FEDERAL COURT OF AUSTRALIA

El Hejjar v Minister for Immigration & Multicultural Affairs [1999] FCA 1331

MIGRATION – protection visa – application for order of review of decision of Refugee Review Tribunal – whether no evidence to justify the making of the decision – where finding by Tribunal that there was no evidence before it of a particular fact – whether there was evidence before Tribunal establishing that the particular fact did exist – whether failure to follow procedures required by Migration Act 1958 – whether failure to give adequate reasons – whether failure to respond in written reasons to report in evidence before Tribunal constituted to failure to comply with s430 Migration Act 1958 – whether report constituted apparently probative material relevant to a material issue

Migration Act 1958 (Cth), s476(1)(g), s476(4)(b), s476(1)(a), s430

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1126, cited

ELIE JAMIL EL HEJJAR

v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N600 OF 1999

EMMETT J

13 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Lebanon who arrived in Australia on 25 April 1998.  On 30 July 1998, he lodged an application for a protection visa.  On 12 August 1998, a delegate of the Minister for Immigration & Multicultural Affairs (“the Minister”) refused to grant a protection visa.  The applicant, therefore, sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  On 10 May 1999, the Tribunal affirmed the decision not to grant a protection visa.  The applicant has now sought review of the decision of the Tribunal in this Court under the provisions of Part 8 of the Migration Act 1958 (Cth) (“the Act”).

2                     One of the criteria for a protection visa is that, at the time of the decision, the decision-maker must be satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Convention”).  Under the Convention, a refugee is defined relevantly as:

“A person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

3                     The applicant bases his claim for a protection visa on his contention that he has such a well-founded fear.  The Tribunal had before it claims made by the applicant, in his original application and in the course of an oral hearing before the Tribunal, concerning his circumstances in Lebanon.  The Tribunal accepted the account given by the applicant.

BACKGROUND

4                     The applicant was one of four sons born to Christian parents.  He took a degree in business management, graduating in 1992.  He described his occupation as an accountant.  From March 1993 to December 1997, he worked as a “salesman clerk” for Reecha Dental Clinic.  In the course of his employment, the applicant travelled throughout Lebanon in a van, supplying dental goods to dentists and pharmacists from the stock he carried, or taking and delivering orders.  Unknown to him, the applicant's employer had for many years been trading with dentists in the security zone occupied by Israel in southern Lebanon.  In late 1996, the applicant's employer offered to pay the applicant more highly if he would also sell goods into the security zone.  Attracted by the extra money, the applicant agreed.  He began to trade in the area and supplied three dentists and one pharmacist, visiting the zone about twelve times over the next eighteen months.  One of the dentists gave him an introduction to customers inside Israel and he supplied them too.

5                     Just before Christmas 1997, after he had made arrangements to visit Australia for a holiday and had obtained his visa, the applicant was on the road when a woman from his employer’s office rang him on his mobile phone and said that the army had come and taken away his boss.  Suspecting the reason, the applicant did not go back to the company premises and went straight to Beirut where a friend had a chalet.  He was advised that his name was on the list of wanted persons kept at the airport.  The applicant said that, for three months, he remained concealed and frightened.  When his cash ran out, he tried to withdraw money from his US dollar account with the Arab Bank but he was informed that it had been frozen by court order.  The bank confirmed that in writing to the applicant at his father's address.

6                     Eventually, the applicant's father contacted an old school friend who was the head of security at Beirut Airport.  His family bought him an airline ticket and the family friend met them at the door of the airport terminal, taking the applicant's passport.  The applicant and his luggage were searched in the normal way and, at the entrance to the departure hall, the family friend gave him back his passport which had been stamped and told him everything was okay.  The applicant then travelled to Australia. 

7                     There was documentary evidence before the Tribunal indicating that the applicant was required to attend court in Lebanon to answer certain charges.  The particulars of the charges are not entirely clear from the material in evidence, which was accompanied by a translation.  The first of the documents is not dated.  It purports to be notification of service of a court ruling issued by the Zahlah Criminal Court on 6 January 1998.  The ruling is said to relate to "preliminary investigation on transfer of information related to national security and entry inside the border zone". 

8                     A second document purports to be a communication from Major General Emad Lahoud, Army Commander to the General Department of Internal Security Forces.  The document is an instruction to search for and investigate the applicant:

“accused of desertion from the Army being required for penal trial if not required or under arrest for another crime.”

The document also provided:

“On reviewing our records, it was shown that the defendant is required to appear in the Military Court for the crime of desertion from the Army during his trial.”

The document refers to “Military Public Prosecution 231/97” dated 22 February 1998.  The document itself is expressed to be endorsed on 19 August 1998.

9                     The third document, which bears an endorsement 12 April 1999 but no other date, is addressed to First Magistrate from the Ministry of Justice, Prosecutor General Zahlah Court of Appeals.  It was translated as follows:

“We, the Prosecutor General of Beqa Court of Appeals, having sighted the attached documents which are Preliminary Investigations

Since they indicate suspicion against the defendant

[the applicant]

That the defendant, inside the border strip and on a date not too long ago, smuggled and transferred secret information on national security in Lebanon beyond the border strip and inside Israeli lands and dealt with the Israelis,

A crime listed in the Lebanese Law

After sighting Articles 50 and 59 of the Penal Code, we request the Magistrate to issue an arrest order to search for him and conduct interrogation concerning the crime.”

10                  There was a question before the Tribunal as to the meaning of the second document in referring to “desertion” from the army.  The applicant informed the Tribunal that that document had been wrongly translated.  He said that the military is involved when security matters, such as trading with the enemy, are involved.  The document more accurately meant that the army is instructed to find him because he was accused of avoiding the army who were seeking him in the context of his intended trial for a criminal offence.  The Tribunal accepted the applicant's interpretation of the document and accepted that the applicant was not accused of desertion from the army in the way in which that expression would be understood in normal English. 

11                  The applicant contends that the Tribunal erred in two ways that would give rise to grounds for review under section 476 of the Act.  First, paragraph 476(1)(g), as explained by section 476(4)(b), is relied on.  Under those provisions, it is a ground of review of a decision of the Tribunal that there was no evidence or other material to justify the making of the decision.  Relevantly, however, that ground is not to be taken to have been made out unless the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.

12                  The second ground is that provided for in section 476(1)(a), namely, that the procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed.  Reliance is placed on section 430(1) of the Act which provides as follows:

“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that

(a)       sets out the decision of the Tribunal on the review and

(b)       sets out the reasons for the decision and

(c)        sets out the findings on any material questions of fact and

(d)       refers to the evidence or any other material on which the findings of fact were based.”

13                  I shall deal with each of the grounds in turn. 

NO EVIDENCE

14                  In its reasons, the Tribunal included the following paragraph:

“There is nothing in the documents produced by the applicant which indicates that the investigation into his conduct is anything other than a normal criminal investigation.  Initial inquiries have been made and he is wanted for questioning.  The independent evidence does establish that sometimes suspects may undergo mistreatment and even torture in the course of their interrogation.  However, there is no evidence that as a general rule, or in this case, those suspected of a security offence undergo any more rigorous treatment than those under investigation for other criminal offences, nor that the penalties are disproportionately severe.”

15                  The claimant contended that the last sentence in that paragraph gives rise to a complaint under section 476(1)(g).  In the course of its reasons, the Tribunal referred to a report of Amnesty International of 9 October 1997 entitled “Lebanon Human Rights, Developments and Violations” (“the Report”).  Counsel for the applicant drew attention to provisions of the Report, to which I shall refer shortly, in support of a contention that there was, in fact, evidence before the Tribunal which rendered the last sentence in the paragraph incorrect.

16                  It is apparent that there are, in effect, two statements in the sentence in question.  It might be broken up as follows:

(1)        there is no evidence that, as a general rule, those suspected of a security offence undergo any more rigorous treatment than those under investigation for other criminal offences; 

(2)        there is no evidence that, in this case, the applicant, being suspected of a security offence, would undergo any more rigorous treatment than those under investigation for other criminal offences.

17                  The thrust of the contentions for the applicant was that the Report, in effect, constituted evidence that those suspected of a security offence may well undergo more rigorous treatment than those under investigation for other criminal offences.  It is necessary to examine the provisions of the report in a little more detail in order to deal with that contention. 

18                  In a summary of the Report, the following appears:

“Amnesty International's report criticises the 1991 Amnesty Law and stresses the need for Lebanon to face up to its past and take steps to clarify the fate of more than 17,000 people, including 14,000 Lebanese nationals, who ‘disappeared’ during the civil war.  The report focuses on four areas: arbitrary political arrest and detention; the use of torture and ill treatment, particularly against security detainees held in the Ministry of Defence; violations in trials of political detainees almost invariably held before special courts, such as the military courts and the Justice Council, and the increasing use of the death penalty reinstituted in 1994.”

19                  Emphasis was placed on the second and third of those areas.  The second is dealt with in a section of the Report entitled “Torture and Ill Treatment”.  That section of the Report relevantly contains the following:

“Article 401 of the Lebanese Penal Code forbids torture and provides for punitive measures against officials found responsible for torture or ill treatment. 

Nonetheless, the fact that arrests are sometimes carried out by forces with no legal authority and the routine use of incommunicado detention have placed detainees at risk of torture or ill treatment.  Reports of torture and ill treatment received by Amnesty International relate to both political and criminal detainees.  Torture may not be routine practice but some groups are more likely to face torture because they are usually more targeted by the authorities.”

The Report indicates that scores of political detainees held in the Ministry of Defence had reported that they were tortured or ill-treated in detention.  A specific example is set out in the Report, which then goes on to say:

“This account is typical of many other testimonies received by Amnesty International from other detainees, particularly those held at the Ministry of Defence.”

20                  Under the heading “Violations of the Right to Fair Trial”, reference is made to the Military Court, where the following appears:

“Many of the cases monitored by Amnesty International were referred to the Military Court for trial.  The Military Court and the Military Court of Appeal are under the jurisdiction of the Minister of Defence who exercises over them the same authority which the Minister of Justice exercises over ordinary courts.  Most of the cases monitored of political detainees relate to civilians.”

Later, under that same heading, the following appears:

“Amnesty International is of the opinion that there are insufficient guarantees for a fair trial before the military court for the following reasons:

·        Despite being set up mainly to deal with cases related to the army and military personnel, the military courts have been granted a very wide jurisdiction over civilians.  If any of the defendants or plaintiffs is military personnel, the whole group will be tried before the Military Court.  Secondly, if any act or offence has been interpreted as posing a ‘threat’ to national security or ‘incitement to conflict’, the case has been placed under the jurisdiction of the Military Court (and non-violent leaflets indirectly referring to the Syrian presence or questioning the independence of the Lebanese state have fallen under this heading.)  It is because of this wide jurisdiction that the Military Court presides over cases which should otherwise have been tried by civil or criminal courts.  Such expansion of the jurisdiction of the Military Court is contrary to Lebanese legislation which does not give military personnel any legal authority over civilians.”

Then, towards the end of the section dealing with the Military Court, the following appears:

“In theory, military courts are bound to apply the [Code of Criminal Procedures] but in practice they frequently fail to do so.  Violations in pre-trial procedure, such as arrests without warrant, incommunicado detention and a denial of detainees’ access to lawyers have created an environment where other human rights violations may flourish.  In particular, the illegal nature of arrests, detention and interrogation carried out by military police and intelligence has led to numerous allegations of torture, particularly at the hands of military personnel.  Amnesty International is not aware of a single case where an investigation into a torture allegation was ordered by the Military Court.  In view of these considerations, the use of military courts has become an area of grave concern for Amnesty International.  This is particularly so since the military courts can and do pass death sentences, and the fact that proceedings have in the past led to the imprisonment of prisoners of conscience, sentenced for offences such as distribution of critical leaflets.”

21                  That material was relied on by the applicant as negating the sentence in question that I have referred to above.  The Tribunal, in its reasons, found that the applicant, if he returns to Lebanon, would have a real chance of being arrested for interrogation and that, in the course of that interrogation whether or not any breach of the law is established, there is a real chance that he would suffer harm which would amount to persecution.  The Tribunal was satisfied that the applicant's fear of such treatment is well-founded.

22                  It is, of course, horrific to think that the applicant would be in such a position.  However, it is only if such a fear, albeit well-founded, is a fear of persecution for one of the reasons specified in the Convention that Australia will owe protection obligations to the applicant.  The material in the Report confirms that there are grave infringements of human rights in Lebanon.  The question, however, is whether the Tribunal could be said to have made an incorrect statement in saying that there is no evidence that, as a general rule, those suspected of a security offence undergo any more rigorous treatment than those under investigation for other criminal offences.

23                  The material in the Report to which I have referred demonstrates that there are instances of those suspected of security offences being tortured, as indeed the Tribunal has found.  However, I do not read the material in the Report as demonstrating that, as a general rule, those suspected of a security offence undergo any more rigorous treatment than those under investigation for other criminal offences.  The Tribunal did not say that more rigorous treatment never happens.  If it had, it could not have reached the conclusion that it did that there is a real chance that the applicant would suffer harm which would amount to persecution. 

24                  Further, there was no material referred to on behalf of the applicant to indicate that, in the present case, the applicant, in particular, being suspected of a security offence, would undergo any more rigorous treatment than those under investigation for other criminal offences.  Indeed, the material in the Report indicates that infringement of human rights occurs not only in relation to security matters but for ordinary criminal matters as well.  Specifically, the statement that reports of torture and ill-treatment received by Amnesty International relate to both political and criminal detainees indicates that torture or ill-treatment is not limited only to security offences.

25                  There was some debate in the course of argument as to whether or not there was a fact contained in the sentence in question.  Counsel for the Minister, as I understood his arguments, accepted that section 476(4)(b) may well be satisfied in the event that a finding of a negative were made.  However, in order to demonstrate that section 476(4)(b) is made out, the applicant would need to show that there was, in fact, evidence either that, as a general rule, those suspected of security offences undergo more rigorous treatment or that the applicant is likely to undergo more rigorous treatment.

26                  Significantly, the Tribunal's comment is contained in a paragraph in which the Tribunal observed that there was nothing in the documents produced by the applicant to indicate that the investigation into his conduct is anything other than a normal criminal investigation.  In other words, the Tribunal did not consider that the documents gave rise to any inference that any prosecution to which the applicant may be subjected was for any reason contained in the Convention.

27                  In its reasons, the Tribunal reported that the applicant was asked why the court wanted him.  The applicant responded that it was because he had been dealing with Israel and his brother had told him that he was suspected of passing information to the enemy.  The applicant was asked which of the Convention reasons applied to his case.  He said that he considered that he was facing harm because of his political opinion that the people of southern Lebanon were citizens too and were entitled to enjoy all the rights that other Lebanese citizens enjoy, including trading freely with others in Lebanon.

28                  The applicant was unrepresented before the Tribunal and, accordingly, not too much store should be placed on that response.  Nevertheless, as I understand the contentions, no specific evidence before the Tribunal was referred to as suggesting that the prosecution of the applicant was in any way motivated by one of the grounds set out in the Convention. 

29                  Specifically, the Tribunal made the following finding:

“At the end of the hearing when asked by the Tribunal which of the Convention reasons he saw as the reason for the harm he feared, he said that he held the opinion that the Lebanese residents of the security zone were entitled to be treated like other residents of the country and should have access to similar trade opportunities and goods.  The Tribunal does not accept that it was this opinion, if indeed he held it, which led the applicant to undertake the activities he now fears may be the cause of his coming to harm, nor, more importantly, does it accept that this claimed opinion, or the belief that the applicant holds it, is the reason for the authorities' interest in him.”

That finding, coupled with the first sentence in the passage from the reasons that I have already quoted, appears to me to constitute a finding by the Tribunal that the reason for the prosecution of the applicant is not a political one or any other reason that would fall within the Convention.

30                  Such a finding having been made, there is another reason in my opinion why the applicant is unable to make out the ground contained in section 476(1)(g) as explained by section 476(4)(b).  That requirement is that the person who made the decision must have based the decision on the existence of a fact that did not exist.  Even if it be established that the fact stated, and which is the subject of the complaint, did not exist, I do not understand the Tribunal's reasons as constituting a conclusion that was based in any way on that fact.  Rather, the Tribunal considered that, to the extent that there is a real chance of persecution of the applicant, it is because he has committed offences against the law of Lebanon and not because of any political view he holds or any other Convention reason.

31                  It was suggested that, because of the circumstances to which I have referred, namely that the applicant was not represented, it was incumbent upon the Tribunal to examine the possibility that, notwithstanding the nature of the documentation to which I have referred, there was a risk that the prosecution was, in fact, politically motivated.  It appears to me that that is not open in the light of the express findings made by the Tribunal. 

32                  It may be that the Tribunal could have made clearer its conclusion.  However, I consider that on a fair reading of its reasons, the Tribunal was making abundantly clear that, while there was a real chance of persecution because of frequent infringement of human rights in Lebanon, the authorities are not interested in the applicant for anything other than the possibility of his being involved in security offences arising out of his trading with Israel.  For those reasons, I consider that this first ground must fail.

FAILURE TO GIVE ADEQUATE REASONS

33                  So far as the ground under section 476(1)(a) is concerned, in a sense it is disposed of by the reasoning I have outlined above.  While some criticism can be addressed to the Tribunal's reasoning, I do not consider that there has been a failure to comply with section 430. 

34                  The ground was formulated in this way.  It was said that the Report had the potential to substantiate important aspects of the applicant's case and that the Tribunal's failure to indicate its response to the allegations in the Report makes it impossible to understand how the Tribunal came to its findings.  It was said that the Report also raised material questions of fact such as:

·        Is the investigation and trial by the military characterised by illegality, torture and unfair trials? 

·        Does the Lebanese Government subject political opponents and those guilty of security offences to investigation and trial by the military because the Government imputes anti-Government views to them?

It was said that the Tribunal erred by failing to make findings on those material questions of fact. 

35                  In recent times, there has been a divergence of opinion of members of this court concerning the effect of section 430.  In Baljit Kaur Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1126, Drummond J summarised the opinions of members of the Court.  His Honour concluded that the preferable view is that section 430 requires the Tribunal to explain why it has rejected apparently probative material relevant to a material issue, even though there may be sufficient, or indeed even an abundance of, material the other way to support the conclusion on that issue that the Tribunal in fact reached - paragraph 32.  For present purposes, I am prepared to accept that his Honour's proposition is correct.

36                  I do not consider that the proposition is offended by the reasons in the present case.  It is not incumbent upon a Tribunal to consider, in its reasons, every piece of evidence.  The proposition is that the Tribunal must explain why it rejects apparently probative material relevant to a material issue.  For the reasons which I have indicated in dealing with the first issue, I do not consider that the Report contains material that supports a contention that an inference should be drawn that prosecution of the applicant is for political reasons. 

37                  As I have said, the Tribunal accepted the contentions of the applicant that there was a real chance of torture or ill treatment.  That, of course, was well supported by the material contained in the Report.  However, I do not consider that the material to which I was taken constitutes probative material relevant to the question of whether or not an inference should be drawn that the motive for the prosecution of the applicant is anything other than that which is stated in the documents to which I have referred.

38                  The applicant, in his own claims, acknowledged that he traded in the security zone.  The charge, insofar as it can be gleaned from the documents before the Tribunal, is of trading in the manner about which the applicant himself gave evidence.  The Tribunal referred to the fact that the applicant's concern for his well-being, if he returns to Lebanon, is heightened by the nature of the investigation against him, as disclosed by the documents.  It may be that he is suspected, on the face of the documents, of supplying secret security-related information to Israel.  In its reasons, the Tribunal observed that there was nothing before the Tribunal to indicate, one way or the other, whether there is any foundation for such a suspicion, although, as the Tribunal observed, the applicant, in all his evidence to the Tribunal, did not suggest that there is.  The applicant contended, before the Tribunal, that his trading activities had aroused an unjustified suspicion that he had acted in breach of Lebanon security. 

39                  The Tribunal accepted that the independent evidence supported the applicant's contention that he feared that, because of the nature of the investigation against him, he would be mistreated, and even tortured, in the interrogation process.  I consider that, on a fair reading of the reasons, the Tribunal has set out the reasons for its decision, the findings on all material questions of fact and referred to the evidence and other material on which the findings of fact were based.  I was not taken to any material that the Tribunal was required to deal with in order to negate any inference that might be drawn.  Accordingly, I am also satisfied that the second ground is not made out. 

CONCLUSION

40                  It follows from what I have said that the application should be dismissed.  I should say, however, that one can only feel the utmost sympathy for a person who has attempted to obtain the protection of this country and who is required to return to his homeland, where he cannot be guaranteed a system of justice that I hope this country would afford to its own citizens.  Those observations may be of cold comfort to the applicant.  However he should be aware that he has the sympathy of the citizens of this country. 

41                  The order I propose to make is that the application be dismissed.

Associate:

Dated:              23 September 1999