MZYHO v Minister for Immigration and Citizenship

The Tribunal 5 The Tribunal found the following points which are presently material, that: the appellant is a Lebanese citizen; the appellant may have worked in the construction company as indicated, but has not obtained a profile which would attract the attention of the group; there was a network of tunnels below the camp used by the group to store weapons and equipment; the appellant was not engaged in work at the camp; the appellant was not in possession of any special information about the tunnels which he could pass on to the Army; Mr Khoder did not work at the camp and he was not killed by the group; there was no connection between the death of Mr Khoder and the group; the appellant would not be targeted by the group; if it was wrong in its findings above, the appellant was able to obtain adequate state protection. 6 The Tribunal concluded that the appellant did not have a well founded fear of persecution.

The Federal Magistrates Court 7 The Court below rejected the appellant's application for judicial review. Two aspects of that rejection are relevant to this appeal. 8 The appellant claimed below that the Tribunal failed to deal with a claim made by him and misunderstood evidence concerning that claim. At [33], his Honour observed: This ground constituted an attack upon the Tribunal's finding that it was implausible that Fatah al-Islam would be so lacking in caution as to prevent workers from outside the camp entering it or to engage such workers. 9 The court below referred to an exchange between the Tribunal and the appellant on this issue. At [47], it referred to the issue of the identity of the people the appellant said he spoke to, being group members or otherwise and the alleged confusion about this issue before the Tribunal. 10 At [50] to [57] of its reasons, the Court dealt with the issue of "state protection". It noted at [51] the appellant's submission that the Tribunal's finding about adequate state protection referred only to one of the appellant's claims, being his fear of persecution by reason of his former membership of the army. His Honour rejected that submission. At [55], he said: Given the way the Tribunal set out its conclusions in this regard it seems clear to me that the Tribunal's finding as to adequate state protection clearly encompassed both facets of the applicant's claimed fear of persecution to the extent that they could in truth be said to be different. Reading the materials as a whole, the clear focus of the applicant's claimed fear arose from his having disclosed the existence of the tunnels to the army during the conflict that was taking place in the camp. The Tribunal's finding of state protection, in my view, clearly addressed all aspects of the applicant's claim.

Submissions of appellant and grounds of appeal 11 The appellant contends in his first ground of appeal that the Federal Magistrate erred in construing the appellant's evidence to the Tribunal that he engaged with Fatah al-Islam militants in early 2006, in circumstances where this would not have been possible since the evidence before the Tribunal was that Fatah al-Islam did not come into existence until November 2006. The appellant contends that on a proper construction of the evidence before the Tribunal the Federal Magistrate ought to have found that the Tribunal made a finding that was not open to it. 12 The appellant's counsel, submitted that the Tribunal had erroneously identified the people who the appellant said had befriended him in early 2006. Counsel points out that the people could not have had any connection to the group because it did not exist at the time. 13 In the Court below, the Federal Magistrate acknowledged at [36] that it was common ground that the work on the tunnels allegedly took place in early 2006, whereas Fatah al-Islam did not, according to country information, come into existence until approximately November 2006. On this basis, the Federal Magistrate found that any finding by the Tribunal that Fatah al-Islam had anything to do with the work on the tunnels was incorrect. However, his Honour found that having regard to the oral evidence provided by the appellant at the Tribunal hearing, it was understandable how the Tribunal came to make this error. In particular, the Federal Magistrate outlined at [37], a number of responses provided by the appellant at the Tribunal hearing, including the below response: MS URQUHART: How do you think that the Fatah al-Islam knew that you worked for Mr Khoder at his excavation company? THE INTERPRETER: We worked there for a couple of months there and they used to come and go and check about what we're doing, and they used to come with coffee or tea or some lunch sometimes. 14 In this regard, at [40]-[41], his Honour stated: 40. In my view, in the face of these answers, the error by the Tribunal was scarcely surprising. It adopted the applicant's own answer to a direct question as to how it might be that Fatah al-Islam knew who he was. While it is true that he characterised the people he met as normal civil people, these were the people he identified as knowing where he lived and therefore would be likely to harm him. 41. In the circumstances, any error of characterisation as to the actual identity of those with whom the applicant spoke arose only from what the applicant himself told the Tribunal. I do not think this can be characterised on any view as jurisdictional error, even though the ultimate finding was on one view wrong. Nonetheless, on another view it might be thought to be implicit in the answers that the applicant gave that those who spoke to him over the months that he worked at the camp were those that he now feared, whether they were called Fatah al-Islam or not. 15 Nevertheless, given the findings of the Tribunal that the appellant did not perform work at the camp, if the Tribunal made any factual error in this regard it was an error that made no difference to the result before the Tribunal as the error was not jurisdictional. In Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51, North and Lander JJ (with whom Katzmann J agreed) said at [28]: However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant's claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant's claim: … 16 The appellant contends that there was no evidentiary basis at all for the finding that the appellant did not work at the camp. Counsel relies on the judgment of the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ. Counsel submits that no tribunal or logical decision maker could have arrived at the finding that the appellant did not work at the camp. Counsel contends it was not open for the Tribunal to say that the appellant would not have worked in the camp. However, in that regard, I agree with the observations of His Honour below at [41] set out at [14] above. That testimony was evidence upon which reasonable minds might differ, as to the significance of material put by the appellant asserting a connection with the group at the camp; see SZNPG at [51] per Katzmann J. 17 There was evidence before the Tribunal to support the view that the appellant had contacted persons who became members of the group and that they had spoken to the appellant at the camp. So much is set out at [37] to [39] of the reasons for judgment below. 18 In the appellant's second ground of appeal the appellant contends that the Federal Magistrate erred in construing the Tribunal's finding about state protection as encompassing all aspects of the appellant's claim for protection. The appellant contends that having regard to the evidence, the Federal Magistrate ought to have found that this finding was limited to the appellant's fear of persecution because of his membership of the Lebanese army, and that it did not extend to his fear of retribution from the Fatah al-Islam militant group arising from his work in the camp in early 2006. 19 Counsel for the appellant submitted that the effective state protection issue was not examined by the Tribunal in the context of the claim by the appellant to be a member of a particular social group of former employees of the construction company. A fair reading of the Tribunal's decision on the question of state protection leads to a rejection of that submission. 20 In the Court below, the Federal Magistrate rejected the appellant's contention that the Tribunal's finding in relation to state protection only related to one part of the appellant's fear of persecution, being his membership of the Lebanese army at [51]. Instead, the Federal Magistrate held at [52]: 52. …The Tribunal characterised the applicant's fear of claimed harm and retribution by way of revenge as being "membership of a particular group being members of the Lebanese army who were instrumental in the Nahr al-Bared strike... . 21 The Federal Magistrate was correct in finding at [55] that the Tribunal's decision in this regard, covered all aspects of the appellant's claim. In particular, at paragraphs [101-103] of its decision, the Tribunal stated: 101. …The Tribunal does not accept that he has a well founded fear for the Convention based reasons of political opinion, imputed political opinion or membership of a particular social group being members of the Lebanese Army who were instrumental in the Nahr al-Bared strike… 102. The applicant has claimed that he is also at risk as a former member of the Lebanese army in particular because of his membership of a particular social group being members of the Lebanese Army who were instrumental in the Nahr al-Bared strike. He believes that State or Lebanese government is unable to provide him protection as terrorists can strike at any time in ay place. However the applicant has not claimed any harm or mistreatment from the Lebanese authorities… 103. The Tribunal has found that the applicant does not have a real chance of serious harm on the basis of his political opinion or imputed political opinion or membership of a particular social group being members of the Lebanese Army who were instrumental in the Nahr al-Bared strike. However, even if the Tribunal were wrong, country information referred to above supports the view, that the Lebanese authorities are prepared to take action against groups or individuals engaged in terrorist activities. The Tribunal finds no evidence to support the view that the authorities would be unwilling or unable to provide adequate state protection to the applicant should this be necessary… 22 The passage at [103] of the reasons for decision for the Federal Magistrate commencing with "However, even if the Tribunal were wrong …" , should not be read by reference to only the immediately preceding sentence but to the entirety of what went before that in the reasons. It would be entirely illogical for the Tribunal to consider, in any event, that effective state protection could be afforded by reference to a claim to be a member of one of the two relevant social groups but not to the other. If the appellant is in danger as a former employee of the construction company, it could not be realistically suggested that the state is less able to protect him than if he faced persecution as a result of being in the army as late as in 2008. As was found in Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ, and per Kirby J at 291, the reasons of an administrative decision maker should not be scrutinized in an over zealous judicial review in order to glean some inadequacy in the way the reasons are expressed. 23 As no appealable error can be found in the judgment of the Federal Magistrate, it therefore follows that the grounds of appeal are not made out.

Conclusion 24 For the above reasons the appeal is dismissed, with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.