FEDERAL COURT OF AUSTRALIA

SZVXU v Minister for Immigration and Border Protection [2018] FCA 1257

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave rely upon the affidavit of Mr Sarkis 29 July 2015 on the hearing of the appeal.

2.    Leave to amend the Notice of Appeal is refused.

3.    The appeal is dismissed.

4.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    On 26 April 2013, the appellant, a 33 year old citizen of Lebanon, applied to the Department of Immigration for a Protection (Class XA) Visa (protection visa). On 29 April 2014, a delegate of the Minister refused that application. He applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), on 9 May 2014. By a decision of 25 November 2014, the Tribunal affirmed the delegate’s decision not to grant the protection visa.

2    On 29 December 2014, the appellant made on application to the Federal Circuit Court of Australia (FCC) pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) seeking review of the Tribunal’s decision. By a judgment dated 31 October 2017, that Court dismissed the application for review.

Background facts

3    As mentioned, the appellant is a Lebanese citizen who arrived in Australia on 12 May 2013. His claim for a protection visa was founded on assertions that if he were to return to Lebanon he would be at risk of harm because he was a Sunni Muslim, a committed supporter of the Future Movement, opposed to the Syrian Regime Alawis and Hezbollah and because his ambition was to fight Syrians and now Alawis in Tripoli. He also claimed that he feared harm because of an ongoing dispute between his family and a family called the Hassoun family. In this latter respect he claimed that his 13 year old cousin was attacked by the Hassoun family in January 2013 and in subsequent clashes a member of the Hassoun family has been killed.

The Tribunal’s decision

4    The essence of the Tribunal’s decision was that it disbelieved the appellant’s evidence proffered in support of his claims. Whilst it did not discount the existence of sectarian violence in the area of Tripoli, Lebanon, where the appellant lived, it held he was able to relocate within Lebanon to Beirut where he would not be at risk of harm.

5    Without doing disservice to the long, careful and detailed reasons of the Tribunal it found:

(a)    That it was not satisfied the appellant or members of his family had been targeted by the Hassoun family or that he had been specifically targeted.

(b)    The appellant’s evidence in relation to the issues surrounding the Hassoun family were vague, confused and unpersuasive and he had not provided any satisfactory evidence as to why he or his family might be targeted.

(c)    The appellant’s claim alleging that his 13 year old cousin had been involved in an altercation with the Hassoun family was rejected as being untrue. The evidence surrounding it was vague, disjointed and unpersuasive.

(d)    The Tribunal found there was no real chance that the appellant or his family would suffer serious harm from the Hassoun family because of the appellant’s membership of his own family or for any Convention reason.

(e)    The Tribunal accepted the appellant was a member of the militia known as the Khodr El Masri Martyr Militia and in that role had engaged in armed clashes with Alawites in neighbouring suburbs. However, it rejected the suggestion he had any leadership role in the conflicts and that his position rose higher than a militiaman.

(f)    The Tribunal was satisfied by the Country Information that the appellant did not face a real chance of serious harm by reason of his opposition to Hezbollah or because of his involvement in sectarian clashes in Tripoli.

(g)    The Tribunal also concluded it was not satisfied the Lebanese army was involved in harming current or former members of the appellant’s militia.

(h)    The Tribunal was not satisfied the appellant was at risk from the Lebanese army because of his criticism of the killing of two sheiks.

(i)    The Tribunal was not satisfied the appellant would suffer serious or significant harm at the hands of Hezbollah, the Lebanese army, pro-Syrians or the Syrian Regime. The Tribunal rejected claims that between April and August 2014 people, who were said to be Alawites, directed threats towards him.

(j)    The Tribunal did accept the appellant would face serious harm by opposition militia forces if he were to return to his home neighbourhood and continue to engage in sectarian violence there. It was also found he would suffer significant harm in his home in Tripoli.

(k)    The Tribunal found that, if the appellant were to relocate to Beirut, he would not engage in sectarian violence and nor would he be concerned with the conflict in Tripoli. In Beirut he would be entitled to express his views in support of the militia without threats of harm.

(l)    In the circumstances the Tribunal found it would be reasonable and practicable for the appellant to safely relocate to Beirut where it would be reasonable to expect that he would not be at any real risk of significant harm.

The application to the Federal Circuit Court

6    As the learned judge below noted, the only ground of appeal to the FCC was:

The Tribunal has misunderstood my case and misapplied the law.

7    His Honour rejected the suggestion that any of the purported grounds revealed jurisdictional error by the Tribunal. On the face of the Tribunal’s reasons it considered in detail each of the claims which had been variously made by the appellant during the course of the consideration of his protection visa application, as well as the reviews by the Tribunal (at [35]). The Court found there was nothing in the Tribunal’s reasons to suggest it had misunderstood any aspect of the claims, or its findings of fact were not reasonably open to it on the material. His Honour held the Tribunal’s reasons for making the particular findings of fact were probative of the material. There was also no suggestion it had misapplied the law.

8    In relation to the decision more generally the FCC found:

(a)    That the Tribunal’s application of the relevant law with respect to the issue of the ability of the appellant to internally relocate was compliant with the authorities.

(b)    The Tribunal was not at fault for putting inconsistencies or gaps in the appellant’s evidence to him for the purposes of s 424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190).

(c)    What the appellant told the delegate as was recorded by the Tribunal did not constitute a “rejection, denial or undermining” of his claims to fear harm.

(d)    The Tribunal’s reasons disclosed that in its hearings there was much discussion of what the appellant had said to the delegate at the initial interview. It cannot be said in this respect that the Tribunal failed to discharge its obligation under s 424A(1) of the Act.

(e)    That the appellant’s written submissions to the Court merely raised factual issues surrounding the Tribunal’s decision and not matters going to questions of law.

(f)    Subsequent to the hearing further written submissions were provided to the FCC that may have raised an issue as to whether the Tribunal failed to consider relevant Country Information provided to it by the appellant which, he says, was relevant to his ability to relocate. A number of documents were identified as having been provided to the Tribunal. In this respect, the Court below noted:

The Tribunal is not required to set out in its decision all of the evidence which it considers. It only needs to set out the evidence on which its findings are based.

The obligation of the Tribunal is to address all of the appellant’s claims and aspects of those claims. It is not suggested the articles raised any additional claims or aspects of the existing claims.

(g)    In relation to the question of whether the Tribunal was required to consider the objections to relocation, the appellant had not asserted the media reports to which he referred contained any additional arguments as to his concern in that respect. Largely, they were said only to be confirmatory of his claim.

(h)    The weight to be ascribed by the Tribunal member to Country Information is a matter for it, but merely listing a piece of information in its reason for decision does not mean the Tribunal gave it active consideration.

9    In relation to this last issue the appellant’s complaint seems to be that not all of the documents were referred to in the Tribunal’s reasoning. However, the Tribunal did accept there was a real chance of harm to the appellant in his local neighbourhood in Tripoli from opposing militia forces. That “issue” was found by the Tribunal in favour of the appellant. That being so it apparently accepted the substance of the information contained in the documents to which it did not refer. It would follow that it does not assist the appellant to say that the Tribunal did not specifically identify these documents in its reasons.

10    The Court below specifically identified what information was delivered to the Tribunal. That included an identification of documents relating to the conflict between the Hassoun family and the appellant. The Tribunal’s reasons referred to it receiving Country Information, which, on a fair reading, would appear to include all the Country Information submitted by the appellant.

11    It was held the Tribunal’s consideration and determination of the issue of relocation was based on all of the documents provided to it, including those provided by the appellant.

12    In relation to the remainder of the documents, some of which the appellant says were not considered, the Court found it was for the appellant to establish, on the balance of probabilities, that the Tribunal did not consider the relevant evidence (see [90] of the reasons). However, it is clear that the Tribunal specifically raised the issue of sectarian violence in Tripoli and outside of Tripoli at the hearing. This was in the context of it considering whether there was a real chance of serious harm from sectarian violence by opposing militias if the appellant were to return to his neighbourhood. In relation to other areas in Lebanon, the Tribunal specifically identified that the Country Information did not suggest sectarian violence which existed in the appellant’s neighbourhood had spread to Beirut. Given the Tribunal specifically referred to that issue and the Country Information, he would need to show that, the Tribunal overlooked the document to which he specifically refers concerning sectarian violence in Beirut. The learned judge below held he was not able to do that. The learned judge also identified that the appellant would need to show that this critical piece of evidence would have led to a different outcome ([94]). It was found that even though the Tribunal made no explicit reference to the particular piece of Country Information, no reasonable inference could have been drawn that it failed to take the specific media articles into account. In the result, the application was dismissed.

Proceedings before this Court

13    The grounds asserted by the appellant in this case are obscure. They are:

Ground 1: Jurisdictional error – the Federal Circuit Court failed to consider the applicant’s contention, failed to adhere to statutory requirements and thereby failing to exercise its jurisdiction and consequently making a jurisdictional error.

Ground 2: Jurisdictional error – the Federal Circuit Court failed to accord the applicant procedural fairness.

14    An affidavit was filed in the appeal by the appellant but it contains only the reasons of the Federal Circuit Court, the Tribunal and those of the delegates.

The appellant’s written submissions

15    When this matter was called on for hearing in the May sittings of the Full Court the appellant appeared and was assisted by a friend. The Minister appeared by his solicitors. The appellant had not filed written submissions and he sought an adjournment. This was not opposed by the Minister.

16    The appellant has now filed written submissions on which he seeks to rely. The Minister has filed submissions in response.

17    The written submissions of the appellant seek to raise two grounds, neither of which find support from any of the contentions in the Notice of Appeal. Each arises from an assertion that the Tribunal did not correctly apply the relevant law to the matter of internal relocation. The relevant law is set out at [5] of the appellant’s submissions which reads:

In DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56, at [40]; “The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship [2007) HCA 40; (2007) 233 CLR 18 at [24); and SZFDV v Minister for Immigration and Citizenship [2007) HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994) FCA 1253; 52 FCR 437 at 442-443, especially at 443 C-D”.

18    The appellant then says the Tribunal did not apply the test of whether relocation was practicable by considering the framework set by the particular objections raised to relocation. In his written submissions his main, if only, point is that the Tribunal put to the appellant a proposition about his ability to relocate to Beirut to avoid harm from the Housan family but did not allow him to respond. The appellant says it was put to him that:

“were to go and live in Beirut, the Housan family given that their stronghold is in Abu Samra, they are unlikely to come looking for you in Beirut. Do you want to say something? Mr Merhab why don’t you think about things, perhaps there are other things you want to tell me? let me talk to your witness and then I will come back to you” (AB 304 at [15]).

19    It is then said the appellant was not invited to say anything further and this has denied him natural justice and a failure to accord him natural justice.

20    The Minister opposes the raising of these new grounds on appeal. He is correct to submit that leave is required. The principles governing the exercise of discretion to grant leave to raise new grounds on appeal were recently identified in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 (Murad) (per Griffiths, Mortimer and Perry JJ) where their Honours said:

19     The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]-[90]):

46     In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

47     In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

48     The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

21    The Minister also correctly submits that in order to advance a ground of appeal it must be founded on some error by the primary judge. The Federal Court does not exercise original jurisdiction in migration matters in accordance with s 476A of the Act, save when certain statutory criteria are met. It has been accepted in this Court that appeals are not an occasion to reconsider the Tribunal’s reasons as distinct from considering the correctness of the reasons of the judge below: see SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[8] and CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [13]-[14].

22    As was said in Murad, the Court would generally require an adequate explanation for the failure to take the point in the Court below. In that Court the appellant was represented by solicitors and the points now advanced were not taken. No explanation has been provided as to why that is so.

23    The Minister also submits that in order to advance the new grounds of appeal the appellant needs to adduce fresh evidence. That fresh evidence is in the form of an affidavit of a Mr Laba Sakis, who is apparently an interpreter and he deposes to having listened to recordings of the hearing before the Tribunal and transcribing the same. The claimed transcript is attached to the affidavit. The affidavit was filed with the Federal Circuit Court on 6 August 2015, however it was not relied upon at the hearing in that Court. At paragraph 26 of the reasons for judgment of the primary judge it is observed that the appellant’s representatives before that Court was asked specifically if the appellant sought to rely on that affidavit and his Honour was told that the appellant elected not to do so. There is no explanation as to why that decision was made. The absence of any explanation in these circumstances weighs heavily against the granting of leave.

Merits of the proposed grounds

24    In considering whether leave ought to be granted to allow the appellant to advance the new claims a consideration of their merit is warranted. That also impacts upon whether leave should be given to adduce further material.

25    The Minister submits that in making its internal relocation finding, the Tribunal considered all of the evidence provided by the appellant and his various claims. In particular the Tribunal formed the view that the appellant would not engage in sectarian violence if he were to internally relocate to Beirut (AB245 [56]). It found that there was no real chance that the appellant would be subject to serious harm if he were to relocate to Beirut even if he were to continue to express his views in support of Future Movement, as he had done previously. The Tribunal also considered that the appellant was relatively young and resourceful and had been able to find employment to support himself in Australia. He had been able to support his family previously by working in a number of different low skilled jobs. In this context the Tribunal was satisfied it would be reasonable and practicable for the appellant to relocate safely to Beirut. As the Tribunal’s reasons ([55]-[59]) show, it specifically considered the appellant’s ability to relocate to Beirut given the particular circumstances which he had identified and on the findings of fact which it made. The conclusions of the Tribunal satisfied the authorities referred to because the Tribunal considered whether it was practicable in the particular circumstances of the appellant to relocate and in doing so considered the framework of his particular objections.

26    In the course of oral submissions the solicitor for the appellant expanded the new grounds appearing in the written submissions. He argued that the Tribunal had failed to have regard to the claim that the appellant was at risk from harm at the hands of Hezbollah in Beirut. This, as the solicitor for the Minister argued, was a new argument which had not been raised previously. That submission was accurate and, if it were framed properly, it would be a claim that the Tribunal constructively failed to consider the appellant’s claim because it failed to consider an integer of the claim which was advanced.

27    It was also submitted that the appellant was misled by the questioning of the Tribunal such that he was prevented from giving further evidence about his fears of harm from Hezbollah in Beirut. As the solicitor for the Minister identified there is an evidential difficulty with that submission being that there is no evidence from the appellant that he was misled or perceived that he did not have the opportunity to inform the Tribunal of his concerns.

The new claim advanced in the written submissions

28    It is appropriate to first consider the new ground raised in the written submissions, being that the appellant was not given an opportunity to respond to the proposition that he would not be at risk from the Housan family were he to relocate to Beirut.

29    The passage of the transcript (at AB304) on which the appellant relies and which is set out above, does not establish that the appellant was denied the opportunity to give evidence about that particular topic. It is apparent from a reading of the transcript as a whole that pauses in the conversation are not recorded. On many times throughout the hearing, as appears from the transcript, the member frequently offered the appellant an opportunity to respond to questions and where he wanted to do so he was not hesitant in providing an answer. The passage at AB304 shows that the appellant was invited to provide a response to the proposition that he would not be at risk from the Hassoun family in Beirut because their stronghold is in Abu Samra. It is most unlikely, having invited the appellant to respond, the member then immediately asked him to think about things and provide information later. The likely scenario is that the appellant was invited to say something in response but did not say anything, whereupon the member advised him to think about things. Indeed, immediately after that exchange the appellant raised a further topic with the member. There is nothing to suggest that he was inhibited from responding to the member’s question.

30    The transcript in evidence reveals that after a period of time, the member again asked the appellant if he wished to say anything. The member said to him (at 311), “Alright Mr ….. was there anything else that you wanted to tell me because I have finished asking all the questions that I wanted to ask you”. The period of time between the discussion concerning the Housan family and this question was not so long that he would have forgotten the proposition about relocation.

31    Additionally, the Tribunal member granted the appellant an opportunity to provide any further evidence following the hearing, including other evidence or anything else he wanted to provide. In these circumstances the appellant was given every opportunity to advance his case, including any evidence, to the Tribunal.

32    The Minister also points out that shortly before the passage in the transcript (at AB304) on which the appellant relies he was asked whether he wanted to say anything about whether he would be at risk of harm in Beirut. This was a further occasion for him to advance his case and anything with which he wished to support it.

33    The Minister also points out that during the process before the delegate, the question of whether the appellant could safely relocate to Beirut was raised with him and he was invited to provide a written explanation as to why he would not be able to if he believed that was the case.

34    It follows that there is no substance in the argument that the appellant was not given an opportunity to comment on the proposition that he would be at risk of harm were he to live in Beirut.

35    At the hearing the appellant also raised the new ground that he was misled by the Tribunal when it said that it believed him that, on his journey to Beirut, he stayed in the airport for 14 or 15 hours. The submission was to the effect that this statement from the Tribunal caused him to think that it accepted his claim of fear of harm from Hezbollah in Beirut and that he need not say anything further about it. Again, as the Minister submits, there is no evidence to support that conclusion. As the passages cited and and course of the hearing identified above reveals, the ability of the appellant to relocate in Beirut was an important issue to the Tribunal and he was invited to provide all information and evidence relating to that topic. It is evident that he was afforded every opportunity to advance his case in that regard.

The new argument raised at the hearing

36    On the hearing of the appeal the appellant raised a further argument to the effect that the Tribunal did not consider his claim that he would be at risk of harm from Hezbollah if he lived in Beirut. However, it is apparent that the Tribunal did consider whether, outside of Tripoli, he would be at such a risk. It noted that sectarian violence was concentrated around particular suburbs of Tripoli and accepted that Sunni militia are at high risk from harm from sectarian violence there. However, in relation to the position in Beirut, it said at [48]:

In the statement accompanying his application for a protection visa the applicant claimed that he feared Alawis, Hezbollah and the Syrian regime. At his interview with the delegate he claimed that the LAF is effectively Hezbollah’s army. At the hearing he claimed that he would be at risk of being killed by Alawis and the LAF. He did not pursue his claims in relation to the Syrian regime. The country information before the Tribunal indicates that Hezbollah does not have a strong presence in Tripoli. The Tribunal has found no information in any of the sources consulted to suggest that Hezbollah specifically targets members of the Sunni sectarian militia in Tripoli. In his statement in support of his application for a protection visa, the applicant claimed that he is opposed to Hezbollah. While over the past few years some high profile politicians or security personnel who have actively opposed Hezbollah have been assassinated, the Tribunal has found no evidence in the sources available to it to suggest that individuals with the applicant's profile who are opposed to Hezbollah's policies and speaking out against the organisation, without more, are at risk of facing serious harm. Nor has the Tribunal found any information to suggest that Hezbollah has specifically targeted members of Surmi militias, including Khodr El Masri group, in Tripoli. The Tribunal is not satisfied that the applicant faces a real chance of serious harm for his opposition to Hezbollah or his involvement in sectarian clashes in Tripoli.

37    The Minister submitted that this passage was a complete answer to the new ground raised by the appellant because it shows that the Tribunal considered the appellant’s claim that he was at risk of harm from Hezbollah. This was particularly so given that the Tribunal identified that the sectarian violence was specially located in the suburbs of Tripoli and involved persons involved in the fighting. It specifically found that there was no evidence in the sources available to it to suggest that individuals with the applicant’s profile are at risk of facing serious harm from Hezbollah in Beirut. It said at [58] – [59]:

At the departmental interview and at the hearing the applicant referred to the alleged killing of other friends and militiamen, arguing that he can be reached anywhere. However, his subsequent written evidence to the department and his oral evidence to the Tribunal indicate that Abadi Khazana, Rami Mrad and Abu Jamal Nuhaili were killed by Alawi fighters, including snipers from Jabal Mohsen, in or around Tripoli. Indeed, upon returning to Lebanon in October 2014, during his short stay the applicant had stayed mostly in Beirut. The applicant did not claim that he had been pursued or targeted by anyone in Beirut.

The Tribunal is satisfied that there is no real chance that the applicant will be subjected to serious harm if he were to internally relocate to Beirut.

38    On a fair reading of the reasons of the Tribunal it was alive to the contention that the appellant would be at risk of harm from Hezbollah because he had been a militia man in Tripoli. However, it is also clear that the Tribunal considered that he would not be at risk of harm in Beirut where he would not be engaged in sectarian fighting. It, very properly, considered whether the appellant’s political views, as a supporter of the Future Movement, would have put him at risk of harm from Hezbollah in Beirut and determined that it would not. At paragraph [58] it said:

The applicant has claimed that he is a supporter of the Future Movement. According to DFAT Future Movement supporters would not be at risk from Hezbollah, the main opponent of the movement, unless they presented a direct threat to Hezbollah's political power in Lebanon. In practice, this is only the case for senior leaders of the movement. The Tribunal finds that if the applicant were to relocate to Beirut and express his views in support of Future Movement at the same level he has in the past, there is no real chance that he will face serious harm by political adversaries or anyone else in Lebanon.

39    It follows that the Tribunal did not fail to consider the appellant’s claims or any integer of his claims. It fully considered whether he would be at risk of harm from Hezbollah in Beirut and it held that he would not.

Disposition of the appeal

40    In light of the above it is apparent that the new grounds of appeal variously raised by the appellant in the written submissions and further in the oral submissions are not sustainable. They have little or no merit. In addition, no explanation has been given as to why these grounds were not advanced before the primary judge. In such circumstances I am bound by the decision of the Full Court in Murad and the appellant ought to be refused leave to rely upon these grounds. No other grounds were advanced in support of the appeal with the result that it must be dismissed.

41    The reliance on the affidavit of Mr Sarkis was necessary for the determination of the appellant’s argument and it is appropriate that leave be given to rely upon it on the appeal.

Conclusion

42    It follows from the above that leave is given to rely upon the affidavit of Mr Sarkis 29 July 2015, the application for leave to amend the notice of appeal is refused, and the appeal is dismissed with costs.

Associate:

Dated:    22 August 2018