FEDERAL COURT OF AUSTRALIA

MZAKA v Minister for Immigration and Border Protection [2016] FCA 781

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the amended notice of appeal, with respect to proposed ground three, be refused.

2.    The appeal be dismissed.

3.    The appellant pay the costs of the first respondent, such costs to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DAVIES J:

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a Protection (Class XA) Visa.

Background

2    The appellant is a citizen of Lebanon who came to Australia on a sub-class 679 sponsored family visitor visa in September 2012. In December 2012 the appellant applied for a protection visa. The application was refused in February 2013 and the appellant applied to have the decision reviewed by the Tribunal.

3    Before the Tribunal the appellant claimed to fear harm at the hands of agents of the Syrian government and those who support pro-Syrian political parties in Lebanon because of the support expressed by his father and grandfather for President Hariri and their refusal to support pro-Syrian political parties and the Syrian government. He claimed that his family’s petrol station (and home) near the Syrian-Lebanese border had been attacked many times by supporters of pro-Syrian groups who took groceries and petrol without paying and, on occasion, threw stones and fired shots at the petrol station. He also claimed that he had been targeted by pro-Syrian groups on account of his father’s refusal to associate with Syrian-backed political parties. He claimed that in July 2012 he had been followed by a car with four armed men in it whilst he was riding his motorbike. They swore at him, said they were going to teach his father a lesson, said that they would not kill him straight away but let him die slowly, and they swerved the car into his motorbike and he was knocked unconscious. He suffered a broken leg and severe bruising. The incident was reported to the police but nothing was done because the appellant did not recognise the men in the car. However he believed that his motorbike accident had happened because the pro-Syrian forces wanted to hurt his father. The appellant also claimed that pro-Syrian groups had once demanded that his grandfather pay US$100,000 to be left alone but he refused, and shortly afterwards his father was abducted by Syrian intelligence, detained for three months and tortured.

The tribunal decision

4    The Tribunal accepted at [56] that:

a.    The applicant’s father was detained and tortured by Syrian security forces at some time in the late 1990s after refusing to associate with Syrian backed parties at that time and that he was monitored by Syrian security forces during the time they occupied northern Lebanon.

b.    The applicant and his family are Sunni supporters of the Future Movement and do not support the Syrian government or pro-Syrian government political parties in Lebanon.

c.    The applicant’s family run the petrol station in Akkar Province, which I find to be the applicant’s home area in Lebanon.

d.    The applicant’s father has connections with, and has dealt with, local politicians and community leaders, in relation to the provision of services, including access to water and construction materials, in his home area and has helped people in his home area by arranging for them to be taken to hospital or to be released from military service.

e.    The applicant’s family are well-known in their home area as a result of them running the petrol station and the applicant’s father’s activities referred to above.

f.    Individuals in the applicant’s home area have taken petrol and other goods from the petrol station without paying, are loud and unruly when at the petrol station and have, on occasion, fired shots near and thrown stones at the petrol station.

g.    The applicant was seriously injured in a motor vehicle accident in July 2012.

5    However, the Tribunal had significant concerns about the credibility of aspects of the appellant’s claims. At [57], the Tribunal stated that it did not accept that:

a.    The applicant, his father or grandfather have been targeted for harm by the Syrian security forces or individuals supporting pro-Syrian government political parties at any time since the applicant’s father was arrested and detained in the late 1990s.

b.    The applicant, his father or grandfather have been closely monitored or otherwise subjected to pressure by Syrian security forces or individuals supporting pro-Syrian government political parties at any time since Syrian security forces left northern Lebanon in 2005.

c.    The applicant’s father or grandfather were, at any time after the applicant’s father was detained in the 1990s, harmed or threatened with harm by anyone for supporting the Future Movement and not supporting pro-Syrian government political parties in Lebanon, because they have been suspected to be spies for the Future Movement or because of the applicant’s father’s dealings with local politicians and community leaders in the applicant’s home area.

d.    The applicant’s family were at any time threatened with harm if they did not pay US$100,000 or any other amount of money to individuals supporting pro-Syrian government political parties in Lebanon or anyone else.

e.    Individuals have at any time threatened to blow up the applicant’s family’s petrol station.

f.    The petrol station is regarded as a strategic location either by the Lebanese armed forces, the SSNP, the SBP, the Syrian army and intelligence services or anyone else.

g.    The applicant or any member of his family publicly protested about the assassination of Hariri.

h.    The applicant’s grandfather spoke publicly on Future TV about the assassination of President Hariri or at any other time.

i.    The applicant, his father or grandfather are members of the Future Movement or any other political party in Lebanon or have otherwise publicly expressed support for the Future Movement or any other politician or political party in Lebanon, other than by displaying posters of President Hariri at the petrol station.

6    In making adverse credit findings, the Tribunal stated that it found the evidence provided by the appellant, his father and sisters about the people at whose hands they feared harm to be vague and generalised. The Tribunal also referred to inconsistencies in the evidence provided by the appellant and the other witnesses, which the Tribunal considered raised further doubts about the credibility of the appellant’s claims. Specifically, the Tribunal stated at [52]-[55]:

52.    When I asked the applicant and his father at the hearing about the people who were threatening to harm them, who took their petrol and groceries without payment and otherwise harassed them at the petrol station and who the applicant claimed ran him off the road, they were unable to identify any of them by name and were unable to explain in any detail how they knew those people were agents of the Syrian government or supporters of pro-Syrian government political parties. I find that the applicant and his witnesses have exaggerated the difficulties they are having with unruly members of the community in their home area who I accept are refusing to pay for goods and otherwise harassing them in an attempt to claim that these difficulties amount to serious harm and are Convention related. I find that if these individuals were connected with the Syrian government or pro-Syrian government political parties, as the applicant claims, he would have been able to provide more information about the individuals and their connections than he has been able to.

53.    I also place significant weight on the claims made by the applicant’s father and sister at the hearing that the applicant’s father was warned by individuals connected to pro-Syrian government political parties in Lebanon that the applicant and his family would be targeted both before and after the incident in which the applicant fell off his motorbike. I find that if these threats had been made the applicant would have provided this information with his protection claims to the department, either at the interview with the delegate or in writing. Rather, this information was not disclosed until the hearing before me when I raised my concerns about the applicant’s claims that the motorbike incident was as a result of his family’s political opinion. I find the applicant’s father’s explanation for why he had not told the applicant about these threats because he feared that information provided in writing to the department and tribunal in Australia could come to the attention of individuals or groups who would seek to harm the applicant or his family to be implausible. Given that these claimed threats are, if they were true, the clearest evidence of a political motivation for harming the applicant, I find that the applicant’s father would have told the applicant about them if they had, in fact, been made. The fact the applicant did not disclose them to the department or to the tribunal before the hearing leads me to conclude the applicant and his witnesses have fabricated the claims that these threats were made. I give significant weight to the willingness of the applicant and his witnesses to fabricate these claims, which leads me to have significant doubts about the credibility of aspects of the claims made more generally.

54.    As I advised the applicant at the hearing, I accept that the applicant’s father was detained and tortured by Syrian security forces 15 or 20 years ago. I note that this is consistent with the document referred to at [14 b] above and with the evidence provided by the applicant at the hearing about his father’s detention by Syrian security forces occurring when he, the applicant, was very young. In relation to the content of the documents referred to at [14 b], [14 d] & [20] above, the applicant and his father gave evidence at the hearing, which I accept, about his father having connections with local politicians and community leaders in his home area. As a result, in the context of my other doubts about the credibility of the applicant’s claims, I find that it is highly likely that the authors of those documents have made statements in them to bolster or otherwise create protection claims for the applicant and not because those statements are true. As a result, I give very little weight to the content of those documents in assessing the profile of the applicant and his family in their home area and throughout Lebanon.

55.    I accept that the two medical reports provided are genuine and, on this basis, accept that the applicant was seriously injured in a motor vehicle accident while riding his motorbike in July 2012. However, I note that neither of these medical reports refer to the injury to the applicant being as a result of deliberate actions by the driver of the motor vehicle or make any other reference to the cause of the accident. As a result, I give them very little weight in assessing the applicant’[s] claims that the incident was a deliberate attempt to harm him, either for a Convention-related reason or otherwise.

7    The Tribunal did not accept that the appellant had a well-founded fear of persecution for a Convention reason on his return to Lebanon. The Tribunal was also not satisfied that the appellant satisfied the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal accordingly affirmed the decision not to grant the appellant a Protection (Class XA) Visa.

The FCC Decision

8    The appellant sought judicial review of the Tribunal’s decision by the FCC.

9    The appellant’s first ground of review alleged that the Tribunal’s decision involved an error of law, “being an incorrect interpretation of the applicable law or an incorrect interpretation of the law to the facts as found by the Tribunal”. Specifically the ground challenged the finding of the Tribunal that the appellant would not suffer significant harm upon his return to Lebanon. The FCC found that the Tribunal correctly applied the law with respect to Convention-based harm and complementary protection and that the findings of the Tribunal in respect of the appellant’s particular claims were open to the Tribunal on the evidence before it. The FCC concluded that this ground “really agitate[d] merits review which [was] not a function of the Court.”

10    The second ground of review was that the Tribunal failed to deal with the “full integers” of the appellant’s claim. The FCC rejected that ground on the basis that the integers of the claim alleged had not in fact been made.

11    The third ground alleged that the Tribunal’s decision that the appellant “did not have a well-founded fear of persecution and/or face significant harm was illogical.” The FCC rejected that ground.

The appeal

12    The original Notice of Appeal raised three grounds. At the hearing an amended Notice of Appeal was handed up amending ground 1 and striking out grounds 2 and 3 which were no longer pressed. In addition, a new ground on a point not argued below was added (“the proposed new ground”).

13    No objection was made to the amendment of ground 1 which now read as follows:

1.    The Federal Circuit Court erred in not finding that the Decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect interpretation of the law to the facts as found by the Tribunal.

Particulars

    In assessing the Appellant’s claim for complementary protection under section 36(2)(aa) of the Migration Act 1958 (Cth) (the Act), the Tribunal erred by:

a.    requiring (at AB 165 [67]) a reason for the risk of harm, when the Act does not require the risk of harm to be for any reason at all;

b.    further, or alternatively, failing to find that being subject of death threats and/or being shot at would amount to a real risk of arbitrary deprivation of life (s 36(2A)(a) of the Act) and thus significant harm.

14    Leave to amend ground 1 in those terms was given.

15    The proposed new ground is as follows:

The Tribunal’s decision was affected by jurisdictional error in that the Tribunal failed to comply with s 425 of the Act by affirming the decision under review for reasons which were not put to the Appellant, and which could not have been reasonably anticipated.

Particulars

    The Tribunal found (at AB 161 [54]) that it was “highly likely” the authors of documents submitted by the Appellant had fabricated the statements in those documents. The supposed falsity of these statements was not put nor was it reasonably able to be anticipated.

16    Leave to amend to add this proposed new ground was opposed substantially for the reason that it had no merit.

Ground 1

17    It was submitted for the appellant that the Tribunal applied the incorrect test at [67] of its reasons for decision in determining whether the appellant satisfied the criterion for complementary protection under s 36(2)(aa) of the Act (as the provision was at the time of the Tribunal hearing). Paragraph 67 of the Tribunal’s decision is referred to above but extracted again for convenience:

67.    In light of my findings set out above in relation to the applicant’s claims to have a well-founded fear of being persecuted because of his actual or imputed political opinion and membership of a particular social group, I do not accept that there is a real risk of the applicant suffering any form of significant harm at the hands of the Syrian government or security forces or militia associated with or supporters of pro-Syrian government political parties or anyone else for these reasons.

18    It was submitted that this approach was incorrect and the Tribunal misdirected itself by failing to consider whether the appellant would suffer significant harm “per se”. Instead, it was submitted, the Tribunal imported two irrelevant matters into the complementary protection test consideration: first, whether the feared harm was Convention-related, by answering the question as to whether the test for complementary protection was satisfied “in light” of the findings in relation to the appellant’s claim to have a well-founded fear of being persecuted for a Convention reason, and secondly, asking whether harm would be at the hands of the Syrian government or security forces or militia associated with or supporters of pro-Syrian government political parties or anyone else.

19    It was also submitted that the Tribunal failed to deal with all the claims about the harms that supported the appellant’s complementary protection claim. The claims said not to have been dealt with were that:

(1)    the appellant’s family’s petrol station, which was also their home, had been looted and on occasion there had been shots fired near and stones thrown at the petrol station (which the Tribunal had accepted);

(2)    the appellant was harmed when he was “deliberately” run off his motorcycle by a car of unidentified men;

(3)    death threats were made against the appellant in that incident including that he would be killed “next time” by the people in the car who ran him off his motorbike; and

(4)    people had made threats to the appellant’s father that they would kill his children.

20    It was submitted that whilst the Tribunal made no findings that death threats had been made to the appellant and/or to his father, the Tribunal did not find that those threats had never occurred at all and so those claims remained alive for the complementary protection claim.

21    The criterion for complementary protection is showing substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. “Significant harm” is defined in s 36(2A) of the Act to mean:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

22    The difficulty for the appellant is that his claim for complementary protection was related to his claim for protection for a Convention reason. The complementary protection claim did not rely upon independent incidents said to be unrelated to the incidents of harm which he advanced in support of his protection claim, which the appellant had claimed were politically motivated. The factual bases for the claim to fear persecution for a Convention reason were not accepted by the Tribunal. Specifically, the Tribunal did not accept that the appellant or his family had been targeted for harm by the Syrian security forces or individuals supporting pro-Syrian government political parties at any time since the appellant’s father was arrested and detained in the late 1990s. In relation to the incidents at the family’s petrol station, the Tribunal found that the appellant and his witnesses had exaggerated the difficulties they were having “with unruly members of the community in their home area who … are refusing to pay for goods and otherwise harassing them”. The Tribunal also did not accept that the injuries that the appellant sustained in the motorbike incident were the result of a deliberate attempt to harm him “either for a Convention-related reason or otherwise”. Nor did the Tribunal accept that death threats had been made either to the appellant or to his father. To the contrary, the Tribunal concluded at [53] that the appellant and his witnesses had fabricated the claims that those threats were made. Moreover, having found that the appellant, his father and grandfather had not been targeted for harm for political reasons since the appellant’s father was arrested and detained in the late 1990s, there was no factual basis for the complementary protection claim in relation to that claimed harm. As the claims were interrelated, there was no jurisdictional error in the Tribunal referring to its findings of fact in relation to the appellant’s claims of a well-founded fear of persecution for political reasons: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, [54]–[57]. The Tribunal’s conclusion on the complementary protection claim was not based on the absence of a Convention nexus but on the Tribunal’s adverse credit findings against the appellant and the other witnesses in relation to the factual claims on which the complementary protection claim depended. The Tribunal did not fail to distinguish between the criterion for a protection visa based on fear of harm for a Convention reason and a complementary protection claim.

23    It was argued that the Tribunal, nonetheless, should have found that the appellant is at risk of significant harm based on the finding that there had been shootings at the petrol station. It was submitted that shootings, even if not intended to kill, can still amount to an arbitrary deprivation of life within the statutory definition of “significant harm”, citing Makaratzis v Greece [2004] ECHR 694, [49]. It was submitted that the fact of any shooting therefore must constitute a real risk that the non-citizen will be arbitrarily deprived of life and thus constitutes “significant harm” within the statutory meaning of that expression. That proposition does not follow. In Makaratzis v Greece the European Court of Human Rights held that Art 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which I was informed provides for protection against arbitrary deprivation of life, covered not only intentional killing but “also situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life”. The present case is far removed from the factual circumstances in Makaratzis v Greece. The Tribunal considered the claim and found that the claim was exaggerated and did not accept that the incidents were anything more than harassment and casual intimidation at the hands of unruly members of the local community. In light of that finding, it was open to the Tribunal to hold there was not a real risk that the appellant would suffer “significant harm” from such incidents.

Proposed new ground

24    The proposed new ground seeks to challenge the Tribunal’s finding at [54] said to be that “the authors of documents submitted by the Appellant had fabricated the statements in those documents”. The issue to which the documents were directed was the claimed ongoing harm suffered by the appellant, the appellant’s father and other members of the appellant’s family as a result of the appellant’s father’s arrest by the Syrian intelligence services and his grandfather’s appearance on Future TV following the assassination of President Hariri. The Tribunal found that:

in the context of my other doubts about the credibility of the applicant’s claims … it is highly likely that the authors of those documents have made statements in them to bolster or otherwise create protection claims for the applicant and not because those statements are true.

The Tribunal accorded “very little weight to the context of those documents in assessing the profile of the applicant and his family in their home area and throughout Lebanon.” It was submitted that the Tribunal failed to accord procedural fairness in that it failed to comply with s 425 of the Act because the Tribunal did not put the appellant on notice that it may reject the statements in the documents as untrue. It was said that the Tribunal’s conclusions in this regard could not have reasonably been anticipated by the appellant because the delegate’s reasons for decision had only put the appellant on notice that the authenticity of the documents may be in doubt.

25    Significantly the Tribunal did put the appellant on notice that although it accepted that the appellant’s father had been detained and tortured by Syrian forces approximately 15 to 20 years ago, country information did not indicate that those who had been targeted for harm by the Syrian forces in the past or their family members faced a risk of harm for that reason. The letters were addressed to that issue. Procedural fairness did not require the Tribunal to put the appellant on notice about what it thought about the reliability of the statements made in those documents. The appellant was put on notice of this issue throughout the course of the Tribunal hearing. The appellant was also on notice that the Tribunal had significant doubts about his credibility.

26    The appellant also contended that the Tribunal did not have the power to make findings of third party misconduct. The Tribunal was, however, entitled to reject those letters as reliable evidence and attribute little weight to them. The Tribunal was not satisfied that the statements in those documents were reliable and it was open to the Tribunal to reject them on that basis. I accept the submission that the proposed new ground has no prospects of success.

Conclusion

27    Leave to amend the notice of appeal to add the proposed new ground should be refused and the appeal dismissed.

Associate:

Dated:    5 July 2016