FEDERAL COURT OF AUSTRALIA

SZUTP v Minister for Immigration and Border Protection [2017] FCA 665

ORDERS

THE COURT ORDERS THAT:

1.    the appeal be dismissed; and

2.    the appellants pay the Respondents’ costs of the appeal.

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

REASONS FOR JUDGMENT

DOWSETT J:

1    The second appellant (the “son”) arrived in Australia on 1 July 2010 on a student visa. The first appellant (the “father”) arrived in Australia on 4 March 2013 on a sponsored visitor visa. On 5 April 2013, the father and son applied to the Department of Immigration for Protection (Class XA) visas under the Migration Act 1958 (Cth) (the “Migration Act”). The son’s application was made as a member of the father’s family, not having his own claim for protection. On 3 October 2013, a delegate of the first respondent (the “Minister”) refused both applications. The appellant applied to the second respondent (“the Tribunal”) for a review of the delegate’s decision.

PROCEEDINGS IN THE TRIBUNAL

2    The father claimed that in October 2009 the son witnessed one of his neighbours (referred to as “Firas”) orchestrating a terrorist attack. This neighbour was said to be a high-ranking officer in the Arabic Democratic Party. The son alerted men in the neighbourhood, who then arrested Firas. The father claims that he and his son were subsequently the ongoing targets of militias attached to the Arabic Democratic Party. The father’s home was targeted and bombed; his sons were the subject of attempted kidnappings; and he and his sons have, on several occasions, come under sniper fire.

3    The following events were alleged (at para 11 of the Tribunal’s reasons):

    18 October 2009 – attempted abduction of son;

    28 October 2009 – father was targeted by snipers;

    15 November 2009 – father was again targeted by snipers;

    23 December 2009 – father was again targeted by snipers;

    20 July 2011 – home bombed;

    11 August 2012 – son [not the second appellant] threatened and assaulted in the home by armed gunmen who asked about the whereabouts of the father and his son;

    13 September 2012 – house was “shot up”, with damage to the furniture and broken windows.

The father applied for his sponsored visitor visa on 2 January 2013. The visa was granted on 7 January 2013. He departed Lebanon on 4 March 2013, arrived in Australia on 4 March 2013 and applied for protection visa on 5 April 2013.

The father

4    The Tribunal did not find the father to be “a credible, truthful, or reliable witness concerning these claims”. It considered that his evidence was evasive, inconsistent, and included non-credible claims. The Tribunal outlined a number of particular reasons for this conclusion.

5    Firstly, the father and his family remained, for the most part, living at the home which he claimed had been the subject of repeated attacks. The Tribunal considered that their having remained at the same address since 2009 was inconsistent with claims that they had been specifically targeted and had a genuine fear that they would suffer harm (see pars 18-20). Secondly, the appellants gave inconsistent evidence about past events, including different accounts of how they came to the attention of Firas, and different dates of sniper attacks. At the hearing it was said that their house had been bombed in February 2013, which event was not included in previous written materials, despite its being the most recent attack on the home at the time the visa applications were made.

6    The Tribunal considered the contents of a psychological report concerning the father, but was not satisfied that the inconsistencies and changes in his evidence were due to any inability to concentrate or discuss his claims (see paras 21-22).

7    The Tribunal was also concerned about inconsistencies in the appellants’ evidence concerning the target of the violence said to have occurred between 2009 and 2012. In his statement the father had said that the incidents were directed against him and his son, but at the hearing, the son told the Tribunal that “basically the problem was with (the son), not with anyone else”.

8    Fourthly, the Tribunal considered that the father had not provided truthful evidence concerning his financial position. When asked by the Tribunal, he initially said that since 2009 he has been very poor. When the Tribunal noted that he had satisfied the 2012 requirement to demonstrate his son’s capacity to pay for student fees and living expenses in Australia (the equivalent of $48,000), he said that the whole of the money in his account (the equivalent of $60,000) was borrowed. The Tribunal asked the father why he had told the delegate that some of the money had come from his work, his wife’s inheritance, and compensation payouts. Initially, he did not respond. In response to subsequent questioning on the topic, “he said his eardrums are burst, with any shock he falls to the ground and he can’t see and he can’t hear and he can’t focus or concentrate”. The Tribunal’s concerns were heightened by the fact that the father had undertaken a pilgrimage to Saudi Arabia from 20 October 2012 to 5 November 2012 (less than three months before his Australian visa was granted). The Tribunal considered that his decision to devote funds to the pilgrimage, instead of using his funds to re-locate himself and his family elsewhere in Lebanon, indicated that he did not have a genuine fear of harm (see paras 27-32).

9    Fifthly, the Tribunal was concerned about the delay in the father’s leaving Lebanon, once his Australian visa had been granted on 7 January 2013. He did not leave Lebanon until 3 March 2013. The son claimed that the immigration agent had not told the father that his visa had been granted. The father confirmed this. However the father had given the delegate other reasons for his delay – namely that his house had been bombed, and that he had to reinforce it before departing. The Tribunal was not prepared to accept those explanations for the delay, and was “concerned that this delay indicated that the father did not have a genuine fear of harm, given that he felt no sense of urgency about leaving Lebanon”.

10    As noted above, the Tribunal considered a psychological report concerning the father. The report was dated 28 March 2013 and was based on interviews on 21 and 23 March 2013, just after his arrival in Australia, and shortly before he applied for a protection visa. The report stated that he was suffering from post-traumatic stress disorder, with depression and anxiety. He had complained of, among other symptoms, poor capacity to concentrate and poor memory. However the report did not provide any information as to how the diagnosis had been reached, other than upon the basis of the father’s self-reporting. Further, from its own observations, the Tribunal was satisfied that the father was able to understand questions, give evidence and participate at the hearing. The Tribunal heard a recording of the delegate’s interview with the appellants and itself saw and heard them on 11 June 2014. Hence the Tribunal had a good opportunity to assess the father’s ability to participate in the process as at the time of the hearing, notwithstanding the psychologist’s report.

11    The Tribunal saw an untranslated bank cheque, said to show compensation paid by the government for damage to their home, and photographs which showed damage to a building which the applicants said was their home. The Tribunal accepted that the father had received compensation for damage to his home, but did not accept that the damage was the result of specific targeting. The Tribunal accepted that the photographs depicted the family home, but did not accept, in light of its credibility findings, that the father, his family, or his family home, were the subject of specific targeting or harm. The Tribunal considered that, having regard to country information, the home was, on one occasion, accidentally caught in crossfire.

12    In summary, the Tribunal concluded that the father was not a truthful witness, and that he had “fabricated an account of events upon which he has based his protection claims”. The Tribunal was not satisfied that the father had a well-founded fear of persecution at the hands of Firas or other members of the Arabic Democratic Party.

The son

13    The Tribunal did not find the son to be “a credible, truthful, or reliable witness concerning these claims”. The Tribunal considered his evidence to be inconsistent, changing, and included non-credible claims. Three particular reasons were outlined for this conclusion.

14    At paras 50-54, the Tribunal said:

50.    Firstly, the Tribunal was concerned about the son’s evidence concerning his activities and residence after he had suffered an attempted abduction. The son had told the Tribunal that he assisted his father to do the statement and that the contents were true and correct. According to the statement, on 8 October 2009 the son had reported on Firas, a neighbour who lives directly opposite the family home, and is a high ranking officer of the Arabic Democratic Party, who had been engaged in terrorism activities and subsequently released by the secret intelligence section of the army. He also told the Tribunal that after this occurred, he went home, and he was shot at every few days, snipers were after him. He remained living there until he went to Beirut 6 months later (March 2010), and he stayed in Beirut for a further 3 months until he came to Australia on 30 June 2010.

51.    As put to both applicants, the Tribunal noted the son was known to Firas, who had organised the abduction attempt, but not only did the son remain living at home, he also stayed there for six months thereafter. The Tribunal put to the applicants that in the circumstances, his actions in returning home, and remaining living in his home, while being the victim of continual attempted murders, was not credible. In response the son said that he was really in fear but he had hope because the army checkpoints were still near the family home, so he was encouraged to stay at his place as no one could attack his place if the army was there. The Tribunal does not find his explanation persuasive, noting that despite the army’s proximity, he claims that he was still the subject of sniper attacks. The Tribunal considers that the son’s evidence that he remained at home in the circumstances to be not credible.

52.    Secondly, the Tribunal was concerned about the son’s evidence about past events, as discussed at hearing and put to both applicants pursuant to s. 424AA of the Act. In this regard, the Tribunal refers to and relies upon the matters put to the son in paragraphs 18-19, 21-22, 24-26, and 30 above. The Tribunal considers that these concerns apply equally to the son, who said that he assisted his father in preparing the application form/statement, and who said that the contents of the statement were true. The Tribunal considers that the concerns raised undermine the son’s credibility, that he held any genuine fear, and that the past events claimed occurred.

53.    Thirdly, the Tribunal was concerned about the son’s delay in lodging a protection visa application noting that he had arrived in Australia in July 2010 (holding a student visa) but that he had delayed claiming asylum until April 2013. The Tribunal accepts that the son was, at all relevant times, holding a valid student visa. However, as put to the applicants pursuant to s. 424AA of the Act, it was concerned that this delay indicated that the son had no genuine fear of harm in Lebanon. The son said when he first arrived in Australia he saw a solicitor about applying for refugee status, but on the news he heard about the Australian government wanting to send refugees back to their own countries or to an island, so because he had a valid visa for two years, he thought he had plenty of time to apply for protection. The Tribunal considers this is a plausible explanation in light of his valid visa, however in light of all the other difficulties, it does not accept this explanation, and finds that the son, who claims that he was the initial and primary target in Lebanon, delayed for almost three years in claiming asylum in Australia, and that this undermines his claim to have been targeted in the past and to have a genuine fear.

54.    The Tribunal further notes that the son told the Tribunal that after the attack on the home in August 2012, he was sure that they were still after him and would kill. In the circumstances, the Tribunal considers the son’s further delay of eight months in claiming asylum to be indicative and that he and his father have fabricated their claims.

15    At para 57, the Tribunal held:

57    On the basis of the adverse credibility finding, the Tribunal does not accept that the son, his family, or his family home were targeted for Firas or other members of the Arabic Democratic Party, nor that there is any real chance (or risk) that they would come to the adverse attention of, or be targeted by Firas or other members of the Arabic Democratic Party now or in the reasonably foreseeable future. The Tribunal considers that the son has fabricated his claims in relation to being specifically targeted for harm by anyone. The Tribunal is not satisfied that the son has a well-founded fear of persecution at the hands of Firas or other members of the Arabic Democratic Party, now, or in the reasonably foreseeable future.

country information

16    The Tribunal also considered relevant country information concerning the appellants’ home area and the risk of general violence. Having considered that information, the Tribunal did not accept that there was generalised violence throughout Tripoli, or in the areas outside Tripoli such that there was a real risk of the father or son suffering harm by reason of their being Sunni men (see paras 68 and 71). Further, the Tribunal found that it would be reasonable for the father and son to relocate to another area in Tripoli (or even Beirut). The Tribunal did not accept the submissions made by the father and son that they could not have afforded to rent or buy another property in Lebanon.

the tribunal’s conclusions

17    The Tribunal was not satisfied that either or both of the appellants proved a well-founded fear of persecution for a Convention reason in the reasonably foreseeable future. The Tribunal did not accept that either or both of the appellants would face a real risk of significant harm if returned to Lebanon.

PROCEEDINGS below

18    In an amended application to the Circuit Court dated 11 November 2014, the appellants sought review of the Tribunal’s decision, identifying seven grounds. They may be summarized as follows, using the paragraph numbers used by the appellants:

1.    The Tribunal acted contrary to the evidence concerning the risk of sectarian violence.

2.    The Tribunal accepted that the father’s house had been targeted and bombed, yet the Tribunal concluded that the father and son were not credible witnesses, and that their claim was fabricated.

3.    The Tribunal disregarded the father’s psychological problem and ignored the possibility that any inconsistency was as a result of his psychological problem. Further, it was unreasonable for the Tribunal to come to the conclusion that the father and son were not refugees.

4.    The Tribunal “acted against facts” (concerning the country information) (especially at para 59 of the Tribunal’s decision).

5.    The Tribunal “acted contrary to the contents of” a letter from the father to the Minister’s delegate.

6.    The Tribunal had no basis for drawing “adverse information” against the father. The Tribunal had evidence of depositing money which should have led the Tribunal to accept that the father was credible and poor.

7.    The Tribunal “failed to assess properly the relocation in Lebanon, especially after … [the father] was diagnosed with [a] medical condition.” The Tribunal made an unreasonable decision.

19    The primary Judge addressed each of the grounds and concluded, concerning the respective grounds:

1.    This ground was, in effect, merely disagreement with the adverse findings based upon the Tribunal’s understanding of the country information.

2.    The Tribunal did not accept that the appellants’ home had been targeted. It accepted that the home had been caught in crossfire on one occasion, not that the appellants had been specifically targeted for harm.

3.    The Tribunal took into account the psychologist’s report. The adverse findings were open to it and cannot be said to have been unreasonable or illogical.

4.    It was a matter for the Tribunal to determine which country information it accepted. No jurisdictional error was made out.

5.    The Tribunal was not bound to accept the claims advanced by the appellants (as in the letter from the father). This was, in substance, a disagreement with the adverse credibility finding. No jurisdictional error was made out.

6.    This was, in substance, a disagreement with the adverse credibility finding. Those adverse credibility findings were open. No jurisdictional error was made out.

7.    The issue of relocation was an alternative finding. There was no failure to take into account the psychologist’s report (relating to the father’s medical condition). No jurisdictional error was made out.

20    From the bar table the son argued that the Tribunal should have made further enquiries. The primary Judge found at [46] that there “was no obvious inquiry about a critical fact that the Tribunal was required to pursue. It was a matter for the applicants to establish the claims advanced.” At [30] and [31], the primary Judge referred to other oral submissions. First, the son submitted that the Tribunal had not considered the psychological report. The primary Judge correctly concluded that the report had been considered.

21    Second, the son submitted that he had been the target of a kidnapping attempt and a sniper attack, and that his brother had been assaulted and questioned about the whereabouts of the father and the son. These matters were all raised before, and considered by the Tribunal. The primary Judge rightly concluded that he could not re-visit these factual matters.

22    The primary Judge concluded that the amended application failed to disclose any jurisdictional error and dismissed it.

23    I should say something about his Honour’s observations concerning the country information. At [33] and [37] his Honour seems to have suggested that the Tribunal could accept or reject parts of such information. Whilst that proposition may be strictly true, it is difficult to see how, or why a Judge could or would accept or reject some, but not all of such information, at least in the absence of any contradictory material. However, when one looks at the passages concerning the country information, it seems that his Honour was referring to the way in which such information was used, rather than to any question of acceptance or rejection.

PROCEEDINGS IN THIS COURT

24    By notice of appeal dated 28 November 2016, the appellants raise the following grounds:

1.    His Honour … dismissed the application and yet has not given his judgment.

2.    The Tribunal failed to take into consideration the Psychologist's Report and denied me natural justice and fairness as the Member questioned me and I was not in a position to answer properly because of my depression.

3.    The Tribunal did not have evidence to attack my credibility and precisely said that the applicants are not credible, truthful or reliable witnesses. That statement is wrong because the Member of the Tribunal had no evidence that I was able to participate properly in the interview and the Tribunal ignored my disturbed situation and His Honour ignored the transcript and the evidence given.

4.    The Tribunal had evidence from country information yet failed to understand the relocation issue and how we could relocate to a safe area. The Tribunal accepted that our home was targeted and bombed as per Court Book p.44-48 and the Tribunal fell into error to conclude that we fabricated our claim.

25    Ground 1 reflects the fact that the primary Judge had not, at the time of filing the notice of appeal delivered written reasons. Counsel for the Minister submitted that his Honour initially gave ex tempore reasons and subsequently published the written reasons. This ground discloses no appealable error.

26    Grounds 2, 3 and 4 allege error by the Tribunal. At the hearing the son said that “the judge did not fix anything and did not correct anything …. that the RRT has done”. However the present proceedings concern alleged errors by the primary Judge. I shall proceed upon the basis that these grounds should be understood as allegations that his Honour erred in failing to find that the Tribunal had committed these alleged errors.”.

27    With respect to ground three, and as the primary Judge found, the Tribunal considered the psychological report but acted upon its own assessment of the father’s evidence, having heard a recording of an interview with the delegate and observed him in the course of its own hearing. His Honour correctly dismissed this ground. It follows that ground 3 must also fail.

28    Ground four raises two distinct issues, namely:

    the Tribunal’s understanding of the “relocation” issue; and

    the Tribunal’s acceptance of only part of the appellants’ evidence concerning targeting and bombing of the family home.

29    The alleged failure to understand is not particularised and is not evident from a reading of the Tribunal’s decision. The appellants’ oral submissions suggested that it was unreasonable to expect the family to re-locate, given that the father was in poor financial circumstances. However the Tribunal did not accept that he was in significant financial trouble, given his demonstrated capacity to support his son in Australia and his pilgrimage.

30    As concerns the evidence about attacks on, or bombing of the house, it is clear that the Tribunal accepted only part of the evidence in this regard. It was entitled to take that approach.

31    In oral submissions, the appellants raised the following grounds:

(1)    the Tribunal “did not take into consideration that the area we are living in faced a lot of trouble … and the damage that the area has suffered”;

(2)    the Tribunal took into account country and area information “but they did not present it to me and give me the right to reply”;

(3)    the Tribunal did not take into consideration the mental situation of the father, or the psychologist’s report on his condition; and

(4)    the Tribunal erred in concluding that the appellants had the financial means to relocate.

32    In relation to proposed ground (4), the Tribunal considered the father’s financial position at paras 27-32. The Tribunal’s finding, that it did not believe the appellants’ evidence concerning their financial position, was reasonably open to it, as the primary Judge found.

33    Ground two was not raised before the primary Judge. The appellants made an application to amend their notice of appeal to include grounds (2) and (4). Having heard the submissions concerning those grounds, I dismissed the application to amend on the basis that the proposed grounds enjoyed no prospects of success.

34    In relation to proposed ground (2), the appellant contended that he should have been afforded an opportunity to see the reports which the Tribunal referred to in its decision. However the transcript of proceedings before the Tribunal shows that the relevant information was put to the appellants, and that they had an opportunity respond. They did not ask to see the sources of the Tribunal’s information. There was no other reason for the Tribunal to show the material to them.

35    As to ground (3), the Tribunal clearly considered the psychologist’s report. It was dated 28 March 2013. The Tribunal hearing took place on 11 June 2014. The Tribunal chose to form its own view of the father’s condition. It had a reasonable opportunity to assess his capacity to give an account of relevant matters.

36    In relation to ground (1), the risk of general violence was canvassed extensively by the Tribunal when it considered relevant country information. The appellants may not agree with its conclusion, but there can be no suggestion that the issue was not considered. No error is apparent from the Tribunal’s decision in this respect.

37    As is clear from the above, the appellants have failed to make out any error in the primary Judge’s decision. The appeal must be dismissed.

Associate:

Dated:    16 June 2017