AOM15 v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 This is an appeal from the Federal Circuit Court which on 31 July 2015 dismissed the appellant's application for constitutional writs directed to the Administrative Appeals Tribunal ('the Tribunal'): AOM15 v Minister for Immigration & Anor [2015] FCCA 2064. The Tribunal had earlier, on 26 March 2015, affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The delegate's decision was made on 22 April 2014. 2 The appellant is a national of Lebanon who first arrived in Australia on 7 October 1996 on a tourist visa. Before that visa expired on 7 January 1997 he applied for a protection visa and was granted a bridging visa which remained in effect until 16 June 1998. The appellant's protection visa application was ultimately refused on 10 April 1997. The appellant then sought Ministerial intervention and whilst that application was being processed he was granted a series of bridging visas. Ministerial intervention was not forthcoming. Following this, on 3 November 1998, the appellant applied for a 'Residence Family - Change in Circumstances (Full) (AG-806)' visa which was refused on 13 April 1999. Before that occurred, the last of his bridging visas had expired on 15 March 1999. 3 From that date he became an unlawful non-citizen liable to be removed if apprehended. It appears that the appellant remained in Australia thereafter without detection until 2013 at which time he made contact with the Department of Immigration. The circumstances in which he did so were as follows: the initial protection visa application which the appellant had made was not considered from the perspective of whether the Commonwealth had a non-refoulement obligation under international law requiring him not to be returned to a country where he faced a real and foreseeable risk of harm. On 24 March 2012 amendments were made to the Migration Act 1958 (Cth) ('the Act') which required that issue to be examined under the new statutory rubric of 'complementary protection'. On 3 July 2013 the Full Court of the Federal Court concluded in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 that these amendments entitled persons whose claims for protection had previously been rejected to have the claim considered on the basis of complementary protection. This ruling applied to the appellant. 4 On 12 November 2013 the appellant again applied for a protection visa on the basis of SZGIZ. It is that application which is, in effect, the subject matter of the present appeal. His application for the visa was first considered and rejected by a delegate of the Minister. 5 Before the delegate the appellant advanced a case with the following elements: (i) the appellant had been born in the small mountain village of Bqaa Safrin, which is within a district of the Northern Governorate of Lebanon; (ii) in around 1988 he had relocated to Beirut for employment reasons; (iii) eventually, he worked in the construction industry; (iv) he is a Sunni Muslim; (v) in Lebanon there are two Shia political organisations, Hezbollah and Amal; (vi) whilst working on the construction of a bank at Sassine Square in Eastern Beirut he was approached by two workers apparently identifiable as members of Hezbollah and Amal; (vii) the two workers threatened his life unless he permitted them to make copies of the keys to the bank vaults and also to give them access to install hidden surveillance equipment inside the vault or basement; (viii) this he refused to do; (ix) he then became ill after something poisonous was added to a bottle of soft drink which he had consumed; (x) he told his supervisor who then dismissed the men; and (xi) he then feared for his life as a result of which he returned to his village from where he applied for the tourist visa to Australia. His fear was based on the incident at the bank building site and a more generalised concern of the indiscriminate or targeted violence directed at Sunnis as a result of the spillover from the Syrian civil war. 6 The delegate accepted his account of having been approached by members of Hezbollah and Amal as credible. It made no finding as to whether he had been poisoned. It concluded, nevertheless, that he was of no continuing interest to Hezbollah or Amal after he quit his job. Consequently, he had no well-founded fear of persecution for a Convention reason. Strictly speaking this issue was not before the delegate. 7 In relation to the issue of complementary protection the delegate did not accept that he would be subject to targeted harm if he were returned. The delegate accepted that the Syrian civil war had had adverse economic consequences for Lebanon and that there was sectarian violence. But it thought that these were burdens shared by the general population and in any event did not give rise to a real risk of significant harm under s 36(2)(aa) of the Act. 8 Accordingly, the delegate declined to grant the protection visa. 9 The appellant then sought a review before the Tribunal. At the hearing before the Tribunal it correctly identified that the only issue was complementary protection and that SZGIZ did not justify any further examination of the issue of whether a protection visa should be issued for Refugee Convention reasons. 10 The Tribunal conducted an oral hearing which the appellant attended. It was quite plain at the hearing that it decided to examine more critically what the delegate had decided to accept, namely, that the incident with the two members of Hezbollah and Amal had occurred. The appellant was asked detailed questions about this of a most probing kind and with the evident intent of exploring apparent inconsistencies in his version of events. 11 On 26 March 2015 the Tribunal affirmed the delegate's decision albeit for quite different reasons. It identified correctly that the case the appellant put forward at the hearing was that he faced a real and foreseeable risk of harm both by reason of an imputed political opinion of being against Hezbollah and Amal and also because he was a Sunni. It identified that that question was not a question under the Refugee Convention but instead was one of complementary protection. Because the appellant's case was that the harm was likely to be suffered because he was a Sunni and because he held an imputed political opinion, the analysis resembled the question which would have arisen under the Refugee Convention. The difference was that one was concerned with the existence of a well-founded fear of persecution, the other with a real risk of significant harm. Whether, and if so to what extent, these differ in the standard they require need not presently be answered. 12 The Tribunal identified the appellant's case as largely identical to that which had been put to the delegate. There were, however, some differences. The supervisor was now identified as an engineer; he was taken to hospital after he was poisoned and only after that did he inform the engineer of what had occurred. He now said that he had been threatened as well. Two additional points were made. First, he said that in the area he came from, in the north, Hezbollah was now strong. Secondly, he referred to the fact that he had been in Australia for a long time, had paid his taxes and had suffered the misfortune of having paid $10,000 to a migration agent who had not delivered on his promise that he would get permanent residency. 13 Much of the Tribunal's process of reasoning involved a close comparison between his present application and what he had claimed in support of his earlier application for a protection visa in December 1996. To my mind at least seven of these discrepancies may be identified as significant. The Tribunal identified others but these seven will make the point: (1) in the first statement he made in 1997 in support of his 1996 application he had said he left Beirut in 1988 but in the second that he lived there from 1985 to 1996; (2) in his first statement he had said that the two men had asked him to join Hezbollah and that he had not told his supervisor of the approach but in the second statement he said he had been asked by them to give access to the bank vaults and that if he refused he would be killed. He also said he had told his supervisor of this occurrence; (3) in the first statement he said that the men had worn Hezbollah and Amal uniforms outside of work hours but in the second that they had not; (4) in his first statement he said that the two men threatened him by sending him a message after they had been sacked by the supervisor. In the second statement he said they had threatened him at the time he declined to assist them. (5) in the second statement he alleged he had been poisoned but in the first he had made no reference to this; (6) in his first statement he claimed he had been followed after he left work in Beirut but in his second statement he said he had returned to his village and then left for Australia without difficulties; and (7) in the first statement he claimed he was offered a gun by the two men but he made no mention of this in his second statement. 14 In relation to these inconsistencies the appellant argued that: (1) the first statement had been prepared by a lawyer which had created confusion; (2) he was anxious and could not sleep; and (3) the events were a long time ago. 15 The Tribunal considered the inconsistencies and the appellant's explanation for them. It concluded that his account was not credible. It seems to me that the Tribunal's reasoning in this regard is impossible to fault. It was a conclusion which was plainly open to it. The inconsistencies were very substantial even given the time which had passed. The explanation based on the confusion being engendered by the former lawyer and the effect of his anxiety, even with the passage of time, were simply unpersuasive. The Tribunal's reasoning was rational, logical and reasonable. 16 The Tribunal's conclusion on that aspect of the matter was sufficient to deal with the appellant's case based on it being imputed to him that he was anti-Hezbollah or anti-Amal. 17 It remained necessary for it to consider his claim that he would be harmed if returned to Lebanon because he was a Sunni. 18 For this part of its reasons the Tribunal drew, in part, on country information provided by the Department of Foreign Affairs and Trade ('DFAT') in a report dated 25 February 2014. The DFAT report suggested, first, that Beirut was secure with the exception of the Southern suburbs which were dominated by Hezbollah; secondly, that the risk to non-militarised Sunnis in Beirut was low; thirdly, that sectarian violence tended to be targeted at persons expressing strong political views; and, fourthly, that torture did happen in Beirut but mostly at the hands of the police and largely only to people who criticised the Assad regime. The Tribunal accepted these matters. 19 The Tribunal then reasoned that the appellant was not politically active and concluded, therefore, that he faced no real risk of harm as a result of being Sunni. 20 The Tribunal then considered the question of the appellant's economic position. The appellant had argued that his village in the north was in a depressed area because of the large number of Syrian refugees. This, he argued, meant that he would not be able to obtain employment. The Tribunal did not think that this would be a problem. It drew on the appellant's evidence obtained by the Tribunal from him during the hearing that he had US$100,000 and around AUD$35,000 in savings to conclude that he would face no risk of impoverishment when the average salary in Lebanon was around US$10,000. It also thought that he was an experienced plasterer and renderer. 21 In all of those circumstances, it affirmed the delegate's decision although, as is apparent, for quite different reasons. 22 The appellant then applied for judicial review of the Tribunal's decision in the Federal Circuit Court. Three grounds were advanced: '1. The Member of the Refugee Review Tribunal relied on irrelevant material and disregarded my evidence as to the previous and current claim. 2. The Tribunal Member relied on my savings and failed to deal with the correct issue which is what would happen to me if I return to Lebanon. 3. The Member of the Refugee Review Tribunal overlooked the fear of persecution I will face if I am removed from Australia to Lebanon especially the employment factor and failed to take into consideration the absence from my country and that the previous employment history does not lead to a future employment as the circumstances and development of incidents in Lebanon have changed. The Tribunal relied on wrong issue and wrong evidence.' 23 The Federal Circuit Court conducted a hearing on 31 July 2015 and delivered its reasons the same day. 24 At [3] of its reasons the Court said: '3. In support of the applicant's case, the applicant relied upon the transcript before the Tribunal, and in particular referred to a report dated 25 February 2014. He contended that this was old information and that the Tribunal member had not taken into account what is currently happening in Lebanon. …' 25 That argument did not appear to relate to the grounds of appeal although it might, if pressed, just fit within grounds one, two or three. Having noted at [3] that the argument had been put to it, the Court below did not appear thereafter to deal with the argument at any point in its reasons. 26 The report dated 25 February 2014 was the DFAT report referred to above which the Tribunal had used to conclude that the appellant would not be exposed to a significant risk if returned to Beirut. By the time of the Tribunal's decision on 26 March 2015 it was over a year old. At the hearing on 5 March 2015 the Tribunal made extensive reference to the report and, indeed, noted that it was a year old: T56. 27 It was not submitted to the Tribunal by the appellant at the hearing that it should not rely upon the DFAT report because it was out of date. Indeed at T76 this exchange occurred: 'Int/Applicant: Yes I know but I am saying what is happening in Lebanon. Member: Well now you are saying, now you are telling me you are worried about ISIS is that what you are saying now? Int/Applicant: I am talking in terms of security, safety in Lebanon, that if you are walking at any time you could die. Member: Well look Sir I have referred you to that Department Foreign Affairs and Trade report, I mean you have not raised ISIS at all today, you have just now started talking about ISIS taking Lebanese soldiers and killing them, you haven't raised anything in relation to that today so what are you talking about now? Are you saying that ISIS is a threat to you in some way and if so why would that be? And that the situation with ISIS in Lebanon, what are you saying about that? And if this is a concern Sir why have you raised it so late now? This has not been raised by you at all. Int/Applicant: What I mean by that is that there is no safety, no security in Lebanon. At any time a person can die. The security in Lebanon is not strong. Member: Well look Sir as I have said I have drawn your attention to the areas that are referred to in the Department of Foreign Affairs and Trade report. I have gone through that in a lot of detail with you. Int/Applicant: Everything he said was correct. I listened carefully to everything. Member: So what you are saying to me is that you say it is just an unsafe security position in Lebanon generally that is what you are saying to me. Int/Applicant: Yes yes.' 28 That factual observation may be sufficient to dispose of the point. 29 On the other hand, the argument may also have a legal variant. It is useful, for example, to assume that the Tribunal was under some sort of obligation to use up to date information. Even so, there appears to have been nothing before the Federal Circuit Court from which it might be inferred that the information in the DFAT report was not accurate or up to date. Even assuming, without deciding, that the Court can take cognisance of the disaster unfolding in Syria at the present moment without any evidence, this does not provide sufficient information to be able to reason that what was said by DFAT in February 2014 about Lebanon must now be wrong. 30 Accordingly, even if the point was procedurally able to be raised and legally viable, there was insufficient material before the Federal Circuit Court to deal with it. 31 Turning then to the grounds which were dealt with, the Court below rejected ground one in these terms: '8. In relation to ground 1 of the application, the first respondent has submitted that the unparticularised irrelevant considerations failed to make out any jurisdictional error and that it was clear that the Tribunal had had regard to the applicant's evidence. I accept those submissions. There is no jurisdictional error disclosed by ground 1.' 32 I rather apprehended that the unparticularised irrelevant consideration referred to may be the Tribunal's use of the fact that appellant had US$100,000 in savings. However, the primary judge did deal with that issue under ground two (which I deal with below). As to the balance of ground one, it is apparent that the primary judge conceived this as a general reference to the appellant's evidence. I cannot be certain that that would be correct. It seems to me that it is much more likely to be a reference to the appellant's evidence explaining the difference between his two statements which was obviously critical to the Tribunal's process of reasoning. 33 As will be recalled, the appellant had three explanations for why his two statements were inconsistent: confusion appeared in the drafting of the earlier statement because of his solicitor; the passage of time; and, anxiety. 34 It was obviously vital for this information to be considered and assessed by the Tribunal. The problem for the appellant is that it was. At [49] and [51] of its reasons these statement appear: '49. …The Tribunal has referred elsewhere in these reasons to a number of inconsistencies in relation to the applicant's evidence before the Tribunal about his claims. … The Tribunal has considered the applicant's claims that his first solicitor created confusion regarding his claims arising out of his first protection visa application. The Tribunal has also considered the applicant's claims that he gets confused about his claims because of the passage of time and is anxious and worried about his parents and he has sleeping problems. The applicant told the Tribunal that he was not receiving medication in relation to any medical conditions. … … 51. …The Tribunal is not satisfied that the applicant's inconsistent and on occasions vague evidence about the 1996 incident is caused by anxiety or by the passage of time. … Those inconsistencies, in the Tribunal's view, are not explained by the applicant's claims that his former solicitor created confusion in relation to his first protection visa application.' 35 Those statements make it impossible to embrace the appellant's argument. Thus, whilst I am satisfied that the primary judge may have misinterpreted ground one, I am not satisfied that a correct interpretation of it leads to any different outcome. 36 As to ground two, the primary judge reasoned this way: '9. In relation to ground 2, the reasons earlier advanced (the savings of the applicant) were clearly a matter relevant to the applicant's fear of having lost his employment in Lebanon. It is clear that the Tribunal properly considered the applicant's claims to fear of persecution. As identified above, there is no substance and no jurisdictional error in ground 2.' 37 This appears to be a reference to the appellant having left employment on the bank building site in 1996. Yet, it was no part of the appellant's case that he had a fear of returning to Lebanon because he had left his work in 1996. It is unclear what fear the primary judge is referring to here, with respect. It is also unclear to me how the appellant's US$100,000 could be relevant to that fear, whatever it was. Again, I incline to the view that ground two was not really understood in the Court below or adequately addressed. To that extent, error is shown. 38 However, I do not think the error was relevant. What the appellant actually submitted was that unemployment was very high in Lebanon due to the influx of Syrian refugees. Consequently, if he were returned to Lebanon he would face the prospect of prolonged unemployment and hence poverty. This argument the Tribunal rejected at [61]: '61. The Tribunal has considered the applicant's claims that he would be unable to find employment if he returned to Lebanon. The Tribunal has had regard to the evidence before it regarding the applicant's previous employment history and the fact that he was able to find employment while in Lebanon previously and that he worked for a significant period of time in Beirut. The evidence before the Tribunal is that the applicant has significant experience in rendering and plastering work as well as in paining work. The applicant has also provided evidence of his significant savings and that evidence indicates that his current savings well exceeds the average per capita gross national income in Lebanon which is referred to in the DFAT country report of February 2014 as being in 2012 as $10,000 (US). The Tribunal accepts that the influx of Syrian refugees in to Lebanon has created employment difficulties but having regard to the applicant's employment background together with his savings and his acquired skills and his willingness to work in Beirut on previous occasions the Tribunal is not satisfied that the applicant faces a real risk of significant harm on the basis of his employment prospects should he return from Australia to Lebanon.' 39 Thus the relevance of the fact of the appellant's savings was that it defeated the proposition that he would face harm arising from unemployment and attendant financial hardship if he were returned to Lebanon. It was, so viewed, plainly relevant. The correct result was, therefore, that ground two should be rejected. 40 Turning then to ground three, the primary judge dealt with it in these terms: '10. In relation to ground 3 and the proposition that the Tribunal overlooked the applicant's fear of persecution, there is no substance in this proposition. It is clear the Tribunal took into account the applicant's employment and the claims advanced by the applicant. Ground 3 fails to make out any jurisdictional error.' 41 In fact, because the Tribunal was considering only the question of whether the appellant satisfied the requirements for complementary protection the question of whether the appellant had a well-founded fear of persecution was irrelevant. I part company, therefore, with the primary judge's view that there is no doubt that the Tribunal considered the appellant's fear of persecution. To the contrary that was not an issue before it. However, this has no dispositive impact on the outcome. 42 The ground also raises three other matters: the appellant's employment history, his employment prospects and the change in circumstances in Lebanon. As to the first, I am not sure that the primary judge, with respect, perfectly understood the point unless the word 'employment' is made to do a lot of work. The appellant's argument was that he was unlikely to secure employment in Lebanon because he had been absent for a long time and his prior employment history did not show him to have good prospects. The Tribunal dealt with this at [61], which is set out above. In effect, the Tribunal concluded that he was skilled at plastering and rendering. Despite the influx of refugees from Syria the Tribunal thought that he would not face a risk of harm if returned in terms of poverty because of his skills and his savings. It seems to me difficult to say that the Tribunal did not have regard to the appellant's claims in that respect. 43 In relation to the changed circumstances in Lebanon, this really raises the same issue that was considered above in relation to the currency of the DFAT report. 44 In those circumstances, I accept that the primary judge erred in his treatment of ground three. However, for the reasons I have given those errors were not material to the correctness of his conclusions that the ground should be rejected. 45 The primary judge also considered a separate point which was whether the Tribunal had erred by using the first Tribunal's reasons for decision. He rejected such a claim, in my opinion, correctly. As I have endeavoured to show, the Tribunal used the earlier proceeding to assess the accuracy of what the appellant now contended for in light of what he had said before. It did not merely rely upon the earlier Tribunal's reasoning. Indeed, it seems to me that it did not apply that Tribunal's reasoning at all. The primary judge was correct to reject this argument. 46 In this Court the appellant filed a notice of appeal containing the following two grounds: '1. His Honour gave an oral judgement on 31 July 2015. I have not yet received copy of his full judgement in order to specify the grounds. 2. His Honour failed to accept that the Second Respondent relied on out of date country information which is contrary to the procedure of fairness and natural justice.' 47 Ground one has been overtaken by events and the primary judge's reasons are now available. The associate's certificate on page 12 is dated 5 August 2015 which suggests they were sent only five days after the delivery of reasons ex tempore. No meaningful ground of appeal arises from this situation. 48 As to ground two, I have already explained that this contention cannot be correct, regardless of how the primary judge dealt with the matter. The appellant had plenty of opportunity to cavil with the DFAT report of 25 February 2014 but did not do so. Furthermore, nothing before the Federal Circuit Court demonstrated that there was more up to date information. 49 At the hearing of the appeal before me I raised this with the appellant. He endeavoured to persuade me that there was fresh information. However, it became apparent that the information nominated by him was really no more than the proposition that he would be harmed if he returned. This does not constitute more up to date information. 50 For all of those reasons the appeal must be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.