 2015, together with other ancillary orders, including that the applicant pay the Minister’s costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date: 6 August 2015