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[2019] FCA 1639
Federal Court of Australia
2019-10-10
Allsop CJ, Griffiths JJ, Davies J
Original judgment source is linked above.
DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("FCC") dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal ("Tribunal") which affirmed the decision of a delegate of the first respondent ("the Minister") not to grant the appellant a protection visa. For the reasons that follow the appellant is granted leave to amend and rely upon the grounds of appeal in the form of the amended notice of appeal dated 12 August 2019 and the appeal should be allowed.
Background 2 The appellant is a citizen of Lebanon. In May 2010 he came to Australia on a Sponsored Family Visitor (Class UL-679) visa and shortly thereafter applied for a protection visa. A delegate of the Minister refused that application and in August 2011 the Refugee Review Tribunal affirmed the delegate's decision. 3 In November 2012 the appellant lodged a second application for a protection visa. That application was accepted as valid following the Full Court's decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 (Allsop CJ, Buchanan and Griffiths JJ). In May 2015 a delegate of the Minister refused to grant the appellant a protection visa and in July 2018 the Tribunal affirmed that decision. 4 The appellant's protection claims were based on three circumstances. Only two of those circumstances are relevant to the present appeal, being the appellant's claims that: (a) between 2007 and 2009 he was detained without charge at the Roumieh Prison near Beirut for suspected involvement in terrorism. He was released in May 2009 after his family paid bail. He left Lebanon in May 2010 and came to Australia. On 15 May 2014, an arrest warrant was issued in Lebanon for him on the substantive charge of terrorism. The trial was held in his absence and he was found guilty and sentenced to death; (b) Lebanese authorities advised the Tribunal in February 2017 that the appellant has additional criminal matters pending and so he would be at a real risk of significant harm arising from the grave prison conditions in Lebanon, if he was to return there in the reasonably foreseeable future and was arrested on those additional pending criminal charges. 5 Relevantly to this appeal, the Tribunal found that the appellant had been convicted of terrorism offences by the Lebanese Judicial Council in 2014 and the death penalty was imposed as the sentence. However, the Tribunal did not accept that there was a real risk that the death penalty would be carried out on the appellant, should he return to Lebanon. That finding was based on the translation of a written statement from the appellant's lawyer in Lebanon that the appellant "was spent his execution and has been suspended for almost two years and then released on bail", and upon country information that since 1998 Lebanon had upheld an unofficial moratorium on executions and there was no indication that Lebanon proposed to end its moratorium. 6 The Tribunal also accepted that if the appellant returns to Lebanon in the foreseeable future the Lebanese authorities may seek to arrest him in relation to the additional criminal charges against him pending in Lebanon but found no indication that it would be an arbitrary arrest. After also noting country information reported by DFAT indicating that those arrested in relation to sectarian violence or extremism face a particularly high risk of torture at the hands of authorities, the Tribunal found no indication that the appellant's outstanding criminal matters had any connection to sectarian violence or extremism. The Tribunal accordingly did not accept that he would be likely to be subject to torture, or cruel or inhuman treatment or punishment, or degrading punishment if he returned to Lebanon in the foreseeable future. 7 For these reasons the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Lebanon, there is a real risk the appellant will suffer significant harm. In so concluding, the Tribunal did not consider whether the poor conditions of prisons in Lebanon constituted "significant harm" within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth) ("the Act"). 8 The appellant sought judicial review of the Tribunal's decision on two grounds. Ground 1 was an allegation that it was legally unreasonable for the Tribunal to find that there was no real risk that the appellant would face significant harm, including torture or mistreatment, or the death penalty by the Lebanese authorities in relation to any terrorism or other political issue in the foreseeable future. Ground 2 was an allegation that the Tribunal failed to consider the appellant's claim that he faced a real risk of being detained or imprisoned if returned to Lebanon and would face a real risk of suffering "significant harm" because of the conditions in Lebanese prisons. 9 As to ground 1, the FCC found that there was no legal unreasonableness in the conclusion of the Tribunal that, notwithstanding the appellant's conviction for offences for which he received the death penalty, it was not satisfied that the appellant would face a real risk of significant harm from Lebanese authorities if he were to return to Lebanon. Although the FCC concluded that ground 1 failed, the FCC went on to make some observations about inconsistencies in the documentary evidence. At [46]-[48] the primary judge observed: Before I leave this part of my reasons, there are some observations I wish to make about the document that purports to be a letter from Mr Z and the document recording the purported judgment of the Judicial Council. The Tribunal accepted the two documents were authentic; but there are obvious inconsistencies between them. One is that the judgment states the applicant failed to appear before the Judicial Council "despite being notified", yet Mr Z states he is "the agent" of the applicant in "criminal proceedings before the Justice Council", implying that the applicant, at least through an agent, engaged in some way with the proceeding that was before the Judicial Council. Second, Mr Z described the Judicial Council as the "Justice Council". It is not apparent that the one judicial tribunal goes under the names of both "Judicial Council" and "Justice Council". Third, none of the orders recorded in the purported judgment refers to the applicant having been released on bail. Quite apart from the inconsistencies between the two documents, there are odd features about the documents and the matters they purport to record, whether considered alone or with other evidence that was before the Tribunal. First, it makes little apparent sense that, as asserted in the purported letter from Mr Z, the applicant would have been granted bail two years after the Judicial Council made its orders, given that the applicant had left Lebanon in 2010. Second, material that was before the Tribunal suggests no apparent explanation why the applicant would be charged and convicted of a capital crime in 2014, years after, on the applicant's account, he had been released from detention in 2009. Third, the applicant provided no documents in relation to the proceeding that resulted in the purported judgment. Fourth, the judgment does not sit comfortably with other evidence that was before the Tribunal. For example, in support of the first PV application the applicant provided another letter purportedly from Mr Z, this time stating that the applicant was in detention in Roumieh Detention prison from 26 May 2007 to 29 May 2009 "where he was released because he was not guilty in a terror crime they attributed to him". There is also a letter, again purportedly from Mr Z, but this time addressed to "Investigating Magistrate of Beirut", stating that "my mandate" (the applicant) had been in detention "for an approx. period of three years due to the crime of Terror and released against caution", and that "my mandate" required an "official statement showing the date of his arrest and release". I refer to these matters because it appears to me that the Tribunal based its decision on findings which it made without attempting to reconcile evidence before it that was at least arguably inconsistent. The applicant, however, does not submit it was not open to the Tribunal to treat the purported letter from Mr Z as genuine, and to accept as true the various assertions of fact expressly or impliedly conveyed by the letter or, at least, assertions it was reasonably open to the Tribunal were expressly or impliedly conveyed by the letter from Mr Z… Aside from making those observations, the FCC did not consider those apparent evidentiary inconsistencies in assessing legal unreasonableness. 10 As to ground 2, the FCC accepted that there was nothing in the Tribunal's reasons to suggest that it had considered the appellant's claim that the prison conditions themselves would constitute "significant harm" as defined in s 36(2A) of the Act. However, the FCC concluded that the failure to consider that claim did not amount to jurisdictional error because the poor conditions in Lebanese prisons were incapable by themselves of constituting "significant harm" within the meaning of s 36(2A), reasoning that to constitute "significant harm" the relevant "harm" must be intentional and the country information that was before the Tribunal could not reasonably support a finding that the relevant "harm" constituted by the poor prison conditions could be said to be intentional.
Appeal 11 The amended notice of appeal raises two grounds: 1. The Federal Circuit Court erred by failing to conclude that the Tribunal made a jurisdictional error by making a legally unreasonable finding of fact. Alternatively, the Federal Circuit Court erred by failing to conclude that the Tribunal was in error by failing to grant relief on the basis of its conclusion that 'the Tribunal based its decision on findings which it made without attempting to reconcile evidence before it that was… inconsistent'. 2. The Federal Circuit Court erred by failing to conclude that the Tribunal constructively failed to conduct a review as required by s 414 of [the Act], or failed to evaluate an integer of or a submission of substance made by the Applicant, by not dealing with the claim that the Applicant was at real risk of significant harm from prison conditions in Lebanon irrespective of the reason for the detention or imprisonment. 12 It was argued for the Minister that ground 1 raised a new ground that was not relied on before the FCC and leave was required to raise that ground for the first time on appeal, the grant of which the Minister opposed. I disagree that ground 1 does raise a new legal argument as the ground is substantively the same as the ground relied on below, albeit expressed in different terms, and engages similar considerations to the ground as framed in the FCC below. However, if and to the extent it is properly to be characterised as a "new ground", leave to rely upon the reframed ground should be granted as a matter of caution. The general principle guiding the discretion whether or not to permit a ground to be raised on appeal which was not one below is whether it is expedient in the interests of justice to do so: Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510; [2017] FCAFC 73 at [19] (Griffiths, Mortimer and Perry JJ). In this case, it is expedient in the interests of justice to grant leave. This is not the kind of case where a completely new point is sought to be argued raising separate and different issues for agitation on the appeal and, for reasons which follow, I consider that the ground has merit. Also no real prejudice to the Minister was identified in permitting that ground to be advanced. In this regard I reject the submission that such prejudice would be constituted by the possibility that if the ground succeeded and the matter was remitted to the Tribunal the Minister may want to have some of the Arabic documents translated by a NAATI accredited translator. Such "prejudice", in any event, would be outweighed by the prejudice to the appellant in this case, if denied the opportunity to advance a meritorious ground.
Ground 1 13 It is necessary to set out the relevant factual evidence and the findings of the Tribunal with respect to that evidence in order to address this ground. 14 Supporting the appellant's claim that he was in prison between 2007 and 2009 was: (a) A written statement from the appellant's lawyer, Mr Zakaria, in Arabic dated 22 May 2010 ("the first statement"), the English translation of which was that: [Mr Zakaria was] the attorney of [the appellant] in the case that lent [sic] to his arrest in Roumieh Detention Prison from 26.05.2007 to 29.05.2009 where he was released because he was not guilty in a terror crime they attributed to him. (b) A letter from Mr Zakaria in Arabic dated 28 May 2010 to the "Investigating Magistrate of Beirut" ("the second statement"), the English translation of which was that: Whereas my mandate was in detention for an approx.. period of three years due to the crime of Terror and released against caution: Whereas my mandate needs official statement showing the date of his arrest and release; I kindly ask your Presidency to deliver official writing statement showing the date of the provisional detention and the subject of crime for which he was arrested. (c) An English translation of an official record of the Lebanese Ministry of Justice dated 30 June 2010 which stated that the appellant had been arrested on 13 September 2007 and released on 29 May 2009. 15 Supporting the appellant's claim that he was convicted in absentia in May 2014 on terrorism charges was: (a) the ruling of the Judicial Council translated by a NAATI accredited translator which stated that an arrest warrant was issued in the appellant's name and put into effect on 15 May 2014 after he was tried in absentia, convicted and sentenced to death; (b) an (undated) written statement from Mr Zakaria, in Arabic ("the third statement"), the English translation of which was that: I, the undersigned, lawyer Fawaz Zakaria, declare that I am the agent of [the appellant], in criminal proceedings before the Justice Council has issued a judgment against in absentia under no. 30/2014 dated 24/10/2014 was spent his execution and has been suspended for almost two years and then released on bail. This document was translated on 23 November 2016; (c) advice received from the Australian Embassy in Beirut in December 2016 which verified the genuineness of the conviction and death sentence and advised that according to the Lebanese authorities the appellant had additional criminal matters pending against him; and (d) further advice received by the Tribunal from the Department of Home Affairs dated 19 March 2018 again advising that the Lebanese authorities had informally verified that the appellant's claims to have been sentenced to death in absentia by the Judicial Council in Lebanon were genuine. 16 The Tribunal made the following findings: (a) it accepted that the appellant had been in prison somewhere in Lebanon between 2007 and 2009; (b) however, it did not accept that the appellant was held at Roumieh Prison; (c) it accepted that the appellant was tried and convicted in 2014 in his absence on terrorism related charges and sentenced to death; (d) however, it did not accept that the appellant would face the death penalty if he returned to Lebanon or that it was likely that the appellant would be subject to torture, or cruel or inhuman treatment or punishment or degrading treatment by the Lebanese authorities, if he returned to Lebanon, by reason of the facts that: (i) it had been 11 years since the offending behaviour took place; (ii) it had been eight years since the appellant had been in Lebanon; (iii) the appellant had already done his time in prison for the terrorism offences he committed (from 2007 to 2009) and had been released on bail; (iv) the appellant's sentence of death was suspended for two years and that time had since passed; and (v) while the appellant was technically still on bail "he appear[ed] to be no longer subjected to the death penalty as determined by the 2014 decision". 17 The finding that the appellant would not face the death penalty if he returned to Lebanon was based on the information contained in the third statement from Mr Zakaria, which the Tribunal stated it had no reason to doubt. Yet, contrary to the information contained in the first statement from Mr Zakaria that the appellant had been detained at Roumieh prison between 2007 and 2009, the Tribunal found the appellant's claim to have been imprisoned in Roumieh prison was not credible, reasoning that the appellant: … was never able to provide specific and consistent information about Roumieh prison or of the alleged mistreatment he claimed he was subjected to there. The [appellant's] evidence was so vague, evasive and non-specific it did not convince the Tribunal that he himself [had] actually experienced what he claimed to have experienced… There is an obvious significant and unexplained inconsistency in the reasoning process by which, on the one hand, the Tribunal made a finding contrary to the lawyer's statement that the appellant had been detained in Roumieh prison between 2007 and 2009, yet uncritically accepted the information in his third statement on the basis there was no reason to doubt its accuracy. The inconsistency plainly bears on the logicality of the findings made by the Tribunal. 18 Nor did the Tribunal attempt to reconcile the apparent inconsistency between the appellant's lawyer's first statement that the appellant "was released [in 2009] because he was not guilty in a terror crime they attributed to him" with either his second statement that the appellant had been "released against caution", whatever that may mean, or the evidence that the appellant was convicted of terrorism charges in 2014 in absentia and sentenced to death for terrorism charges. These inconsistencies materially bore upon the accuracy and reliability of the appellant's lawyer's third statement and, moreover, provided reason to question the English translation of each of the Arabic documents. 19 The English translation of the third statement has obvious difficulties and ambiguities which required clarification, particularly as there was no indication on the official record of the conviction and sentence or from the enquiries made of the Lebanese authorities to support that the death sentence was suspended for two years or that the appellant had already served his time for the offences for which he was convicted. 20 The Tribunal neither dealt with the inconsistencies nor dealt with the ambiguities but proceeded to make a finding in a way which cannot be reconciled with other documents and statements. Accordingly I find that the FCC erred by failing to find that the Tribunal fell into jurisdictional error by making a legally unreasonable finding of fact and ground 1 has succeeded.
Ground 2 21 The FCC was correct to hold that the Tribunal's failure to consider that claim would not amount to jurisdictional error unless the information before the Tribunal could reasonably support a finding that the Lebanese authorities could be said to have intended to inflict severe pain or suffering in sending a person to prison due to the poor conditions in Lebanese prisons. However, I disagree with the FCC that the breach did not amount to jurisdictional error. 22 In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 the Tribunal found that if the appellants were returned to Sri Lanka, their country of origin, and arrested and charged under the laws of that country because they had left it illegally, they would likely be held in remand for a short period. The Tribunal also accepted that prison conditions in Sri Lanka were poor and may not meet international standards by reason of matters such as overcrowding, poor sanitary facilities and limited access to food. It was argued that a Sri Lankan official, to whom knowledge of prison conditions could be imputed, could be said to intend to inflict severe pain or suffering on the appellants or intend to cause them extreme humiliation by sending them to prison because the official must be taken to be aware of the prison conditions. The plurality of the High Court held at [27] that the intent requirement in relation to significant harm will only be satisfied if the perpetrator has an "actual, subjective, intention" to cause pain or suffering and that "knowledge or foresight of a result is not to be equated with intent". However, the plurality also stated at [29] that evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention and in some cases the degree of foresight may render the inference compelling. In that case, it was held having regard to the evidence before the Tribunal (including evidence about what the Sri Lankan authorities might know) that the Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation. 23 In the present case, the Tribunal accepted that the appellant may be arrested because of additional criminal charges pending against him if he returned to Lebanon. Critically, the country information before the Tribunal about poor prison conditions in Lebanon included some information which indicated that the poor state of the prisons was not from a lack of resources but rather was a deliberate policy. One piece of country information reported that: The degradation of Lebanese prisons is due to their management. While the Justice Ministry should take care of all detention centres, it is still the Interior Ministry that imposes its policies. As such, "we just have a security approach with a total lack of resources, expertise and knowledge" … 24 In my view such country information bore upon, and was relevant to, the question of whether, in sending a person to prison, Lebanese authorities intend to inflict the requisite degree of pain or suffering or humiliation to constitute "significant harm" for the purposes of the Act. To constitute jurisdictional error, the appellant did not need to show that this country information is likely to have changed the outcome, but only that the failure to consider it denied him a possibility of a successful outcome or could realistically have resulted in a different decision: cf Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780; [2018] HCA 34 at [30], [72]; Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 at [2], [45], [49]. In my view, it can be said that there is a realistic possibility that the outcome might have been different had the relevant information been considered by the Tribunal and the failure to consider this aspect of the appellant's claim was therefore a material breach of procedural fairness. Accordingly I disagree with the FCC that the failure to consider the claim did not amount to jurisdictional error and the appellant has also succeeded on ground 2.
Conclusion 25 In view of my conclusions, the appeal should be allowed and the matter remitted to the Tribunal for determination in accordance with the law. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.
DZT18
Minister for Home Affairs
(2019) 93 ALJR 252
(2017) 250 FCR 510
(2013) 212 FCR 235
(2017) 262 CLR 362
(2018) 92 ALJR 780