FEDERAL COURT OF AUSTRALIA

SZMKK v Minister for Immigration and Citizenship [2010] FCA 436

Citation:		SZMKK v Minister for Immigration and Citizenship [2010] FCA 436

Appeal from:		SZMKK v Minister for Immigration and Citizenship & Anor [2008] FMCA 1416

Parties:		SZMKK v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

File number:		NSD 910 of 2009

Judge:		BARKER J

Date of judgment:		6 May 2010

Catchwords:		MIGRATION - Refugees - jurisdictional error - real chance test - whether Refugee Review Tribunal misapplied real chance test - whether Federal Magistrate erred in finding Tribunal did not misapply real chance test - whether Tribunal did not address an issue of significance - whether Tribunal did not address significant issue properly MIGRATION - Refugees - jurisdictional error - religious motivation - whether Refugee Review Tribunal failed to consider applicant motivated by religious considerations HIGH COURT AND FEDERAL COURT - procedure - whether leave to amend a notice of appeal should be granted - merits of proposed ground of appeal

Legislation:		Migration Act 1958 (Cth) s 91R(1), s 91R(1)(a), s 91R(1)(b), s 91R(1)(c), s 417 Federal Court Rules 1976 (Cth) O 80 r 1

Cases cited:		Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 Salim Saliba v Minister for Immigration (1998) 159 ALR 247 SZMKK v Minister for Immigration [2008] FMCA 1416 SZMKK v Minister for Immigration and Citizenship [2009] FCA 1340 V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355

Date of hearing:	3 May 2010

Place:	Sydney

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	79

Counsel for the Appellant:	Ms C Burnett

Counsel for the First Respondent:	Mr T Reilly

Solicitor for the First Respondent:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 910 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMKK

appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

first respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	BARKER J
DATE OF ORDER:	6 MAY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs on the appeal and the costs in the application to extend the time for lodging the appeal pursuant to the order of Jagot J of 20 November 2009.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 910 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMKK

appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

first respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE:	BARKER J
DATE:	6 MAY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

appeal

1 This is an appeal from the judgment of a Federal Magistrate, the reasons for which were given orally (and later revised in writing from the transcript) on 16 October 2008. The written decision of the Federal Magistrate may be found at SZMKK v Minister for Immigration [2008] FMCA 1416. The Federal Magistrate dismissed the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) handed down on 20 May 2008, by which the Tribunal affirmed a decision of the delegate of the Minister for Immigration and Citizenship (Minister) not to grant the appellant a protection (Class XA) visa.

2 The appeal before me was lodged about 11 months out of time. However, on 20 November 2009, Jagot J of this Court granted the appellant an extension of time in which to file and serve a notice of appeal: see SMZKK v Minister for Immigration and Citizenship [2009] FCA 1340. Notwithstanding the delay, her Honour considered that it was in the interests of the administration of justice that such an extension of time be granted. This was because, in particular, the appellant had in the intervening period been awaiting a Ministerial decision under s 417 of the Migration Act 1958 (Cth) (Act) by way of substitution for the decision made by the Tribunal, having regard to the public interest, which application the appellant understood had a real chance of success. Her Honour also regarded the proposed grounds of appeal.

3 When her Honour granted the extension of time, in relation to the appeal, she exercised her power under O 80, r 1 of the Federal Court Rules 1976 (Cth) (Rules) to refer the appellant to the Registrar of the Court for a referral to the legal practitioner on the pro bono panel for the purpose of obtaining legal advice and, if the practitioner considers it appropriate, the drafting of an amended notice of appeal and legal representation on the appeal. Thus at the hearing of the appeal, the appellant was legally represented, whereas he had not previously been before the Federal Magistrate.

4 At the hearing before me, counsel for the appellant sought leave to file an amended notice of appeal in accordance with the leave earlier given by Jagot J. The grounds of the appeal that the appellant now seeks to rely upon are as follows:

1. The Federal Magistrate erred in finding that the second respondent did not misapply the legal test of whether the appellant faced a “real chance” of persecution.

2. The Federal Magistrate erred in failing to find that the second respondent failed to consider whether the appellant was motivated by religious considerations in bringing the relevant documents to Australia to be given to the Australian Federal Police.

3. The Federal Magistrate erred in failing to find that the second respondent failed to consider whether the appellant was motivated by political opinion in bringing the relevant documents to Australia to be given to the Australian Federal Police.

5 The Minister, through counsel, opposes the grant of leave to argue grounds two and three on the basis that they were not raised in the proceeding below, but largely focuses on the merits of those grounds in so doing. As a result, I will consider the application for leave to appeal in respect of grounds two and three in consideration of this matter generally below. At the outset however, there is no difficulty in allowing the notice of appeal to be amended in the form of the notice of appeal attached to the appellant’s outline of submissions dated 22 April 2010 in respect of ground one and leave is granted.

6 Before turning to the substance of the grounds raised, it will be useful briefly to provide some account of the background to this matter, because the issues now agitated on this appeal have really arisen during the course of the judicial review and appeal processes in the Federal Magistrates Court and this Court.

application for protection visa

7 The appellant lodged his application for a protection visa on 9 November 2007. He had earlier arrived in Australia on 3 October 2007 on a sub class 679 sponsored family visitor visa. He arrived on a Lebanese passport. There was and is no dispute that he is a Lebanese citizen.

8 The appellant, at all material times, had (and still has) family in Australia. He had earlier visited them for a period in 2005. He also has an extended family in Lebanon and elsewhere. By virtue of an earlier marriage, since dissolved, at material times he had two daughters residing in Lebanon, although later one of those daughters left Lebanon to live with her husband elsewhere.

9 In a statement attached to his application for a protection visa, which was in English and obviously prepared with the assistance of a third party – it being common ground that the appellant himself does not write or speak good English – the appellant disclosed the further following information in support of his application:

· In 2004, his daughter (who remains in Lebanon) and was at that time married to her husband, advised the appellant that her husband had been “dealing with a gang and drugs destined to Australia. The gang has a combination of Lebanese and Syrian citizens among them a [relative of a high Syrian official].

· This gang was operating at a time when the Syrian army was still in Lebanon and controlling the country.

· The gang has been allied to the Syrian army in Lebanon before its withdrawal in April 2005 after 30 years of occupation.

· As soon as the appellant’s daughter knew that her husband was involved in sending drugs to Australia, she asked the appellant to urge her husband to stop immediately and to notify the Lebanese authorities because what he was doing was a crime.

· The appellant spoke to his son‑in‑law “and told him that you are killing and destroying young people in Australia, and these actions are against the teachings of Islam”.

· His son‑in‑law’s reaction was “most astonishing” to him. He became defensive and gave “untrue justifications, such as it is alright to do these things when involving infidels. Of course what he was saying was totally incorrect”.

· This reply also angered the appellant’s daughter who found his actions to be most unethical and criminal. The appellant was also “totally and completely upset” because he could not convince his son‑in‑law to desist from this criminal behaviour.

· As a result of all of this, the appellant considered he had no option but to cause information to be supplied to Australian authorities and in order to “stop this gang from hurting young Australians and the country”.

· As a result of this, representatives of the Australian Federal Police requested the provision of documents which showed the gang had been sending drugs to Australia.

· In 2005, the appellant came to Australia and caused information to be supplied to the Australian Federal Police.

· After three months the appellant returned to Lebanon.

· A few months later, the Federal Police arrested a person in Australia.

· The arrest of the man in Australia resulted in the appellant and his two daughters (both then still being in Lebanon) “being harassed and threatened with death in Lebanon by [my son‑in‑law] and his gang. On several occasions I received threatening phone messages. The threats included messages such as ‘we will get you wherever you hide in Lebanon.’” The appellant took these threats seriously.

· The appellant said his daughter married to his son‑in‑law was then pestered and abused by her husband. He said to her that he was most angry “because I informed the Australian authorities about his drug involvement when I was in Australia”.

· The appellant’s daughter and her husband were divorced and she was “forced” to sign a paper in which she ceded custody of her baby daughter to her husband “in return for [the son‑in‑law] not killing” the appellant.

· Three months after the divorce of his daughter and son‑in‑law, the Lebanese police arrested the son‑in‑law and detained him for about three and a half months. “Through mediators and influential pro‑Syrian figures he was released on bail pending his trial. Important to say that [son‑in‑law] has been a bodyguard of [an important Lebanese official] … [who] assigned seven lawyers to help [son‑in‑law] be released on bail”.

· When his son‑in‑law was released on bail, he said to the appellant’s daughter on the telephone, that on the first appropriate moment he will murder her and the appellant’s other daughter, because according to him, “we destroyed his future”.

· As a result as soon as the son‑in‑law was released from gaol the appellant went into hiding, stopped working and lost the freedom as he had before. His two daughters also moved constantly from one place to another “because [son‑in‑law] and his gang have been pursuing us”.

· The appellant said the reason he came to Australia “is because [son‑in‑law] has strong connections with Hezbollah, Syria’s ally and with some Lebanese government circles. In other words, there is not one place safe for me and my daughters in Lebanon”.

· The appellant said that he cannot go back to Lebanon because his daughter has been telling him on the telephone that her ex‑husband’s “people” have been enquiring when he will be back in Lebanon. His daughters have continued to move from one place to another. The appellant stated: “I need urgent protection for my daughters and me. I have risked my life and the future of my [daughter’s] family because I believed in the human thing I did”.

· The appellant also pleaded with the Australian Government “to show compassion to my urgent situation and provide us with the much needed protection”.

10 On the basis of that application and other material before the Minister’s delegate who considered his application under the Act, none of the material claims and allegations made by the applicant in support of his application for a protection visa were, it seems, seriously doubted or ever put in dispute. However, having regard to the requirements of s 91R(1) of the Act concerning the nature of “persecution” for the purposes of the application of the Act and the Regulations and the Refugees Convention (1967 Protocol Relating to the Status of Refugees), the Minister’s delegate considered that the appellant had not faced and would not face persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Minister’s delegate considered the appellant’s claimed fear of persecution did not come within any one or more of these convention grounds but was of a private and criminal nature. Therefore the delegate was not satisfied that the appellant feared persecution for a convention based reason. Because the delegate was not satisfied that the claimed fear of persecution was convention based, the delegate did not find it necessary to ultimately decide whether the harm feared amounted to persecution or if the fear was well founded.

11 In this regard it is worth recalling that s 91R(1) of the Act provides that the Refugees Convention will apply only to persecution for one or more of the reasons mentioned in Art 1A(2) of the Convention, if it satisfies the following requirements of s 91R(1), which are:

(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

12 Article 1A(2) provides that a refugee is a person who:

… owing to a well founded fear of being persecuted for reasons, 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, or who, not having a nationality and being outside the country of his former habitual residence as the result of such events, is unable or, owing to such fear is unwilling to return to it.

review in the tribunal

13 The appellant then sought administrative review of the delegate’s decision in the Refugee Review Tribunal pursuant to the Act. The appellant provided additional materials to the Tribunal and accepted an invitation to give evidence to the Tribunal. In the event, the Tribunal affirmed the decision of the Minister’s delegate and dismissed the application for review.

14 In doing so, the Tribunal member noted the definition of “refugee” under the Refugees Convention and how material aspects of that definition must be applied: see [8] ‑ [17]. In relation to the question of “serious harm” (s 91R(1)(b)) and “systematic and discriminatory conduct” (s 91R(1)(c)) the member noted it includes threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s 91R(2)(a) – (f). The member noted that the “High Court has explained” that persecution may be directed against a person as an individual or as an member of a group. The member also noted that the persecution must have an “official quality” in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of a nationality. The member also noted, however, that the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

15 The member also noted that persecution implies an element of motivation on the part of those who persecute for the infliction of harm. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.

16 The member then further noted that the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition, as set out above. The member noted that the phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared, as required by s 91R(1)(a) of the Act.

17 Finally, at [15], the member dealt with the question of a “well-founded” fear, in these terms:

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well‑founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A ‘real chance’ is one that is not remote or insubstantial or a far‑fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

18 The member also noted that in addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.

19 Finally, the member noted that whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

20 These “four key elements” to the Convention definition of a refugee as they were described by the member in the statement of decision and reasons in this case are, as the Federal Magistrate in the Court below later noted, set out in something of a “template” form. Indeed, this Court, on appeals from decisions from Federal Magistrates under the Act, regularly sees such statements of relevant general principles in reasons of the Tribunal. There is, of course, no reason why such carefully developed statements of the principles underlying decisions to be made by the Tribunal under the Act should not be expressed in such a template. Apart from anything else, such a template may ensure accuracy and consistency in the statement and application of relevant principles by the primary administrative decision‑maker. The question always is whether the subsequent application of principles accurately stated betrays some failure fully to apply those principles or fully to comprehend their importance in any particular case. The Federal Magistrate in the Court below was alive to these very issues and carefully scrutinised the reasons of the Tribunal with this in mind.

21 In the Tribunal, as before the delegate, the essential narrative of the appellant’s circumstances and matters relating to his application for a protection visa were not seriously doubted or put in dispute. The Minister has not attempted, at any stage of the proceedings under the Act here referred to, to falsify any of the essential claims and the narrative made and given by the appellant. The essence of the appellant’s dealings therefore with his son‑in‑law in Lebanon, and his informing activities as described above concerning the conduct of his son‑in‑law, are not the subject of any dispute. This is ultimately emphasised by the following passages in the statement of decision and reasons of the Tribunal [as formally published by the Tribunal]:

[21] The applicant claims that Relative 1 told him that Relative 2 was involved with criminal activities in Australia. One of the members of the gang was closely connected to the authorities and the family member of a prominent political figure. Relative 1 asked the applicant to speak to Relative 2 which he did but the reaction was defensive and Relative 2 would not stop being involved in the criminal behaviour. [Information about the criminal activities deleted under section s431 as it may identify the applicant]. The police arrested the partner in crime of Relative 2. A few months later the Lebanese police arrested Relative 2 and detained him for a period of time but he was released on bail with the help of the family member of a prominent political figure. After Relative 2 was released on bail the applicant and his children went into hiding, the applicant stopped working and they moved from place to place to avoid harm from Relative 2 and his gang who are pursuing them. Relative 2 has strong connections with a prominent political party in the region and with some Lebanese government circles so it is not safe for them in Lebanon.

[22] The applicant said that he cannot go back to his country as Relative 1 has told him by telephone that Relative 2’s people are enquiring about him; his children are moving around.

22 In the reasons for decision, the Tribunal member sets out some more personal working and living details concerning the appellant in Lebanon and elsewhere, and also something of the questions put and the answers given to matters bearing on the application, for example, the nature of the threats and the timing of the threats claimed: see [31] of the reasons. The Tribunal particularly asked questions about what the appellant feared would happen if he were to return to Lebanon. The Tribunal’s reasons (in the formally published form) record the following substantive provision information in that regard by the appellant:

[36] The Tribunal asked the applicant what he thinks will happen to him if he returns to his country. He said that he is afraid of what Relative 2 has in store for him but he does not regret anything. He regrets however that Relative 1 is paying the price as she is anxious because the applicant is threatened. The applicant has left Lebanon because he is afraid of harm.

[37] The Tribunal explained to the applicant that even if it accepts the claims he is making what it has to decide is if he comes within the definition of a refugee for the purposes of the Refugees Convention. The Tribunal said that the harm/persecution that the applicant fears does not appear to be for Convention reason as is required for the grant of a protection visa; the Tribunal outlined the Convention reasons for the applicant. The Tribunal told the applicant that it seems to it that what he fears in his country is harm from essentially criminal conduct. It invited the applicant’s comments. The applicant said there is a whole country supporting Relative 2, the whole of Syria is behind him; the applicant mentioned harm because of political opinion or because of membership of a particular social group. He said if the Lebanese government collapsed he would be the first one to be killed because of Relative 2 as a government agency, a prominent political party in the region and terrorists are behind him. He said he has a real fear of persecution. The Tribunal asked the applicant why then if Relative 2 is supported by these groups he was arrested and detained in Lebanon The applicant said that the authorities who arrested him were not following the Syrians but the part who follows the Syrians acquitted him. The applicant said that Lebanon is under the Syrians but agreed with the Tribunal that the Lebanon is not ‘under the Syrians’ now; the applicant said that ‘it is just half and half’. The applicant said that if Lebanon was a strong country he would not have left as the government would have protected him. He said that the country is in two, the Lebanese government and the Syrians; he supports the Lebanese government which is against the Syrians but if he supported the Syrians he would be able to get out of this situation.

23 Based on all of this information and questioning the Tribunal, at [47] and [48], found that the appellant was a citizen of Lebanon, that he is who he claims to be and that he entered Australia for the first time in 2005 for about three months, returned to Lebanon and then travelled to Australia again in 2007.

24 The Tribunal at [49] also accepted that when the appellant came to Australia in 2005, the appellant caused information concerning the drug importation activities of the son‑in‑law to be provided to the Australian police and that the son‑in‑law was subsequently arrested and detained by authorities in Lebanon. The Tribunal further accept, at [50], that the son‑in‑law suspected the applicant and a relative of the appellant had informed on him and threatened to harm the appellant for this reason when he returned to Lebanon. The Tribunal accepted that the appellant fears harm from his son‑in‑law and associates in Lebanon because he informed about them and their drug dealing activities in Australia, although the Tribunal said at [50] that it so found “not without some doubt about the matter given that the applicant was living at his family home and working in Lebanon up until the time of his trip to Australia in 2007”. The Tribunal further found, however, that the harm which the appellant fears from his son‑in‑law “was and is directed at the applicant because the [son‑in‑law] suspects him of reporting his [son‑in‑law’s] drug importation”.

Ground one: whether the federal magistrate erred in finding that the second respondent did not misapply the legal test of whether the appellant faced “a real chance” of persecution

25 It is well understood and accepted all round by the parties in this case, that for a person to have a well‑founded fear of persecution, the prospect of the person’s persecution if they are returned to their country must be possible but need not be probable. Accordingly, it is sufficient that there be a “real chance” of persecution: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 389, 407, 429. Further that the chance may be below 50%: Minister for Immigration and Ethnic Affairs v Guo [1997] CA 22; (1997) 191 CLR 559 (Guo) at 572. The person does not need to positively prove that they will be persecuted, therefore, or that such an event is probable.

26 A note of caution, however, is required in stating these principles. In Guo, the plurality (Brennan CJ, Dawson, Toohey, Gawdron, McHugh and Gummow JJ) explained that care must be taken with the use of the “real chance” test as a substitute for the Convention term “well‑founded” fear. To use the real chance test as a mere substitute is to invite error. Their Honours stated, at 572:

No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase ‘well-founded’, leads to the same result as a direct application of that phrase. … Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. In the present case, for example, Einfeld J thought that the ‘real chance’ test invited speculation and that the Tribunal had erred because it ‘has shunned speculation’ [footnote omitted]… But it seems likely, having regard to the context … and his Honour's conclusions concerning the Tribunal's reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is ‘well‑founded’ when there is a real substantial basis for it. As … shows ((1999) 169 CLR 279), a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well‑founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

27 It is decisions such as Guo and Chan that underlie the statement of the member of the Tribunal concerning the nature of the well‑founded fear set out in summary form above.

28 The parties accept that the “real chance” test is relevant to both the assessment by the Tribunal of the seriousness of the threat claims and their basis, as well to the assessment of the level of state protection available.

29 In this case, what the appellant says the Federal Magistrate failed to do, was identify, as a jurisdictional error, the Tribunal’s effective requirement that the appellant prove that he would suffer a denial of state protection for political or religious reasons on his return to Lebanon – and not simply ask itself whether on the material before the Tribunal that was a “real chance” of denial of such protection.

30 The appellant notes the Tribunal had already found that the son‑in‑law had suspected the appellant and his brother of informing on him and threatened to harm the appellant for this reason when he returned to Lebanon and the appellant feared this harm. The appellant therefore contends that the Tribunal in effect imposed a balance of probabilities test, or at least a threshold higher than the “real chance” provided for by the Act in the case law cited.

31 To make good this submission, counsel for the appellant draws attention to [52] of the Tribunal’s reasons for decision and the fact that it began its analysis of the state protection issue with the words:

The Tribunal also considered whether the applicant cannot get protection in his country from the harm that he fears for a Convention reason should he return to his country.

Counsel contends that the language of “real chance” is not utilised and it may thereby be seen that the Tribunal elevated the threshold beyond a “real chance”. It required the appellant to prove, in effect, that he cannot obtain state protection in Lebanon rather than ask if there was a real chance of him being denied state protection for a Convention reason.

32 Counsel also draws attention to what was said in the second part of [52] by reference to the issue of whether or not the son‑in‑law had been bailed or acquitted as indicating that the appellant had some positive obligation to establish before the Tribunal that the son‑in‑law had been acquitted.

33 Finally, counsel draws attention to the conclusion in [54] where the Tribunal again made reference to whether the appellant “cannot get protection from harm in this country”. Counsel notes that the Tribunal in that paragraph uses the phrase “real chance”, but contends that the expression was used in relation to the earlier reference to persecution and not in relation to the denial of state protection.

34 Counsel for the appellant contends that the main reason for the Tribunal’s conclusion that the appellant would not be denied state protection was its inference, in the second part of [52], that the criminal proceedings against the son‑in‑law “were continuing”. And that this inference led directly to its finding that the appellant’s evidence does not enable it to conclude that the son‑in‑law was acquitted or did not face the consequences of his criminal conduct because of his political affiliation. Counsel contends that while the Tribunal did not say that it disbelieved the appellant, the Tribunal should be taken to have held it against the appellant that he had not provided sufficient information to enable the Tribunal to arrive at the conclusion the Tribunal thought necessary.

35 Whether the Tribunal intended, or may be taken to have intended this passage to be critical to its reasoning process, or simply made a passing observation on the state of the information before it, is discussed further below.

36 The Federal Magistrate dismissed three express grounds of the judicial review application before him, but identified as a further concern this “real chance” issue. As Justice Jagot observed, at [7] of her reasons supporting the grant of an extension of time for this appeal, the Federal Magistrate, with some justification, described the Tribunal’s language in that part of its reasons dealing with “real chance”, as “not reassuring in this respect”: see [11]. The Federal Magistrate, at [14], said this:

[14] Whether the present Tribunal properly appreciated and applied the real chance test is not a matter that I have found easy to decide. However, I am not persuaded that its reasoning reveals that it ultimately assessed the relevant risk of Convention‑related denial of State protection on a balance of probabilities test, or upon another test which was more demanding than the real chance test.

37 As I observed earlier, the Federal Magistrate noted that the relevant law in relation to denial of government protection and the real chance test was taken from a template which might be considered “impeccable”. His Honour, at [15], said he should assume that the Tribunal member had thought about the legal propositions therein set out “properly”, unless there is some indication of contrary. As I indicated above, I agree with that approach.

38 At [16], the Federal Magistrate observed:

[16] In this situation, the concerns I have concerning [52] also need to be read in the context of the ensuing reasoning of the Tribunal in [54] and [55]. In the context of the factual circumstances of the present applicant's accepted history, it was, in my opinion, certainly open to the Tribunal to have arrived at a firm opinion, as a matter of fact, that there was an insufficient risk of Convention‑related denial of state protection. A conclusion which correctly applied the ‘real chance’ test cannot, therefore, be regarded as so surprising as to be unlikely.

39 As to whether or not there was a positive finding based on a clear exposition of the real chance test the Federal Magistrate observed, at [17]:

[17] The Tribunal came very close to making expressly a positive finding in the course of its assessment of the evidence in [52], and in the first sentence of [54], which excluded a real chance of Convention-related persecution. I would, therefore, be cautious in reading its subordinate factual findings themselves as revealing that the Tribunal asked itself the wrong question when it arrived at its ultimate conclusion. That is, as showing that it failed ultimately to ask itself the correct question, applying a proper appreciation of the concept of well-founded fear in relation to possible future risks of Convention related harm.

40 In the result, the Federal Magistrate said his mind had been swayed by the last sentence of [54] of the Tribunal’s reasoning, which revealed that the Tribunal was aware that it had to assess whether all the evidence persuaded it as to the existence of a “real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if he returns to his country”. His Honour was not persuaded that this reasoning was not an integral and concluding part of the Tribunal’s actual thought processes. He considered, at [18], that it sufficiently suggested that the Tribunal’s reasoning was not affected by any error of law in relation to its appreciation of the real chance test. Nor in its application of the history and evidence given by the appellant and his witness.

41 I am of a like mind to his Honour, the Federal Magistrate, and indeed Justice Jagot, in observing that the reasoning of the Tribunal and the terms of the opening question posed by the Tribunal for itself in the first sentence of [52] were not “reassuring”. As noted, they are the words that counsel for the appellant first draws attention to on this appeal and which are repeated in part in [54]. The point is that the real chance test does not require the Tribunal to decide whether “the applicant cannot get protection in his country” in respect of the harm he fears when he returns to his country. The question is whether there is “real chance” that the protection may not be available, the concept of real chance being that explained in some detail in the passage from Guo’s case which I have set out above. What appears to have happened in this case, is that the Tribunal member commenced the analysis of the appellant’s claims on the basis that the appellant had received a simple but serious threat from his son‑in‑law because the appellant had informed authorities in Australia and effectively in Lebanon about the son‑in‑law’s alleged criminal activities. That, on the face of it, appeared to be a credible threat of serious harm but one, as the Minister’s delegate had initially described it, that was “private and criminal in nature” and not related to any of the criteria enumerated in the Refugees Convention.

42 The Tribunal member put that proposition squarely and fairly to the appellant in the course of the hearing in the Tribunal, as the transcript of the hearing shows. It was by reason of doing so that the appellant had occasion to emphasise to the Tribunal – in the passage set out in some detail above, at [37] of the Tribunal’s reasons – that he particularly feared harm because of political opinion or because of a membership of a particular social group. The political opinion fear was plainly imputed political opinion, which both parties here fully accept may be relevant in a particular case, having regard, for example, to the preparedness of a person to ensure that the law is observed; or because of membership of a particular social group, in that he or she might be harmed by virtue of being a supporter of a political group that competes with another such group. It is clear to me that, in [52], the Tribunal was alert to the nature of the appellant’s fears and the basis expressed for them. In the second sentence of [52], the Tribunal expressly notes the appellant’s claims that he cannot get protection from the harm he fears in Lebanon because the son‑in‑law is backed by the Syrians, Hezbollah and terrorists in his country and he, himself, supports the Lebanese Government.

43 It is important to note that the Tribunal, in [52], expressly rejected this claim when it found:

The Tribunal does not accept as plausible that the applicant cannot get protection from harm in his country for a Convention reason, including because of his political opinion, imputed political opinion or because he is a member of a particular social group.

In [52], following this finding, the Tribunal set out three primary reasons for it:

· Although the applicant said he did not claim protection in his country from the threats he received, he had never had “any difficulties” with the Lebanese Government.

· The Lebanese authorities in fact took action and arrested the son‑in‑law in Lebanon according to the applicant’s oral evidence.

· Although the applicant said the son‑in‑law was acquitted because of his political connections, he also said that the son‑in‑law obtained bail indicating that the legal proceedings were continuing and he did not know if the son‑in‑law was acquitted.

44 As to the latter point, as noted above, and as emphasised by counsel for the appellant, the Tribunal proceeded to remark in the last sentence of [52], that the appellant’s evidence did not enable it to conclude that the son‑in‑law was acquitted or did not face the consequences of his criminal conduct because of his political affiliations. That statement by the Tribunal is in a sentence that seems to stand for two separate, disjunctive propositions, the second being that the appellant’s evidence before the Tribunal did not enable it to conclude “that the applicant cannot get the protection from Lebanese authorities because of his own political opinion, his imputed political opinion or because he is a member of a particular social group”.

45 Like the Federal Magistrate, I accept that the expression of its reasons in [52] may suggest that the Tribunal member applied a test more onerous or demanding than the “real chance” test when it came to considering whether, in the light of the fear expressed by the appellant and the basis for it, he could count on protection from Lebanese authorities, having regard to his imputed political opinion or because he was a member of a particular social group.

46 However, elsewhere in the reasons there are clear indications that the Tribunal member fully appreciated the requirements of the real chance test. First, there is the general statement of principles found in [15] of the Tribunal’s reasons for decision. As noted above, the Tribunal member there plainly stated that a fear is well founded if there is a genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason; and that a fear is well founded where there is a “real substantial basis” for it, but not if it is merely assumed or based on mere speculation. The member also noted that a real chance is not one that is remote or insubstantial or a far fetched possibility and that a person can have a well founded fear even though the possibility of persecution occurring is well below 50%.

47 Secondly, at [44], the Tribunal noted that the Tribunal must determine whether the applicant before it “has a genuine fear founded upon a real chance of persecution for a Convention reason if he returns to his country”. This paragraph again reflects the statement of principle earlier made in [15], but in a context going beyond the “template” statement of principle.

48 And, as the Federal Magistrate noted, the use of the “real chance” test is again adverted to in [54], albeit that this follows the analysis of the availability of protection from harm in [52]. In [54] the Tribunal relevantly summed up its view that “the evidence does not establish that there is a real chance that the applicant will suffer persecution for a Convention reason, either now or in the reasonably foreseeable future if he returns to his country”.

49 What one looks for, in perusing reasons of the Tribunal such as those under scrutiny here, is some more detailed analysis of why on the “real chance” test (properly understood) there is no real chance of persecution now or upon return to the country of origin, taking into account the availability of state protection.

50 In this regard, as noted above, the Tribunal in [52] sets out three reasons for its views that there is no “plausible” case. The Tribunal adverted to the fact that when the appellant had returned to Lebanon he had not made any claim for protection in Lebanon in respect of the threats he received. He had also never had any “difficulties” with the Lebanese Government. This all serves to inform the finding that the claims of the appellant in this regard were not “plausible”, as the Tribunal put it in the opening part of the third sentence of [52]. Similarly, supportive of its finding, the Tribunal pointed to the fact that the Lebanese authorities in fact took action and arrested the son‑in‑law in Lebanon, following the appellant’s information coming to hand.

51 Counsel for the appellant, as previously noted, however, draws particular attention to the reasoning of the member of the Tribunal in relation to what follows the identification of these reasons, concerning the arrest, bail and/or acquittal or termination of criminal proceedings against the son‑in‑law. Counsel contends this third reason and the subsequent discussion of it are critical to the Tribunal’s reasoning process and betray a misapplication of the real chance test.

52 In the highlighted passage, the Tribunal found that the “applicant’s evidence … does not enable it [the Tribunal] to conclude that the son‑in‑law was acquitted or did not face the consequences of his criminal conduct because of his political affiliations”. In context in [52], this passage provides some qualification to the preceding sentence of [52] in which the Tribunal noted that although the appellant said that the son‑in‑law was acquitted because of his political connections, he had additionally said that the son‑in‑law had “obtained bail” indicating that the legal proceedings were continuing and that he did not know if the son‑in‑law was acquitted.

53 I do not think that the Tribunal was in the passage highlighted, or those passages taken as a whole was doing anything more than stating the state of the appellant’s evidence. Certainly, I do not consider the Tribunal was thereby reformulating the real chance test into a test more demanding than the real chance test, by in effect requiring the appellant to prove that the son‑in‑law had not been acquitted or that the legal proceedings were not continuing before the Tribunal could consider the state protection point to be relevant. The facts were as they fell out in the hearing, and I take the Tribunal in this passage simply to be observing those facts or rather the appellant’s own account of relevant events. There was no other evidence adduced on behalf of the Minister or the appellant as to precisely what had happened in these apparent criminal proceedings against the son‑in‑law in Lebanon. The evidence given by the appellant, while by no means evincing complete understanding of what had happened in those proceedings, indicated that he understood that the son‑in‑law had been bailed, at the very least, but that he may possibly have been acquitted, or that the proceedings may no longer be current. It was enough for the appellant to complain of the fact that, according to the son‑in‑law, he had obtained bail in the first instance, and was free in the community because he had, to use a hackneyed expression, “friends in high places”, including a battalion of seven lawyers to assist him. All that material was before the Tribunal and it plainly had regard to it. In my view, it simply took the evidence as it found it and it accurately recounted what the appellant had told it. I do not believe that it can be said, in these circumstances, that the Tribunal thereby found against the appellant because he had failed to prove that his son‑in‑law had actually been acquitted in those criminal proceedings.

54 In the end, the Tribunal plainly was aware of the substance of the real chance test and its purpose. In [54], it finally came to the view that there was, to use the Tribunal’s expression, “no plausible evidence” before it to show that the appellant had suffered, or would suffer in the reasonably foreseeable future persecution in his country, “or that he cannot get protection from harm in his country” because of his imputed political opinion, or because he was a member of a particular social or for any other Convention reason. The Tribunal made it clear in [54], that “the evidence has not established that there is a real chance” that the appellant will suffer persecution either now or in the reasonably foreseeable future if he returns to his country. The proper inference to be made, having regard to the whole of the reasoning process in the Tribunal, is that the Tribunal was also not satisfied that there was a real substantial basis for the appellant’s expressed fear that state protection would not be available to him should he return to Lebanon. That, I consider, was the finding of fact made by the Tribunal.

55 Therefore I do not consider that this is a case, such as Salim Saliba v Minister for Immigration (1998) 159 ALR 247 (Salim Saliba), at 257, where the Court (Sackville J) considered that the Tribunal, on the facts disclosed, did not address an issue of significance or did not address such an issue properly.

56 Although the written analysis of the Tribunal might have been more structured, when read fairly I consider that not only did the Tribunal find that there was no well‑founded fear that the appellant would be persecuted for a Convention based reason (particularly imputed political beliefs advanced by the appellant in response to the issue being raised expressly by the Tribunal member), but that the Tribunal also found, on the evidence before it, there was no “real chance” of denial of state protection for imputed political belief or membership of a social group (or for any other Convention reason) should the appellant return to Lebanon.

57 For these reasons the first ground of the appeal should be dismissed.

Ground two: whether the federal magistrate erred in failing to find that the second respondent failed to consider whether the appellant was motivated by religious considerations in bringing the relevant documents to australia to be given to the australian federal police

58 As noted above, I will deal with the merits of this proposed ground of appeal for which leave is required.

59 As noted in the account provided above of what the appellant put forward in his statement supporting his application for a protection visa, he said that he informed his son‑in‑law that he thought the drug importation was wrong and that it was in violation of his religion, Islam. It will be recalled that the appellant said his son‑in‑law became “defensive and gave untrue justifications such as it is alright to do these things when involving infidels”.

60 Some but not all of that explanation found its way into the reasons for decision and narrative provided by the Tribunal on review of the delegate’s decision. However, no express reference was made to the claim that the son‑in‑law justified the action, so far as Islam was concerned, by reference to the fact that it was alright to do these things when involving infidels.

61 The appellant now says that the threat of harm conveyed by the son‑in‑law to the appellant, of which the appellant is now in fear, has a religious‑based aspect, not considered by the Tribunal (and so not further considered by the Federal Magistrate), that bears on the question whether the appellant had a well‑founded fear of persecution for a Convention based reason.

62 Counsel for the appellant says that the Tribunal, by characterising the persecution fear of the appellant as one of a private or criminal nature, proceeded on a “false dichotomy” which amounted to error of law, the false dichotomy being that, if it is a person’s individual conduct which is the immediate cause of persecution, the persecution cannot be a Convention reason. In this regard the counsel for the appellant refers to V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; (1999) 92 FCR 355, at 17; Salim Saliba, at 257.

63 As an example, counsel for the appellant posits the case of a person who organises a protest against a government whose religious beliefs or practices the protestor opposes. This may be conduct in organising a protest that leads to his or her persecution by the government, but the persecution is still for reasons of religious belief.

64 So, too, counsel submits, could it be said that the appellant’s conduct in bringing to Australia information incriminating a drug importation gang was motivated by his religious beliefs, beliefs which clash with those of his persecutors in Lebanon, and the forces that would deny him state protection in Lebanon should he be obliged to return there. Counsel says that this line of inquiry was not explored by the Tribunal.

65 Counsel says that because the Tribunal found that the private character of the appellant’s conduct was necessarily exclusive of a Convention nexus, this analysis was unduly cut short. The Tribunal did not put the appellant on notice in any meaningful way such that the appellant could prove the links which he had suggested existed between his religious and political beliefs and his conduct, the religious and political opinions of his son‑in‑law and his gang, the impact of his conduct on his son‑in‑law, the death threats and the other threatened persecution and denial of state protection. As a consequence the appellant was denied the opportunity of having a substantial part of his case heard.

66 The trouble I have with this line of argument is not in relation to the points of principle advanced by counsel, for which there is ample authority. Rather, it is in relation to the evidence, or lack of it, that suggests any basis for persecution based on the religious beliefs of the appellant. In particular, when the Tribunal member pointed out to the appellant, during the Tribunal hearing, that there needed to be a Convention based reason for the persecution, to be considered a refugee, the appellant did not raise persecution based on his religious beliefs, to put it generally, as a ground for his fear. His expressed concern, rather, was one that he based on the political power or connections of the son‑in‑law. I do not think the Tribunal was bound, even with the comfortable benefit of hindsight, to have considered the possibility of a Convention based reason in these terms.

67 It may be accepted for present purposes that the Tribunal accepted, as it accepted every other relevant claim of the appellant, that he had the exchange about the dictates of Islam with the son‑in‑law at material times in Lebanon and that the son‑in‑law rejected the religious statements of the appellant in the manner described. It may be accepted then that the appellant was motivated, at least in part and perhaps even significantly, by his own belief that not only was the conduct of the son‑in‑law a crime under the general law but also offended the principles of Islam. But it is necessary to inquire beyond the motivation of the appellant to ascertain whether, in all of the circumstances, he had a fear of retribution by the son‑in‑law (or his gang) because he held these particular religious beliefs, or that he would be denied state protection because of his religious beliefs.

68 At that level, there is no or scant evidence to support such a finding. While the Tribunal’s reasons do not mention or address religious persecution expressly, all of the relevant findings, including those going to political or imputed political belief, indicate that the Tribunal considered that the son‑in‑law and those with whom he was associated had not conveyed threats by reason of any religious principles upheld by the appellant; the threats owed themselves simply to a desire for revenge for the appellant’s informing on him.

69 As I have noted, threats based on religious belief was not something that the appellant articulated or reasonably may be taken to have articulated. That this is so may be considered a reasonable indication that the question of religious persecution was something quite remote in the mind of the appellant himself. His immediate concerns were, and at the hearing in the Tribunal were emphasised to be, all about the political influence of the son‑in‑law and his capacity to avoid prosecution, remain at large in the Lebanese community and have some ability to make good the threats he had conveyed to the appellant because he would not be constrained by the proper authorities. The information in the Tribunal went to these issues. The Tribunal made its findings of fact having regard to these claims and rejected them.

70 In my view, there is no or little merit in the second ground of appeal proposed by the appellant. In those circumstances, I would refuse the appellant leave to raise ground two on this appeal, it being a matter not raised in the Court below.

ground three: whether the federal magistrate erred in failing to find that the second respondent failed to consider whether the appellant was motivated by political opinion in bringing relevant information to australia to be given to the australian federal police

71 As in the case of proposed ground two, I will consider the merits of this ground.

72 Counsel for the appellant says that, in addition to his religious compunctions, the appellant in his statement and before the Tribunal stated that he believed the drug importation activities were “criminal”, “unethical” and “hurting people while they are not guilty of anything”. He also said his son‑in‑law had powerful connections within the part of the Lebanese authorities affiliated with Syria, that the son‑in‑law had been a bodyguard to a former official’s son and implied that these connections helped him to secure his release from arrest. The appellant noted that he (the appellant) by contrast was aligned with that part of the Lebanese government not affiliated with Syria. He further stated that after his release from arrest the son‑in‑law persecuted the appellant “because according to him we had destroyed his future”.

73 The appellant says a desire to see justice done is not mutually exclusive of a Convention reason; a belief that no group should be above the law is a political opinion: Salim Saliba, at 257. There is also often overlap between reasons of religion and reasons of political opinion: Hellman v Minister for Immigration and Multicultural Affairs [2000] FCA 645, at [26].

74 Counsel further contends that conduct motivated by such beliefs can lead to actual political consequences, such as negative publicity for political movement of a member thereof – as the appellant suggested by his mention of his son‑in‑law’s ruined future. These claims provide further foundation for a case that the appellant’s informant conduct had political ramifications for his son‑in‑law and his gang and that his fear of persecution is politically motivated.

75 Counsel submits on behalf of the appellant that these factual links should have been examined by the Tribunal but were not. As a consequence, the appellant was denied the opportunity of having a substantial part of his case heard.

76 In my view, as in the case of proposed ground two, there is no particular issue concerning the points of principle contended for on behalf of the appellant. In appropriate circumstances a threat of harm made against a person may be seen to be founded in whole or in part on a Convention reason. The problem here is two fold: whether there is any evidence to support the claim; and whether the Tribunal implicitly found against the appellant on this basis in any event.

77 So far as the son‑in‑law and his gang is concerned, there was nothing in the information before the Tribunal to suggest that he or it was motivated to threaten harm to the appellant because, to put it directly, the appellant constituted a political threat or because of the political views of the appellant. While counsel for the appellant has ably constructed a scenario that might, in different circumstances, illustrate that a threat of harm could have both a “private and criminal” motivation as well as a Convention based motivation, there is no factual basis for that scenario in this case. In any event, I consider the tribunal’s finding of fact that the threat was of a personal or criminal nature borne of revenge necessarily rejects, on the facts of this case, the possibility it was politically motivated.

78 In the circumstances, I consider, as in the case of proposed ground two, it is not appropriate, having regard to the merits of this proposed ground, to grant leave to the appellant to amend the notice of motion.

Orders

79 For the above reasons the appeal should be dismissed with costs.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate:

Dated: 6 May 2010

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