Makdessi v The Minister for Immigration & Multicultural Affairs

The Tribunal's decision 5 The Tribunal accepted the applicant's account of the four incidents. In relation to the first incident, the Tribunal found that it was a case of "nothing more than an officious policeman" and that the applicant "did not suffer harm of a type or severity that could be called persecution nor was it for a Convention reason". 6 In respect of the second incident, the Tribunal found that the soldiers beat and detained the applicant "because they were angry at his refusal to do what they wanted, not because he was of a different religious or political persuasion to themselves." In other words, the Tribunal found that the harm suffered by the applicant was not by virtue of any religious reason or political opinion, actual or imputed, but for a non-Convention reason. A similar finding was made in respect of the third incident. 7 In respect of the fourth incident, the Tribunal did not accept the submission that the applicant's attackers were attracted by the crucifix around his neck because it would not have been visible to them (the applicant had also claimed to have a crucifix in his car). The Tribunal said: "…the applicant was, by his own admission, standing up a ladder working at the billboard. It is not physically possible that he had anything other than his back turned towards people approaching him along the street. He did not turn until they called to him; then he climbed down the ladder, still with his back towards the group. He could not have faced them, thereby possibly displaying his crucifix if his shirt was open, until he was at ground level. The group had called to him on approach about posters: clearly they had in mind that they would tell him to affix their own poster of Sheik Shaaban. Unlike the policeman of the first incident, the group could not have been attracted by any political or religious symbol on the posters with which the applicant was working: they were advertisements for confectionery." The Tribunal did accept the applicant's claim that one of his accosters "grabbed his crucifix with force, wrenched it off and stamped on it". However, the motivation for the attack was found to be the refusal to put up posters rather than any political opinion or religious belief. In pulling off of the applicant's crucifix: his accosters were simply hurting him for refusing to put up their posters. The threat, "[c]onsider yourself dead from this moment!", was found by the Tribunal to be a "curse uttered in the heat of the moment by an angry person rather than a serious commitment to kill someone for a Convention reason." 8 In summary the Tribunal concluded that: "The Tribunal is satisfied that in each of the last three incidents detailed above the applicant suffered harm (which on no occasion was of a type or severity that could be called persecution) as a result of refusing to affix another group's posters with which he was supplied. The harm that may have befallen him could be considered an occupational hazard or work-related injury. The Tribunal is satisfied that in none of the three cases is there a Convention nexus."

The fourth incident 9 Two submissions were made by counsel for the applicant to suggest that the Tribunal had fallen into error in dealing with the fourth incident, having regard to s 430 of the Act. It was submitted that: i. the Tribunal had failed to consider the material fact that the applicant's car, which could reasonably be expected to be parked close to where he was working, also carried a crucifix, and that the applicant's accosters may have seen this crucifix; and ii. the Tribunal failed to explain how it came to the finding, to "set out the reasons for the decision": s 430(1)(b), that it would have been impossible for the applicant's attackers to have noticed the crucifix around his neck and there was no evidence to support this finding. 10 As to what is a material fact for the purposes of s 430, the majority of the Full Court of this Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 said: "There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. That is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process. … Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with. … A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists … It follows from the reasons earlier given that a failure to comply with s 430 is not made out by reason only of a failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue."

11 In Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, McHugh J said at paras [64]-[66]: "There is some authority in the Full Court of the Federal Court for the proposition that s 430(1) requires the reasons of the Tribunal to refer to evidence contrary to findings of the Tribunal [Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 31: Logenthiran v Minister for Immigration and Multicultural Affairs [1998] 1691 FCA; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182]. However the contrary view was taken by differently constituted Full Courts in Ahmed v Minister for Immigration and Multicultural Affairs [[1999] FCA 811], Addo v Minister for Immigration and Multicultural Affairs [[1999] FCA 940] and Sivaram v Minister for Immigration and Multicultural Affairs [[1999] FCA 1740]. In Addo, the Court said [[1999] FCA 940 at [24] and [31]: 'Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.' In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out 'the reasons for the decision' (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. (emphasis added) 12 In the circumstances of this case, an undoubtedly material fact to be addressed by the Tribunal with respect to the fourth incident was whether the persecutory conduct by the applicant's accosters was motivated by a Convention reason, namely the applicant's religion. Whilst it may well have been relevant to that inquiry to ask how the applicant had come to the attention of his accosters, mere potential relevance does not convert a fact into a material one. Such a fact would be merely one element to be weighed by the Tribunal in determining whether the applicant had been beaten for a Convention reason. Further, though a matter for the Tribunal, the weight to be attributed to the manner in which the applicant had come to the attention of his accosters was greatly diminished, because it was accepted by the Tribunal that the applicant's accosters had in any case become aware of his religious persuasion when he descended the ladder. 13 In addition, apart from mentioning that he always had a crucifix in his car, it was not put to the Tribunal that the applicant's car was on the street on which he was working; nor was it otherwise explained how the applicant's accosters would have known that it was the applicant's car. Accordingly, there was no material evidence for the Tribunal to accept or reject. Again, whether or not the applicant's tormentors had noticed the crucifix was not part of the logical chain of reasoning of the Tribunal. Regardless of what religion the applicant followed, in the Tribunal's view he was approached because he could put up posters, and the reason that he was mistreated did not depend on his having had a crucifix in his car. Accordingly the crucifix in the car was immaterial to the Tribunal's reasoning and to the crucial questions in the case. 14 The submission that the Tribunal failed to explain how it reached its finding that it would have been impossible for the applicant's accosters to have noticed the crucifix he was wearing until after they called out to him, and that this gives rise to a reviewable error, is also not made out. On a fair reading of the Tribunal's reasons there is a clear explanation for the finding which complies with the requirements of s 430 of the Act. The Tribunal stated in its reasons: "…the applicant was, by his own admission, standing up a ladder working at the billboard. It is not physically possible that he had anything other than his back turned towards people approaching him along the street. He did not turn until they called to him; then he climbed down the ladder, still with his back towards the group. He could not have faced them, thereby possibly displaying his crucifix if his shirt was open, until he was at ground level." This indicates exactly the Tribunal's reasons for finding why it was impossible for the group to have seen the crucifix before they called out to the applicant, which is what is required by s 430. In my opinion this was a permissible finding of fact by the Tribunal. In any event, as held in Singh, s 430 does not require that there be disclosed a satisfactory process of reasoning leading to the decision, but merely that the actual reasoning be disclosed. 15 In my opinion, the above extract of the Tribunal's reasons deals with the applicant's additional ground of appeal, that there was no evidence to support this finding and that this gave rise to a reviewable error pursuant to s 476(1)(g) of the Act. The Tribunal quite reasonably inferred that, if the applicant was up a ladder putting up a poster, he would have had his back turned to people walking on the street and that any chain he may have been wearing would not have been visible to such people. Counsel for the applicant claimed that there was no evidence that the applicant was putting posters on a wall or billboard and that he could have been putting the posters on a post. However, in the transcript of the Tribunal hearing, the following exchange is recorded: "MS ZELINKA: Okay, now did the company own billboards or did it just put posters on any surface, any old walls? THE INTERPRETER: No the company used to own those billboards." This indicates that there was evidence that the applicant's job was to paste posters on billboards. Billboards are more usually placed on walls than on freestanding posts. There was, therefore, evidence to support the Tribunal's finding, by inference, that he had his back to the group that approached him. 16 It was further submitted by counsel for the applicant that there was also no evidence to support the Tribunal's finding that: "they [beat him] because they were angry at his refusal to do what they wanted, not because he was of a different religious or political persuasion to themselves." In my opinion, the Tribunal did not deal with the matter erroneously. The Tribunal considered the evidence as to the assailants stamping on the cross and blaspheming, but concluded that the second and third incidents (and difficulties faced by the applicant's colleagues) indicated a pattern whereby members of particular interest groups would harass persons in the applicant's line of work in order to further their own causes, rather than to persecute such workers for a Convention reason. The Tribunal found that such conduct could be "considered an occupational hazard or work-related injury". 17 Finally, even if the Court were to accept any of the applicant's submissions on this issue, it would not ultimately assist the applicant, as any such error would not impugn the finding of the Tribunal on the fourth incident. That is because it was also found that the harm inflicted, the ripping off of the crucifix, the blasphemy and the threat, was not serious enough to amount to persecutory harm according to the Convention. Such a finding was clearly open to the Tribunal.

Other alleged deficiencies in the Tribunal's reasons pursuant to s 430 18 It was submitted that whether the state of Lebanon, such as it functioned at the time of the fourth incident, could give effective protection to citizens such as the applicant from persecution on religious grounds by Islamic extremists and/or Syrian soldiers was a material fact, and that failure to make ("set out") findings about it involved a breach of the requirements of s 430. However, given that the Tribunal found that there was no persecution for Convention reasons, there was no reason for it to consider the ability of the State to protect the applicant from past persecution arising out of religious views. There, is however an issue as to whether the Tribunal should have considered whether the applicant had suffered (or might otherwise reasonably fear) persecution merely as a Christian. To that extent, the ability of the State may be a material fact and this is considered below. 19 It was submitted by counsel for the applicant that the Tribunal had failed to set out findings about "whether the dangers inherent in the work undertaken by the applicant were Convention-related." This issue is no doubt a material fact. However, upon a fair reading of the Tribunal's reasons it is clear that the Tribunal considered each of the four incidents and concluded that either they were not Convention-related or that the applicant did not suffer persecution. As indicated above, whether or not the reasons are correct is a different issue, but reasons were given by the Tribunal as to why each incident was not Convention-related. Implicit in such findings was that the risks inherent in the applicant's line of work were not Convention-related. 20 The sufficiency of the "setting out" of findings for the purposes of s 430 depends on what the findings are, how they arise and all the circumstances of the case: see e.g. Fry v McGufficke [1998] FCA 1499. Hindsight can often conjure up a large number of express formulations of implicit propositions dealing with a "material question of fact", which themselves may be said to constitute material questions of fact. Formulations of intermediate questions of fact which might themselves declare to be called material questions of fact can often also be numerously essayed. The Tribunal is not required to deal expressly with every such possible formulation. It is enough, in general, that the gist of the finding as to what may be called the critical questions of fact should be safely discernible from the Tribunal's reasons as a whole. Such is, I think, the case here. 21 It was also claimed by counsel for the applicant that, as the application for review puts it, the Tribunal had failed to set out findings about "whether the refusal to affix posters of a political/religious nature in a country such as Lebanon where religious divisions are consolidated by the Constitution itself may have amounted to an act of a religious/political nature covered by the Convention." Counsel for the respondent submitted that the issue is "whether the applicant's attackers would view the refusal in that manner" relying on what was said in Ram v Minister for Immigration & Multicultural Affairs (1995) 57 FCR 565 by Burchett J (O'Loughlin and RD Nicholson JJ agreeing). Burchett J said in Ram that persecution involves: "…an element of an attitude on the part of those who persecute which leads to the infliction, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors." This is a material fact within s 430 of the Act. The Tribunal found however that the motivation of the various attackers was not Convention related and that the treatment meted out to the applicant in the various incidents was on account of the frustration and anger, felt by his interlocutors, at the applicants' refusals to put up posters, not because such refusals were seen as religious or political actions. The Tribunal's reasons do set out its findings on this issue and there is no error.

Persecution of Christians in general 22 It was submitted by counsel for the applicant that the Tribunal made an error of law in assuming that the Convention would only apply to the applicant if the alleged persecution was systematic or state-sanctioned. The Tribunal accepted that, after it looked at the four incidents, it would need to consider all the evidence cumulatively to determine whether the applicant had a claim for refugee status. It was argued that the Tribunal had, however, not considered whether the evidence showed an inability on the part of the state to protect Christians generally. 23 In Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 McHugh J explained: "The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are signalled out and persecuted by or with the tacit acceptance of the government out of the country from which they have fled or to which they are unwilling to return. Persecution by private individual or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality." (emphasis added) Given the evidence before the Tribunal as to the constitution of the government and the positions of Christians within it, there is little doubt that the state of Lebanon does not encourage persecution of Christians. It is, however, another question whether or not that state is, on the evidence, unable to prevent non-state actors from engaging in private persecution. 24 In its reasons the Tribunal noted that the applicant: "…heard news from his family in Lebanon that his cousin there had been the subject of a vicious attack on 7 December 1998. The cousin, a taxi driver who has a crucifix displayed in this cab, was hailed by two men who after some distance drew a gun and directed the driver down a quiet rural road. They then tied him to a tree in the manner of a crucifiction and tortured him before leaving him there in that way. The applicant's cousin was found by a farmer and taken to hospital. The taxi when it was found was without its crucifix. … [The applicant] heard another frightening story (through the Arabic press in Australia) in which some Christians were putting up Christmas decorations when they were forcibly stopped by Al Tawheed members. The police came to support the Christians but the conflict escalated and the Al Tawheed members shot two policemen. The police later arrested one of the perpetrators; the trial was moved to Sidon in southern Lebanon, away from Al Tawheed territory, but even so, it was disrupted… [The applicant] claimed that political parties like Hezbollah and Al Tawheed are making life impossible for Christians in Lebanon. In the reasonably foreseeable future - perhaps in a year or two - the Muslims will push out all the Christians. The applicant also said that there was no real Lebanese government; the Syrian army was still there in force and was actually running things. … [The applicant] said that his brother was a taxi driver (like the earlier mentioned cousin) with a crucifix in his cab and that he has been beaten up… [The applicant] did not detail any incidents which may have befallen his family members (apart from those with the taxi drivers already discussed) or any trouble that may have been experienced at home, despite questions along those lines. … [T]he Tribunal understands that a Greek Orthodox Church in Tripoli was damaged by a bomb on 25 October 1999; that another Greek Orthodox was 'targeted' (although the Tribunal is unsure whether there was actually a bomb …)." 25 The Tribunal then went on to address the issue of persecution of Christians in general in Lebanon in the following manner: "The applicant has made a general claim that he will face discrimination or worse as a Christian if he returns to Lebanon. The Tribunal has noted independent evidence available, and has reproduced some extracts … Although a number of problems still exist in Lebanon, there is no indication that there is any systematic and state-sanctioned persecution. To the contrary, within the parliamentary system, Christians still have disproportionate representation (to their advantage) and have maintained their hold on the Presidency, the most important government position." 26 It was claimed by counsel for the applicant that the negation of "systematic and state-sanctioned persecution" did not address the applicant's claim that he faced persecution by Islamic extremists and by Syrian soldiers from which the Lebanese government would be unable to protect him. Counsel for the respondent on the other hand argued that the phrase "systematic and state-sanctioned" ought to be interpreted to show that the Tribunal had considered non-state persecution because the reference to "systematic" should be read as independent of "state-sanctioned". Given the preceding sentence, the statement that "there is no indication that the applicant will face systematic … persecution", ought to be considered in light of the independent evidence that was available before the Tribunal and that which was cited by the Tribunal. 27 Under the heading "Independent Evidence" the Tribunal cited materials that considered the Al Tawheed organisation and concluded that it "is no longer a political force to reckon with". In this context the Tribunal also noted that: "[Al Tawheed] declined in power as the better organised and financed Shi'ite militias, Hezbollah and Amal gained prestige confronting the Israelis." The Tribunal also cited the following material: "Non-Lebanese military forces control much of the country. These include about 25,000 Syrian troops, a contingent of approximately 2,000 Israeli army regulars and 1,500 Israeli-supported militia in the south, and several armed Palestinian factions located in camps and subject to restrictions on their movements. All undermine the authority of the central Government and prevent the application of law in the patchwork of areas not under the Government's control. In 1991 the governments of Syria and Lebanon concluded a security agreement that provided a framework for security cooperation between their armed forces. However, an undetermined number of Syrian military intelligence personnel in Lebanon continue to conduct their activities independently of the agreement." Other independent evidence before the Tribunal included a statement that "There were reports of politically motivated killings of liquor store owners in Sidon by extremist groups." 28 Upon a fair reading of the Tribunal's reasons, it appears that the applicant's claim to fear persecution by private actors, from which his state of nationality cannot protect him, was not adequately considered by the Tribunal. Although the Tribunal appears to have considered whether the applicant might face persecution from the Al Tawheed, it does not appear to have considered whether Christians might be persecuted by other extremist groups or by Syrian soldiers. Of course the Tribunal's reasons should be interpreted with proper generosity and respect and, in my view, the Court should make a real effort to understand what conclusions the Tribunal really did reach. See, for example, my remarks at para 19 above as to the meaning of "set out" in s 430 of the Act. But there are limits to this process. If, in truth, a finding has not been expressly made on an aspect of the case that called for it and there is material such that one cannot, as I would put it, safely infer a finding, the Court should not, having regard to what is or may be at stake in proceedings before the Tribunal, resort to inferences as a matter of mere balancing of probabilities, let alone indulge in speculation, as to what the Tribunal would have found had it turned its mind to the matter in question. The phrase adopted by the Tribunal, "systematic and state-sanctioned persecution", cannot in my view safely or fairly be regarded as having included a consideration of the proposition that the applicant might face religious persecution against which, although the state did not sanction it, it could not protect him. Had this matter been considered and negatived, one would expect there to be an express finding as to the Lebanese state's capacity to protect a Christian citizen such as the applicant against any possible religious persecution by non-state actors. There was no such finding, in my view, express or implicit. 29 However, the question arises whether that was a material error. As stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Minister for Immigration & Ethnic Affairs v Thiyagarajah (2000) 74 ALJR 549 at 552: "The error of law that will attract review must be more than one found in a step-taken at some stage in the decision-making process. The involvement of which s 476(1)(e) speaks postulates an error which finds a necessary consequence in the ultimate decision to affirm the refusal of the grant of a protection visa." (emphasis added) 30 The Tribunal concluded, among other things: "There are random incidents of violence in all societies, spurred by a wide variety of motives including religious bigotry" and, ultimately: "The Tribunal is satisfied that the applicant has not suffered harm [that is, in context, on account of religious discrimination], let alone harm amounting to persecution, in the past. It is satisfied that the chance of such harm befalling him in the reasonably foreseeable future is remote. It follows that the Tribunal is not satisfied that the applicant's fear of persecution for a Convention reason is well-founded." It is, in my opinion, a safe conclusion that the Tribunal took the view that the applicant had only a remote chance of suffering harm from anybody on account of religious discrimination. The state's capacity to protect him against such harm was therefore legally irrelevant. No operative legal error has been made out.

Other grounds 31 It was submitted for the applicant that the Tribunal erroneously found that "severe" beatings did not amount to persecution. Assuming that this may reflect an error of law in adopting an unduly high test, in the light of my other conclusions, any such error was immaterial. In this case, the error in relation to the way the Tribunal classified the beatings that the applicant received in the second and third incidents and possibly the fourth incident does not have any consequence in the ultimate decision (c.f. Thiyagarajah), as the Tribunal found that each of those attacks was not motivated by Convention reasons. 32 It was also claimed by the applicant in his application for review that there were inconsistent findings in relation to the harm suffered by the applicant. The Tribunal stated that it "is satisfied that in each of the last three incidents detailed above the applicant suffered harm (which on no occasion was of a type or severity that could be called persecution)" and, later in its reasons, that it "is satisfied that the applicant has not suffered harm, let alone harm amounting to persecution, in the past." However, as counsel for the respondent submitted, these two statements are not inconsistent if the second statement is read in context: see para 29 above. 33 A number of criticisms were made of the Tribunal which simply had nothing in the Tribunal's reasons to support them. These were: · the Tribunal wrongly assumed that persecution cannot arise unless it is motivated solely by a Convention reason; · that the Tribunal wrongly assumed that persecution of the applicant could not arise if it were also experienced by others undertaking the same trade; and · that the Tribunal wrongly assumed that the applicant's refusals to hang posters as requested by his accosters could not be Convention-related simply because the posters which the applicant was employed to hang were of a purely commercial nature. 34 It was next submitted that the Tribunal wrongly assumed that the applicant's claim that he "escaped from Lebanon simply as a consequence of the fourth incident is something that cannot be determined: there is only the applicant's assertion that this is so." However, if this statement does show an erroneous approach (and I need not express an opinion), it did not affect the Tribunal's decision, since the Tribunal concluded that the fourth incident was not Convention-related. 35 It was submitted that the Tribunal had failed to determine whether or not the incidents which the Tribunal accepts that the applicant faced in Lebanon played a substantial part in his decision to leave and seek refugee status in Australia. However, as the Tribunal did not accept that the events that the applicant faced in Lebanon had been Convention related, this inquiry was not necessary. 36 It was finally submitted that the Tribunal failed to justify in any way the relevance of the differentiation it made between a Maronite and an Orthodox Christian. This differentiation was made by the Tribunal to support its conclusion that it did not believe that the arrival of the Pope was of any relevance to the applicant's claim and that he was merely using that event to "cloud the issues", he being of the Greek Orthodox faith, so that the arrival of the Pope in Lebanon could not have had any great impact upon him. The distinction played no other part in the decision of the Tribunal. There was no need for the Tribunal to deal any further with the matter. No error is made out in this regard.

Disposition 37 For these reasons the application is dismissed and the applicant is to pay the respondent's costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Solicitor for the respondent: Australian Government Solicitor