MZAFR v Minister for Immigration and Border Protection

BACKGROUND 4 The appellant is a national of Lebanon and she is a Sunni Muslim. She arrived in Australia as the holder of a Class TR subclass 676 Tourist visa on 5 August 2012. She applied for a Protection (Class XA) visa under s 65 of the Act on 2 November 2012. She was interviewed by a delegate of the Minister for Immigration and Border Protection on 10 December 2012. The delegate refused her application for a Protection visa on 20 December 2012. 5 The appellant made an application to the Tribunal for a review of the delegate's decision and she was invited to appear before the Tribunal on 8 August 2013. The appellant appeared before the Tribunal and she gave evidence and made submissions. The Tribunal also heard oral evidence from the appellant's brother-in-law. In relation to her review by the Tribunal, the appellant was represented by a registered migration agent. 6 The appellant claimed to have a well-founded fear of persecution from an Alawite man with whom she had a relationship (Mr E). She claimed to have suffered domestic violence at the hands of Mr E. An element of her claim was that, on one occasion, Mr E had approached her and threatened her and, in the course of that, he had grabbed her by the throat. This incident was the alleged assault which is referred to in paragraph 1(b) of the appellant's notice of appeal. 7 The appellant also claimed to have a well-founded fear of persecution because of her Sunni religion and her imputed and actual political opinion. 8 On 6 May 2014, the Tribunal affirmed the decision not to grant the appellant a Protection visa. 9 On 10 June 2014, the appellant brought an application for judicial review in the Federal Circuit Court. As I have said, on 24 March 2017, the Federal Circuit Court made an order dismissing the appellant's amended application for judicial review dated 2 December 2016 (MZAFR v Minister for Immigration & Anor [2017] FCCA 430).

Background 10 The appellant made a statutory declaration on 1 November 2012. The Tribunal member asked the appellant a number of questions about the statements she made in the statutory declaration and it is convenient to summarise the statement at the outset. 11 In the statutory declaration, the appellant said that she met Mr E at university in Zahriya and they became friendly. She said that they began to "develop feeling for each other and spend time together both in school and outside school". She said that she then found out certain things about Mr E which caused her to take steps to avoid meeting him as much as possible. First, she discovered that he was a cousin of the "biggest thug" in the north of Lebanon. Secondly, she discovered there were differences in their beliefs and tensions between Sunnis and Alawis. She had been unaware that Mr E was from the Alawi sect. The appellant decided to end her relationship with Mr E. He was very upset and explained to her that he loved her. She then began to see a different side of the man. He began stalking her by following her in his car. He threatened her with harm if she did not agree "to be with him". He fired a gunshot in the air and sped off leaving a massive speed mark. He repeatedly told the appellant that if he could not have her, then nobody could. Her telephone at home would ring constantly throughout night. At that time, she was staying with one of her brothers. 12 As to the alleged assault, the appellant said the following (at [6]): In Lebanon it is very common for girls to be kidnapped and once a man takes their virginity she is classified as his. She cannot return to her parents' house as she would be classed as his wife already, [Mr E] and many of his friends have threaten me on many different occasions that I will be his. On one occasion [Mr E] was waiting for me in the downstairs lobby of my brother's apartment where I lived during the school year as I was trying desperately to exit the building as he looked very angry yelling and swearing at how he believed I had broken his heart. He grabbed me by the throat and pulled me up against the wall and said to me nobody plays games with me, you will be with me whether you like it or not. I couldn't believe he was choking me and I tried frantically to get his hand off with no luck. Then a man from the building we lived in intervened and [Mr E] finally let go, leaving me gasping for air. I thought that [Mr E] was a nice guy initially but leading up to the couple of weeks before I arrived in Australia I saw his possessive, violent side and it was very scary. 13 The appellant said that the authorities in Lebanon cannot protect her from Mr E. 14 The following important matters emerge from the appellant's statutory declaration: (1) It was some time after the appellant met Mr E that she discovered that he was an Alawite man; (2) After they "broke up", Mr E harassed the appellant by following her in his car and telephoning her brother's house many times; and (3) There was the incident outside her brother's apartment during which the appellant was threatened and assaulted by Mr E. The appellant's evidence before the Tribunal was that the assault, the gunshot and the speeding off was all part of the one incident. 15 The appellant submitted that at no time during the hearing before the Tribunal did the Tribunal identify the occurrence of the alleged assault as an issue and that, having regard to its subsequent conclusions, it was required by s 425(1) of the Act to do so. The appellant relies on the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 (SZBEL). 16 In view of the ground of challenge, it is necessary to consider the course of the hearing before the Tribunal in detail.

The Hearing 17 At the outset of the hearing, the Tribunal member identified three issues which he said that he would be focussing on during the hearing. He identified those issues as follows. First, the Tribunal would be focussing on the appellant's claims of what had happened to her in the past and on Mr E who she said had harmed her in the past. The Tribunal member said that he would spend most of his time on this matter. Secondly, the Tribunal member would consider whether anything might happen to the appellant in the future should he accept what the appellant said about what had happened to her in the past. Thirdly, the Tribunal, if it accepted that the appellant might be at risk of serious or significant harm if she were to go back to her home area in the north of Lebanon, would consider whether she could relocate to another part of Lebanon. 18 The Tribunal member asked the appellant a number of background questions. He then asked the appellant to explain the circumstances in which she met and got to know Mr E. The appellant told the Tribunal that she did not know at the time she met Mr E that he was from the Alawi sect. She discovered that fact after knowing him for about three months. The Tribunal tested the appellant about her lack of knowledge of Mr E's religious background for three months. At one point, he told the appellant that he found her evidence on this topic "hard to believe". The appellant told the Tribunal that Mr E did not accept the appellant's statement that she could no longer see him. He began stalking her in his car and calling her home late at night. She told the Tribunal that if her brother answered the telephone, then the man would hang up. The Tribunal member tested the appellant on the following matters: whether Mr E was actually threatening her or her brother; her assertion that Mr E was stalking her in his car in view of the fact that a number of streets in Tripoli are very narrow; and the suggestion implicit in her evidence that an Alawite man would not be afraid to drive around the Sunni parts of Tripoli. 19 The Tribunal member asked the appellant to describe the incident during which she was assaulted by Mr E and she did that. The Tribunal member then asked whether there were any other incidents that the appellant wanted to tell the Tribunal about and she responded that there were no other incidents. 20 The Tribunal member questioned the appellant as to the reasons she could not return to Lebanon. He suggested to the appellant that Mr E was not brave enough to do anything in the street and referred to the fact that Mr E, on her account of the alleged assault, had left as soon as a neighbour had seen him. The Tribunal member said (at transcript p 23): What I mean is that he would - on one occasion he was choking you but as soon as a neighbour saw what was happening, he ran away. And another occasions he would call you but he would say, "Wrong number" and hang up and he wouldn't do anything more. Or your brother would pick up the phone and then [Mr E] would hang up. So why do you think [Mr E] will harm you if you go back? 21 The appellant said that she had been told that Mr E was still checking the university and the house to see if the appellant was there. 22 The Tribunal member then heard evidence from the appellant's brother-in-law. After he had heard that evidence, he resumed hearing evidence from the appellant. He reintroduced his taking of evidence from the appellant with the following comments: All right. Now, there are a couple of things that I need to think about. I need to think whether I accept them. The first one is that for two or three months while you were with [Mr E] that his religious background did not come up as a topic. And that you were spending time with his friends and, again, neither your religious background came up, nor his religious background came up. That's the first thing. The second thing is that apart from the incident where you say that [Mr E] was trying to choke you, there was no other incident where he was actually violent, and as I said to you earlier, whenever your brother picked up the phone at home, he would hang up. So it doesn't seem to me that he was - it seems to me that he was actually scared. He was perhaps obsessed with you but he was scared of your brother and that's why he hung up every time your brother picked up the phone. [Mr M], I will give the applicant an opportunity to respond first, and then you can say whatever you wish to say as well. And the third thing is I'm not sure - I need to think about this new claim about strange people being - standing in front of the house and the claim that your sister-in-law somehow knew that there were - either [Mr E] or people related to [Mr E] who were waiting for you to return back to this house in circumstances where you have been here for 12 months now. 23 The Tribunal member then raised his concerns about the appellant's evidence that she had not discussed with Mr E their respective religious backgrounds in the first three months of their friendship. He also expressed his concern about whether Mr E was likely to engage in harmful behaviour. He said: Okay. All right. And the other thing which we talked about earlier a little bit as well, is it seemed to me that he wasn't that brave, and perhaps he lost his cool on one occasion and he tried to choke you but otherwise he ran away as soon as the neighbours saw what he was doing. And given when your brother picked up the phone he would hang up. So it seems to me that he didn't actually intend to harm you seriously. 24 The Tribunal then heard submissions from the migration agent and, in the course of that, the Tribunal member said the following: Yes. I'm sorry if it came out in that way. I was certainly not suggesting in any way that that behaviour is acceptable or that if he did that to you that that's okay or that you didn't have every right to be absolutely terrified of him. That's not how I meant it to - what I meant at all. What I meant was that perhaps he lost his cool on one occasion but that was soon after the breakup, but that he would not engage in any of that behaviour any more. And I understand you disagree with that proposition so there's no need to for you repeat that. I understand what's being put to that.

THE DECISION OF THE TRIBUNAL 25 The appellant's two claims before the Tribunal were framed as follows: (1) The appellant was a member of a particular social group, women, and she feared harm (characterised as domestic violence) from a man (Mr E) with whom she had had a relationship. The State would not protect her; and (2) The appellant had a well-founded fear of persecution because of her religion and political opinion (actual or imputed). 26 The second claim was rejected by the Tribunal and it is not relevant on the appeal. I do not need to refer to it further. 27 With respect to the first claim, the Tribunal accepted the appellant's account of her family circumstances and that she studied in Tripoli and lived with one of her brothers and his family. 28 The Tribunal accepted that the appellant and Mr E had contact with each other and that the latter had a romantic interest in the appellant. The Tribunal rejected the appellant's account of the events following the "breakdown" of the "relationship", including the alleged assault. It did so because it found significant aspects of the appellant's evidence to be vague and, in light of the country information, implausible. The Tribunal said (at [28]): The Tribunal accepts that there was a man called [Mr E] whom the applicant met at university in March 2012 (the second semester of the university year) and that he gave her some textbooks. The Tribunal gives the applicant the benefit of the doubt and accepts that they used to talk and see each other at university and that [Mr E] had a romantic interest in the applicant until they realised that one of them was Sunni and the other one Alawi. For the reasons that follow the Tribunal does not accept that [Mr E] (or any of his relative, friends or associates) pursued the applicant in order to convince or coax her into marrying him, that he was ever threatening, abusive or violent, that he fired his gun, that he stalked her or did anything else that may have made her apprehensive about her safety. The Tribunal found significant aspects of the applicant's evidence to be vague and, in light of the country information, implausible. 29 The Tribunal then identified aspects of the appellant's account which it found implausible or with respect to which it found an inconsistency. The following is a summary: (1) The appellant's evidence as to how she found out that Mr E was an Alawite man was contradictory; (2) The appellant's evidence as to the timing of the change in Mr E's behaviour and her departure from Lebanon was inconsistent; (3) It was implausible that the appellant would have had the relationship she claimed with Mr E and, at the same time, not asked about his background. She did not have the relationship with Mr E that she claimed; (4) It was implausible that Mr E or his associates would be checking the brother's house as the appellant claimed and yet would not have approached the appellant's relatives; (5) There was an inconsistency in her evidence about the alleged assault. In her statutory declaration she said the neighbour intervened, whereas in her evidence she said the episode was brought to an end when Mr E saw the neighbour; (6) An important element of the Tribunal's reasoning was the conclusion supported by country information that it was highly unlikely Mr E would harass the appellant in a Sunni area. The Tribunal concluded that (at [44]): In light of the applicant and the witness's evidence and the country information, the Tribunal therefore considers it highly implausible that [Mr E] would have ventured into a Sunni area, repeatedly and stalked the applicant, shot up in the air in anger, choke the applicant in front of her house and in the months since she left the country show up in front of the house armed. (7) It was unlikely that Mr E would engage in the conduct alleged, including choking the appellant, and at the same time, the appellant would not engage the assistance of family and relatives; and (8) The appellant's evidence and that of her witness as to what Mr E was and was not prepared to do was illogical. 30 The Tribunal concluded that there was no real chance that the appellant would be kidnapped and forced to marry Mr E or be raped by him. It concluded that the appellant did not face a real chance of persecution for any reason.

THE DECISION OF THE FEDERAL CIRCUIT COURT 31 With respect to the ground of appeal before this Court (Ground 4 before the Federal Circuit Court), the primary judge set out the background to the ground of review, passages from the transcript of the hearing before the Tribunal and passages from the relevant authorities, including SZBEL. The primary judge said that she was satisfied that there were two issues which arose in relation to the decision under review which were not previously raised. She identified those issues as follows (at [68]): a) whether was (sic) there was a relationship between the Applicant and Mr E, as claimed by the Applicant; and b) whether the Applicant suffered from serious harm at the hands of Mr E, as claimed by the Applicant. The issue identified in paragraph b) includes the alleged assault. 32 Her Honour then identified key findings made by the Tribunal. In particular, her Honour referred to the Tribunal's findings in paragraph 28 of its reasons which I have set out above (at [28]). 33 The primary judge then said (at [74]-[75]): I have read the whole of the transcript. As is recognised by the authorities, the way in which a Tribunal member may sufficiently indicate to an Applicant that there is an issue with his or her claim which has not previously been raised, will vary. Tribunal members will have different approaches to this task. It is clear that they must strike a balance between putting question or making comments to an Applicant which might suggest the member has already made up his or her mind and engaging in a process of questioning which both elicits an Applicant's evidence in relation to his or her claims and, if necessary, indicates to the Applicant where there may be concerns about his or her claims, so that the Applicant has an opportunity to respond to these concerns. Focusing on particular extracts of the transcript may not be helpful, as a Tribunal member may return to a particular issue. The Tribunal is not obliged to provide an applicant with a running commentary about what it thinks of the applicant's evidence (SZBEL at [48]). Whether a Tribunal has afforded an Applicant procedural fairness will also depend on the individual circumstances of the Applicant. In this case, the Applicant has a reasonable level of education. She was attending university in Tripoli. She relied on an interpreter, however, the transcript reveals a person who was overwhelmingly responsive to the questions asked by the Tribunal Member. 34 The primary judge said that she was satisfied that the Tribunal had sufficiently drawn the appellant's attention to the issues which were dispositive of her claim. 35 The primary judge noted that the Tribunal made it clear to the appellant at the outset that the main focus of his questions would be her claims involving her relationship with, and the harm she suffered at the hands of, Mr E. 36 The primary judge said that the appellant claimed that she was romantically involved with Mr E until she discovered that he was an Alawite man. She terminated the relationship whereupon he engaged in acts which caused her harm. The primary judge said that a critical claim or integer of claim underlying the appellant's claim to fear persecution or significant harm was her claimed ignorance of Mr E's religious background. The primary judge said that the Tribunal made it clear to the appellant that there was an issue as to whether she had the relationship with Mr E which she claimed. The primary judge said (at [80]): … I should note that, it would logically follow from this that her claims of harm from Mr E were an issue because they depended on his reaction to losing the alleged romantic liaison. 37 The primary judge said that as to the appellant's claims that she had suffered harm at the hands of Mr E, the fact that the Tribunal member followed the appellant's evidence by saying "okay", and on occasions summarised the appellant's evidence, did not indicate that he accepted the evidence. That submission was not repeated on appeal and I think for good reason. The primary judge was plainly correct as to that matter. 38 The primary judge said that the Tribunal member drew the appellant's attention to the fact that he had issues or concerns with her claims and the primary judge referred to the Tribunal member clarifying the elements of the alleged assault, the questions about Mr E stalking the appellant in his car and the suggestion that Mr E, who was an Alawite man, was not afraid to drive around the Sunni parts of Tripoli. 39 The primary judge said that the appellant was on notice that the alleged stalking of the appellant by Mr E in his car and his driving around in Sunni areas were issues and they, in turn, were "directly relevant" to the appellant's claim that Mr E had attempted to choke her and had stalked her (at [82]). 40 Further, the primary judge said that it was clear that the Tribunal member expressed his concern with the plausibility of the appellant's claim to fear harm from Mr E should she return to Lebanon (at [85]). 41 The primary judge expressed her conclusions as follows (at [86]): … I am satisfied that the Tribunal Member sufficiently drew to the Applicant's attention that he considered the following to be live issues: a) the premise upon which her claim that she had a relationship with an Alawi man, Mr E, was based. This premise was her ignorance of Mr E's religious background; b) the plausibility of her claims that Mr E stalked her using his car and entered into a Sunni area of Tripoli to assault her and stalk her; c) his disbelief that Mr E or an associate would attend on her relatives' house, some 12 months after her departure; and d) his disbelief that, were the Applicant to return to Tripoli, Mr E, either by himself or assisted by powerful allies, would enter into a Sunni area to kidnap her. 42 The primary judge said that these issues were "dispositive to the Tribunal's decision". She held that the appellant was given an opportunity to respond to these issues during the hearing by giving evidence and making submissions through her legal representative. 43 The primary judge held that the appellant had not been denied procedural fairness.

ANALYSIS 44 An applicant is entitled, in the absence of any indication to the contrary, to proceed on the basis that the issues dispositive before the delegate are the issues on the review before the Tribunal (SZBEL at [35]). In this case, there is no need to consider the reasons of the delegate because the primary judge found that whether the appellant suffered from serious harm at the hands of Mr E as claimed by the appellant was an issue not previously raised (see [31] above) and there is no challenge to that conclusion. It was incumbent on the Tribunal to identify the issue to the appellant. 45 In SZBEL, the High Court referred to the Tribunal identifying the issue to the applicant (at [35]), telling the applicant something different (at [36]) or warning the applicant to the contrary (at [37]). The High Court made the point that there may be cases where it will be clear to the applicant that everything he or she says is in issue. In addition, the Court said there is no "one way" of indicating to an applicant that a matter is in issue. 46 The High Court made both these points in the following passage (at [47]): First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 47 Finally, the High Court said that the obligation to accord procedural fairness does not require the Tribunal to provide a running commentary upon what it thinks about the evidence that is given (at [48]). 48 It seems to me that it is appropriate to analyse the circumstances in this case in the following way. The first question is whether the occurrence of the assault was a dispositive issue. The second question is whether the matter was identified by the Tribunal as an issue with respect to which the Tribunal may not accept the appellant's evidence. This second question raises a number of sub-questions. First, was the matter expressly identified as an issue? Secondly, if not, was it raised by reason of the fact that the Tribunal made it clear that many of the appellant's claims were in issue such that it was or should have been clear to her that everything she said was in issue? Thirdly (and perhaps related to the second sub-question), if the assault was not raised directly, was it raised by reason of the fact that the Tribunal raised another issue which was logically intertwined with the assault? By logically intertwined, I mean that by raising another matter as an issue, the Tribunal must also be raising the assault as an issue. 49 As to the first question, it seems to me that the Tribunal did not accept that the assault occurred. That emerges from the paragraphs of its reasons which I have set out above (at [28] and [29(6)]). Furthermore, it seems to me that it was a dispositive issue. The dispositive issues are not simply the Tribunal's final conclusions expressed in terms of the statutory criteria. That is clear from the decision in SZBEL. I think that it is a dispositive issue if it is a fact or collection of facts of importance to an element of the claim. That criteria is satisfied in this case because the assault was the one and only occasion of alleged physical aggression. Furthermore, its acceptance or rejection might well have a material bearing on other important issues in the case. 50 As to the second question, I do not think that the occurrence of the assault was directly raised by the Tribunal as an issue. 51 The appellant was certainly put on notice by the Tribunal that a number of aspects of her account were in issue. The most significant of those aspects were the following: (1) The exact nature of her relationship with Mr E and whether she and Mr E had discussed each other's religious backgrounds; (2) That Mr E would stalk her in his motor vehicle; (3) The Mr E would drive into Sunni parts of Tripoli; and (4) That Mr E was brave enough to do her harm. Despite these matters, I do not think that it can be said that it was sufficiently clear that all matters advanced by the appellant were in issue for the following reasons. First, I do not think it was suggested to the appellant that she had not met Mr E at the university. Secondly, although the point should not be overstated, when raising what was clearly an issue, the Tribunal member on at least one occasion expressly excluded the assault (at [22] and [24]). 52 Finally, it was suggested by the respondent that the nature of the relationship was in issue and that should have indicated to the appellant that the occurrence of the assault was in issue because the nature of the relationship bore on the likelihood of the assault. That is true to a point, but as it happens, the Tribunal found (albeit saying that it was giving the appellant the benefit of the doubt) that the appellant and Mr E met periodically and that Mr E had a romantic interest in the appellant. I reject the respondent's submission. The position might be different if it was made clear to the appellant that whether she had had any contact with Mr E or whether either had shown any possible romantic interest in the other was in issue 53 Not without some hesitation, I think the assault was not identified as an issue arising in relation to the decision under review for the purposes of s 425(1) of the Act.

CONCLUSION 54 The appeal must be allowed and the orders made by the Federal Circuit Court on 24 March 2017 set aside. In lieu of those orders, there will be orders quashing the decision of the Tribunal and remitting the matter back to it for determination in accordance with the law. I will hear the parties as to costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.