FEDERAL COURT OF AUSTRALIA

ECT17 v Minister for Home Affairs [2018] FCA 1711

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse to grant the appellant a Safe Haven Enterprise protection visa: ECT17 v Minister for Immigration and Border Protection [2018] FCCA 730.

Background

2    The appellant is a Lebanese citizen who arrived in Australia at Christmas Island as an unauthorised maritime arrival in July 2013.

3    In July 2016 the appellant was informed that the Minister had exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the appellant to lodge a visa application, and the appellant did so in April 2017.

4    In July 2017 a delegate of the Minister refused to grant the visa, and the matter was then referred to the Authority in accordance with s 473CA of the Act for fast track review.

5    In August 2017 the Authority affirmed the decision not to grant the visa.

6    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision, and in March 2018 the primary judge dismissed the application for review.

7    The appellant now appeals from the judgment of the Federal Circuit Court.

The protection claims

8    The appellant claimed that he was a Sunni Muslim and he feared harm because he refused to join Jabhat al-Nusra (JN), and was approached by or on behalf of JN who told him that they knew he received high marks in military training. The appellant also claimed to fear harm from other extremist groups including Hezbollah because of his involvement in the Future Movement political party (FM). He also claimed to fear harm because of a mental health condition.

The Authority's reasons

9    Because of the manner in which this appeal proceeded (as explained below), there is value in including the summary of findings that was relied upon by the Federal Circuit Court judge (at [13] of the primary judge's reasons). The summary was taken from submissions prepared by the Minister's solicitors and was apparently accepted by the appellant as accurate.

12.    The IAA considered the applicant's claims and evidence and made the following findings and statements:

12.1.    Whilst the IAA accepted the central tenet that JN could have, and could continue to recruit in Lebanon, the country information was to the effect that recruits are volunteers. The IAA found that there was nothing in the applicant's submission or its attached information that indicated that JN was engaging in the forced recruiting of Lebanese citizens, inflicting violence on those that did not join, or was otherwise intimidating or threatening Lebanese Sunnis.

12.2.    In relation to the applicant's fear of harm from JN for refusing to join, the IAA noted that the applicant completed his military training in 2004-2005 and that JN did not exist until 2011. Therefore, given the applicant's low military profile, the IAA did not consider that it was plausible that the applicant would be seen as a significant, important or remarkable potential recruit eight years after his training. The IAA did not accept the claim that JN knew all about the applicant and it was not satisfied that the applicant would be of any adverse interest to JN because he did not join them in 2013. The IAA therefore found that the applicant did not face a real chance of serious harm from JN if he returned to Lebanon.

12.3.    Based on the applicant's interview with the delegate and his post interview submissions, the IAA accepted that the applicant could have had an interest in the FM in Lebanon and that he could have spoken to other people about it. The IAA also noted the country information before it that indicated low-level supporters and ordinary members of the FM faced a low risk of violence. The IAA was not satisfied that the applicant's role with the FM was any more than that of a low-level member and that he did not, and would not, have any particular profile or greater level of involvement if he returned to Lebanon. The IAA found that the applicant's claims of a prominent role with the FM had been embellished in response to the delegate's concerns.

12.4.    The IAA referred to various DFAT country reports which assessed that ordinary Sunnis or other Lebanese were not at risk from sectarian violence in Akkar, that Sunni communities in the border regions faced a low risk of violence and that the potential for Daesh or JN to launch attacks in a Sunni area was unlikely.

12.5.    The IAA stated that, while it was possible that the applicant could get caught up in generalised violence in any area of Lebanon, it found that this was a remote possibility, and in any event, it would not be as a result of the applicant being targeted because of his race, religion, nationality, membership of a particular social group or political opinion. The IAA found that the applicant would not face a real chance of serious harm from any extremist organisations, or from any sectarian or generalised violence, if he returned to Lebanon.

12.6.    In relation to the applicant's claims of suffering mental health problems arising from his voyage from Indonesia to Australia, the IAA stated that the extracts from IHMS did not indicate that the applicant had been undergoing regular mental health care or treatment and did not refer to the applicant's history or identify any particular condition or cause. However, the IAA accepted that the applicant could be suffering a degree of mental anguish. Having regard to the all the evidence and information in the material before it, the IAA was satisfied that the applicant would be able to access ongoing care and treatment in Lebanon if he needed it, and that he did not face a real chance of serious harm as a result of his mental health if he returned to Lebanon.

12.7.    Having regard to the fact that the applicant left Lebanon lawfully as the holder of a valid passport, and having found that the applicant was not of interest to JN and that he was a low level supporter of the FM, the IAA stated that it was satisfied that the applicant did not face a real chance of harm for being a returned asylum seeker.

13.    The IAA concluded that, having regard to all the claims and evidence before it, it was not satisfied the applicant faced a real chance of serious harm because of, or from any combination of, the attempts by JN to recruit him and his refusal to join them, his membership of and activities with the FM in Lebanon and Australia, any other extremist organisations, his mental health and for being a retuned asylum seeker. Therefore the applicant did not meet the requirements in s 36(2)(a) of the Act.

14.    In relation to the complementary protection criterion, the IAA found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia, there was a real risk that the applicant would suffer significant harm. Therefore the applicant did not meet the criteria in s 36(2)(aa) of the Act.

10    It is also useful to include express reference to [19] of the Authority's reasons:

His post-interview submission also claims that while in Australia, he has had a prominent role in the FM. He claims that he has spoken in front of large crowds on a number of occasions between 2014 and 2016, has been the Secretary of the Youth Division, has travelled with high profile leaders of the FM including leaders from Lebanon, and has met with Australian parliamentarians in this capacity. I do not accept that the applicant would not have raised such a significant involvement either during the interview, or in the period after the break. I note that he was asked on a number of occasions if he had further claims to make and he said no. I also take into account that his claim of involvement with the FM only began to develop after the delegate raised concerns about the level of involvement. The applicant has also provided some photographs of himself at various functions that appear to relate to the FM but there is no other information apart from the applicant's claims about the circumstances or the applicant's personal involvement in the events. He has also provided a character reference from the FM that refers to his assistance in organising and participating in community events and activities, but I take into account that this does not refer to him having a position, role or official responsibilities. I also note that the applicant's post-interview submission that he is a person who "is very active with the [FM] and who, in this capacity, has accused Hizbollah of killing Rafiq Hariri during public speeches". He submits that he has made these accusations online, including in social media, but has not provided any evidence of these accusations. I am not satisfied on the evidence before me that he faces any risk of harm from Hizbollah as a result of an active profile or any online activity. Having regard to all of this, I find that the applicant's later claims of a prominent role with the FM have been embellished in response to the delegate's concerns. I am not satisfied that the applicant's role with the FM is any more than that of a low-level member and that he does not, and will not have any particular profile or any greater level of involvement should he return to Lebanon.

Before the Federal Circuit Court

11    The appellant asserted before the Federal Circuit Court that there was jurisdictional error on the part of the Authority (1) by making a legally unreasonable finding of fact in relation to his level of involvement in FM; (2) by failing to take into account the reason why he would refrain from high level involvement in FM upon his return to Lebanon; or (3) by failing to give proper, genuine and realistic consideration to a particular matter, namely that the appellant would have access to mental health services upon his return to Lebanon, and so making a finding that was legally unreasonable.

12    The primary judge rejected each of those grounds. As to the first ground, in summary, the primary judge acknowledged that a decision-maker may fall into error in making a finding of fact that can be described as illogical or irrational, but noted the threshold for illogicality is very high and that in this case the appellant had not established that the Authority reached its conclusion concerning the level of his involvement in FM on an illogical or irrational basis. The reasons (at [10] above) for concluding that the appellant had embellished his role in FM revealed analysis and accordance of appropriate weight.

13    As to the second ground (which relied on Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [82]-[83] (Kenny, Tracey and Griffiths JJ)), the Authority had found that the appellant had only a low-level involvement in FM and would not have any greater involvement on return to Lebanon, and then assessed as a matter of fact the risk of harm on that basis. Therefore, it was not necessary to consider what might happen if a high-level involvement might arise in the future.

14    As to the third ground, the primary judge noted that the Authority had considered country information as to mental health services in Lebanon, and that such information disclosed some gaps, but Lebanon's Health Minister had acknowledged that it was the responsibility of the Ministry of Health to help even those who cannot afford treatment. The country information indicated that whilst there are relatively few psychiatrists in Lebanon, there are a significant number of psychologists and other mental health workers. The primary judge considered that there was no suggestion that harm might come to the appellant by reference to his mental health for any of the essential and significant reasons mentioned in s 5J(1) of the Act (meaning of 'well-founded fear of persecution'). Nor was there material that suggested the appellant's mental health could bring him within the requirements of s 36(2A) of the Act (meaning of 'significant harm'). In short, nothing in the submissions about the appellant's mental health satisfied the criteria for the grant of a protection visa. The Authority found that there was not a real risk of serious or significant harm in Lebanon. The reason for the Authority's conclusion was that the appellant could have access to ongoing mental healthcare if he required it, and the primary judge considered that finding was open on the evidence and supported the Authority's conclusion. The primary judge dismissed the ground, noting that the absence of comprehensive mental health care did not require the conclusion that there was no health care.

The appeal grounds before this Court

15    The single ground of appeal relied upon by the appellant in this Court is:

The Authority made a legally unreasonable finding of fact with respect to the question of whether the [appellant] would be located by the family of his alleged victim in Beirut as there was material before the Authority and otherwise relied upon by the Authority which supported the conclusion that the [appellant] would be so located.

16    The main reason why I have set out the above summary of the primary judge's reasons in some detail is to highlight that the appellant's claim before this Court was not raised before the primary judge.

17    I asked the appellant (who was unrepresented before me) during the hearing to explain the ground of appeal. He was unable to do so, and his submissions were to the effect that such a ground was not pursued by him. He makes no claim in relation to his location by the family of any alleged victim. So much is also clear from his protection visa application and submissions made to the delegate on his behalf, both of which were in the appeal book before me.

18    Accordingly, there is no basis upon which the ground set out in the notice of appeal could succeed.

19    However, it was apparent from his submissions before me that the appellant sought to maintain claims on the appeal that if he is sent back to Lebanon his life will be at risk and he only left because his life was in danger; that since he arrived in Australia he has been an active member of FM; and that he will not have a similar level of mental healthcare if he returns to Lebanon, as compared to that available in Australia.

20    In other words, the appellant sought to agitate complaints about the Authority's findings that had already been addressed and dismissed by the primary judge.

21    The Minister submitted that I should not accept such submissions as an informal application by the appellant to amend his grounds of appeal, particularly as any such grounds would have no merit. The Minister also noted that the appellant was represented before the Federal Circuit Court.

22    I have considered the appellant's submissions in order to assess whether I should grant leave for the appeal grounds to be amended, and have formed the view that no leave should be granted. The grounds of appeal have no real prospect of success. The primary judge carefully considered the Authority's reasons and the matters raised by the appellant before him. The Authority found that the appellant would not face a real chance of serious harm from any extremist organisations, or from any sectarian or generalised violence, if he returned to Lebanon. To the extent the appellant seeks to argue that the Authority made errors of fact about the risks faced by the appellant on return to Lebanon, his level of involvement in FM or the level of healthcare available to him in Lebanon, it was not for the Federal Circuit Court (or this Court) to engage in merits review. The primary judge properly addressed the reasoning process of the Authority in the context of all of the appellant's protection claims, as I have summarised above, and found no jurisdictional error. I agree with the primary judge's assessment and accordingly do not consider that any claim of error on the part of the primary judge has merit.

23    Finally, I note that the appellant sought to rely on new evidence before me. He provided a large bundle of documents, and I invited the Minister to provide supplementary submissions following the hearing and once the documents had been considered, setting out the Minister's position with respect to their admissibility. The Minister did so, opposing their admission.

24    The documents comprise a number of marked bundles.

25    Document B comprises a statutory declaration offering the appellant a home if he is released from detention, a letter and a photograph. The statutory declaration is not relevant to any matter in the appeal and the letter and photograph were in any event in the court book that was before the Federal Circuit Court (Court Book).

26    Document C is a Department of Foreign Affairs and Trade (DFAT) Lebanon travel advice dated 19 January 2018. It post-dates the Authority's decision. It is not open to this Court to accept such evidence in circumstances where it has been provided for the purpose of inviting this Court to disagree with the factual findings of the Authority, and in circumstances where it does not bear on any jurisdictional error: Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27] (Perry J); MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (Nicholson J).

27    Document D also comprises a DFAT country information report of 23 October 2017 and is not admissible for the same reason as Document C.

28    Document F comprises a newspaper article regarding white South African farmers and has no relevance to the appeal.

29    Document G comprises an article relating to the murder of the former Prime Minister of Lebanon, allegedly by members of Hezbollah in February 2005, and has no relevance to the appeal.

30    Document H is a news article dated 10 March 2014 referring to FM as a moderate party that seeks to address terrorism, but was not an article before the Authority and is not admissible on this appeal.

31    Document I comprises various psychological and medical reports that generally post-date the Authority's decision and accordingly have no relevance in this appeal for the same reasons already identified at [26] above. Some of the reports in fact do not relate to the appellant but to his family members. One of the reports of the International Health and Medical Services (IHMS) pre-dates the Authority's decision (it is dated 13 October 2016). It appears that in a post-interview submission the appellant's agent stated that IHMS had released his medical notes and the submission in fact quotes from the notes, although the notes were not attached They are referred to in the Authority's reasons (at [26]-[27]). The appellant did not seek to have the IHMS record as a whole tendered as evidence before the Authority. There is no explanation provided as to why the document was not previously tendered as a whole and there is no basis upon which the report should now be admitted into evidence. I have in any event reviewed the bundle of records and note that in general they recommend psychological counselling. The appellant has seen a psychologist from time to time and on occasion has seen a psychiatrist while he has been in Australia. He has at times been on medication. However, the records do not suggest a medical or mental health condition that would not be open to treatment by the available mental health services referred to in the detailed assessment of country information undertaken by the Authority.

32    Document J comprises a bundle of seven photographs, six of which were already in the Court Book. The seventh is a photograph of the appellant that was not before the Authority and has no relevance to this appeal.

33    The same applies to another bundle of approximately 30 photographs, only three of which it seems were before the Authority. Some of the photographs appear to be of the appellant attending functions described as 'FM events'. It would seem the appellant seeks to rely on them to contradict the findings of the Authority with respect to his level of involvement with FM. They cannot be accepted into evidence for the same reasons referred to at [26] above. In any event, the photos of themselves are not probative of the level of his involvement or profile in FM.

34    The final group of documents comprises statutory declarations, two letters and one email all going to the character of the appellant. They can be described generally as character references. They are not relevant to the issues in this appeal.

35    In conclusion, I have considered the bundle of documents and the Minister's submissions with respect to their admissibility, and I consider they are inadmissible on this appeal.

36    I also note that during the hearing before me the appellant raised questions about the status of his bridging visa. He referred to various documents he had brought with him to court but his questions were addressed separately by subsequent correspondence from the Minister's solicitors (copied to the appellant) and the questions are not relevant to this appeal.

Determination

37    In the circumstances, the appeal must be dismissed.

Associate:    

Dated:    9 November 2018