FEDERAL COURT OF AUSTRALIA SZTYU v Minister for Immigration and Border Protection [2015] FCA 1302 Citation: SZTYU v Minister for Immigration and Border Protection [2015] FCA 1302 Appeal from: SZTYU v Minister for Immigration & Anor [2015] FCCA 1669 Parties: SZTYU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 806 of 2015 Judge: PERRAM J Date of judgment: 25 November 2015 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court – whether jurisdictional error demonstrated Legislation: Migration Act 1958 (Cth) s 36(2)(aa) Date of hearing: 13 November 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 38 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Mr M Wiese of Clayton Utz Counsel for the Second Respondent: The second respondent filed a submitting appearance IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 806 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTYU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PERRAM J DATE OF ORDER: 25 NOVEMBER 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs as taxed or agreed. 3. The second respondent's name be changed to the 'Administrative Appeals Tribunal'. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 806 of 2015 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: SZTYU Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PERRAM J DATE: 25 NOVEMBER 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal form the Federal Circuit Court which on 19 June 2015 dismissed the appellant's claim for judicial review of a decision made by the former Refugee Review Tribunal ('the Tribunal') on 10 February 2014: see SZTYU v Minister for Immigration & Anor [2015] FCCA 1669. Facts 2 The appellant is a national of Lebanon, having been born there in the early 1980s. He worked in Tripoli as a butcher. Since 2004 he has visited Australia on a number of occasions usually on a sponsored family visitor visa. One such visa was granted to him on 14 November 2012. He travelled to, and entered, the Commonwealth on that visa on 2 December 2012. On 28 December 2012 he applied for a protection visa and was granted a bridging visa pending the final resolution of that application. 3 The essence of the appellant's claim for protection was that he had close friendships with some Alawites in Tripoli. The Alawites are a branch of Shia Islam based in Syria but also present in Lebanon. They have come to increased notice in the West more recently because the Syrian government of President Bashar al-Assad is closely related to, or aligned with, the Alawite minority in Syria. This has bought the Assad government into conflict with various Sunni elements. 4 The Minister's delegate concluded that 80% of the population of Tripoli were Sunni, while about 7.5% were Alawite. The appellant's contention was that as a result of his friendships with two of his Alawite customers at the butcher's shop it was being imputed to him that he was a supporter of Bashar al-Assad. This imputation had resulted, according to the appellant, in his abduction on 16 November 2012. He claimed that he had been abducted by an unknown Salifist militia from a shopping district in Tripoli (the Salafists are an ultra-conservative orthodox movement within Sunni Islam). He was then subjected to an interrogation, during which he was accused of supplying arms to the Alawites. This suggestion appears to have had its genesis in various car trips the appellant claimed to have made into a suburb with a predominantly Alawite population. It should be underscored here that the appellant's contention is that, as a Sunni, he was being attacked by more extreme Sunnis on the assumption that he was associating with Shia Alawites. 5 The delegate did not believe the appellant about critical aspects of these matters. I will return to those in a moment. For now it will suffice to observe that it did accept certain other aspects of the claim. For example, the delegate did accept that: there were long-standing enmities between the Sunni and Alawite populations in Tripoli that gave rise to intermittent sectarian violence; the Syrian conflict had worsened that state of affairs; and Lebanon was a conduit for weapons smuggling into Syria. 6 As already noted, before the delegate the appellant claimed that he had close friendships with two Alawite customers at the butcher's shop at which he worked. It was his case that he was abducted on 16 November 2012 by the Salafists and interrogated as a result of: his friendship with the two Alawite customers (because it suggested he supported Bashar al-Assad); and/or his frequent car trips into an Alawite suburb of Tripoli (because it suggested he was supplying arms to the Alawites). 7 The delegate found that the appellant's claim in relation to the friendship with the two Alawite customers was either fabricated or exaggerated. It did not accept that he could have been targeted by the Salafists simply because of that friendship. Nor did the delegate accept that he repeatedly visited an Alawite suburb with the consequence that he came under a suspicion in the Salafists' minds that he was smuggling weapons to the Alawites. This was largely because of the difficulties that the delegate believed there existed in moving around Tripoli as a result of the widespread setting up of military checkpoints across the city. 8 For those reasons, the delegate did not accept that the appellant was being persecuted because he was thought to be an al-Assad sympathiser. It dismissed his claims in his written statement in support of his application that he could supply medical evidence of a concussion to his head obtained shortly after the alleged abduction as inconsistent with his evidence during his departmental interview that he had not visited a doctor in the abduction's aftermath. Consequently the delegate declined his application for a protection visa. 9 On 15 August 2013 the appellant applied for a review of that decision before the Tribunal which conducted a hearing on 8 January 2014. At this hearing evidence was given by the appellant and also two of his brothers. Following the hearing the Tribunal was troubled by what it saw as a number of inconsistencies in the appellant's and his brothers' accounts. It wrote to the appellant raising these concerns and asking for further submissions. On 3 February 2014, the appellant wrote to the Tribunal responding to its queries. 10 On 10 February 2014, the Tribunal affirmed the delegate's decision. The Tribunal closely examined the appellant's account of his abduction and found it to be inconsistent in a number of respects. It also thought his version of his medical treatment in the aftermath of the abduction was inconsistent. 11 As to the evidence given by the appellant's brothers (who at all relevant times have lived in Australia), the Tribunal noted that both gave conflicting accounts of when it was that the appellant first told them he had been abducted. The Tribunal also thought that the appellant's account of how he travelled to the airport in Lebanon conflicted with what one of his brothers claimed the appellant had told him. 12 Before the Tribunal the appellant also gave evidence that prior to his abduction he had received threats from the Salifists. The Tribunal noted that this claim had not been made to the delegate and regarded this as a further inconsistency in his account. 13 Finally, whilst the Tribunal accepted that there were sectarian problems in Tripoli between the Sunnis and the Alawites, it also noted that there was some co-operation between them and that it was unlikely that a Sunni would be targeted merely for being friends with an Alawite. At the Tribunal hearing the appellant sought to buttress his evidence about his friendship with the two Alawites by giving an account of a hunting trip with them. The Tribunal, however, regarded this as a further inconsistency between the ways in which the case had been conducted before the delegate and the Tribunal. 14 In the end, the Tribunal did not believe the appellant's account of his abduction. It affirmed the delegate's decision to refuse the visa. 15 The appellant commenced judicial review proceedings in the Federal Circuit Court on 5 March 2014 and the application was heard on 24 September 2014. Three grounds of review were pursued before that Court in writing: '1. The Refugee Review Tribunal Member (the Tribunal) wrongly relied on inconsistencies in evidence given by my two Australian siblings. 2. The Tribunal attacked my credibility and ignored the supplementary evidence provided. 3. The Tribunal misunderstood my abduction and the allegation that I support Alawite.' 16 The learned primary judge considered each of these grounds and rejected them. As to the first, the Court pointed out that the Tribunal did more than merely asserting the inconsistencies but had set them out in some detail. As to the second ground, the Court disagreed that the supplementary evidence, which it identified as the letter sent by the appellant to the Tribunal on 3 February 2014 referred to above, was not considered by the Tribunal. As to the third ground, the Court observed that the appellant did not articulate what this meant. 17 The learned primary judge also dealt with a number of oral arguments which were advanced at the hearing and rejected each. The first argument was that the appellant had not felt comfortable in the interview before the delegate. Presumably this was directed to explaining why some aspects of the appellant's evidence (such as the fact of his having gone hunting with the Alawite friends) did not emerge before the delegate. No doubt this was to rebut the suggestion of inconsistency. The primary judge thought that there was no material which would have suggested to the Tribunal that this difficulty existed. I would add that if there were it would have been natural to raise it in the letter of 3 February 2014. 18 The second argument related to apparent errors in the appellant's visa application form. The appellant sought to argue that these might be discounted as he had been assisted in the completion of his application by a friend. The primary judge rejected this argument, observing that the appellant had told the Tribunal he was not aware of any errors in the application. 19 The third argument was that the appellant's wife, who is Australian, was pregnant and it would be dangerous for her to live in Lebanon. The primary judge rejected this, noting that no such argument had been advanced in the Tribunal. 20 Finally, the appellant submitted that his evidence to the Tribunal had been true and should have been accepted. The primary judge rejected this on the basis that mere disagreement with the Tribunal's decision could not form the basis for a finding of jurisdictional error on the part of the Tribunal. 21 Having rejected each of the appellant's arguments, the primary judge dismissed the claim for judicial review with costs. 22 Within the time prescribed by the rules the appellant file a notice of appeal in this Court. That notice of appeal asserts that the Court below erred in two ways: '1. His Honour failed to make a finding that the Refugee Review Tribunal wrongly failed to consider what will happen to me if I return to Lebanon. 2. The Tribunal had evidence as to what happened to me yet denied me protection visa based on inconsistencies in evidence and such is a denial of natural justice and fairness because the Tribunal and His Honour overlooked my subjective fear of persecution and harm with my Australian wife.' 23 It is useful to deal with these in turn. Ground One 24 In the Court below the appellant did not advance an argument that the Tribunal had failed to consider what would happen to him if he was returned to Lebanon. It was not one of his three written grounds nor does it appear to have been amongst the oral arguments he advanced. Ordinarily, this would mean that the appellant would require a grant of leave before he could raise the point. I would not be disposed to grant leave unless the point had some merit. In this case, it is clear that the Tribunal did consider whether he would be harmed because of a Convention reason: '32. The Tribunal is willing to accept that as a butcher the applicant had Alawite customers who he was friendly with. However, the Tribunal is not satisfied that he was abducted as a result of those friendships, that he was threatened or attacked as a result of this, that he has been accused or providing arms to Alawites or that he fled to Australia because of any fear of harm from Salafists. The country information does not suggest that he would be targeted if he returned to Lebanon because he is friends with Alawites. The Tribunal is not satisfied that there is a real chance that applicant would be harmed for this or any other Convention reason if he was to return to Lebanon now or in the reasonably foreseeable future.' 25 This is certainly a sufficient consideration of the issue from the perspective of the Refugee Convention, particularly having regard to the Tribunal's detailed exposition of why it had not accepted that he had been abducted by the Salafists. 26 It is not as clear that the corresponding question which arises in relation to complementary protection was adequately addressed. The Minister must grant a protection visa to an applicant if, inter alia, satisfied in the language of s 36(2)(aa) of the Migration Act 1958 (Cth) ('the Act') that the applicant is: 'a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has 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…' 27 The focus of this provision is on harm to an applicant per se and not harm for a particular reason (in contrast with the position under the Refugee Convention). The Tribunal dealt with this issue at [34]: '34. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons set out above, the Tribunal is not satisfied that there is a real chance that the applicant would be harmed as a result of his friendship with Alawites if he was to return to Lebanon. In MIAC v SZQRB, The [sic] Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention definition. Therefore, for the reasons discussed above the Tribunal is not satisfied that there is a real risk that the applicant will be harmed in Lebanon for his friendship with Alawites. The applicant has not claimed that he would be harmed for any other reason. Therefore the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).' (emphasis added and references omitted) 28 One reading of the emphasised portion in [34] is that the Tribunal thought that the s 36(2)(aa) risk of harm had to be associated with a motive, purpose or rationale. Thus, the first emphasised portion suggests that the Tribunal was considering harm caused by, or related to, his friendship with the Alawites. The second might be read as assessing whether there were any other reasons for him being harmed. 29 On balance, I do not think this is a problem. In assessing under s 36(2)(aa) whether there is a sufficient risk of harm it is apparent that the Tribunal must, if only as a matter of practicality, ask itself the question of why the posited harm might occur. It might have been possible for the applicant, at least theoretically, to argue that living in Tripoli gave rise to the requisite risk. However, that case was not advanced and, in any event, there was no material before the Tribunal that the risk of living in Tripoli rose to the serious level required by s 36(2)(aa) of the Act. 30 I would permit this argument to be advanced by leave but would dismiss it. Ground Two 31 The argument here is twofold. First, that the Tribunal denied the appellant procedural fairness. Secondly, the primary judge overlooked his subjective fear of harm and his fears for his wife. 32 There was no denial of procedural fairness. Assuming in the appellant's favour that this corresponds to ground one in the Court below, it is apparent both that the Tribunal discharged its procedural fairness obligations by putting the inconsistencies to the appellant in its letter of 9 January 2014 and also that the applicant had the opportunity to respond and did so in his letter of 3 February 2014. 33 As to the second point, both the primary judge and the Tribunal were aware of the appellant's concerns as to what would happen if he were returned. The difficulty is that the Tribunal did not accept that those concerns were truthful and no error in respect of that conclusion was demonstrated in the Court below. Insofar as the claim relates to the appellant's wife, this cannot succeed when that case was never advanced before the Tribunal, as the primary judge held. Oral Arguments 34 At the hearing of the appeal the appellant advanced two other arguments: (a) he had written to the Tribunal on 3 February 2014 but it had not taken the contents of his letter into account; and (b) it had not taken into account the sectarian violence in Lebanon between the Sunni and Shia elements. 35 I do not think that either of these should succeed. As to (a), it is clear that the Tribunal did take into account the appellant's letter of 3 February 2014. It was explicitly discussed at paragraphs [17], [18], [20], [21] and [22]. As to (b), it is also clear that the Tribunal dealt with this at [24]-[27]. The Tribunal addressed itself to the hostility which existed between Sunni and Alawites in the relevant suburbs of Tripoli at [24] in these terms: 'The Alawite community is generally viewed as pro-Syrian, and the Bab al-Tabbaneh Sunni community is generally viewed as anti-Syrian. The Tribunal accepts that political and sectarian tensions are high in the area and the sporadic outbreaks of fighting result in people from both sides being killed and injured. However there are also reports of co-operation between residents of the two districts and of efforts to increase interaction between the two communities.' (references omitted) 36 It then set out a number of examples of this bonhomie. Using extracts from a Tripoli newspaper, The Daily Star, published in 2013 it found three articles to the following effect: residents in the suburbs often work together, send their children to the same schools and sometimes 'intermarry'; at a hip-hop festival there had been Alawite rappers and Sunni break-dancers; and people from the two suburbs had been involved in a peace march. 37 I am not sure I would take the same degree of comfort from this material that the Tribunal did but on factual matters such as this my views are irrelevant. In that circumstance, I am not prepared to say that the Tribunal's reasoning was in the requisite sense irrational. In any event, the material certainly shows, contrary to the appellant's oral submission, that the issue of sectarian strife was considered. 38 The appeal will be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 25 November 2015