AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Federal Magistrates Court of Australia
You are here:  AustLII >> Databases >> Federal Magistrates Court of Australia >> 2009 >> [2009] FMCA 113

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

SZHGN v Minister for Immigration & Anor [2009] FMCA 113 (20 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHGN v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal applied the wrong test – whether apprehended bias.


Horvath v Secretary of State for the Home Department [1999] EWCA Civ 3026; [2000] INLR 15
Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] 1 AC 489
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALD 347
SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 150 FCR 448
SZEOQ v Minister for Immigration and Citizenship [2008] FCA 257
SZIEW v Minister for Immigration and Citizenship and Another (2008) 101 ALD 295
WAKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 32

Applicant:
SZHGN

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG 1323 of 2008

Judgment of:
Barnes FM

Hearing date:
11 November 2008

Delivered at:
Sydney

Delivered on:
20 February 2009

REPRESENTATION

Solicitors for the Applicant:
Turner Coulson Immigration Lawyers

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) That the application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1323 of 2008

SZHGN

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Refugee Review Tribunal signed on 7 March 2008 and handed down on 18 March 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
  2. The applicant, a citizen of Lebanon, arrived in Australia in October 2004 on a visitor visa. In February 2005 he lodged an application for a protection visa. The applicant claimed to have a well-founded fear of persecution for reasons of his religion and membership of a particular social group. He claimed to be a Maronite Christian who feared harm as a consequence of his relationship with a Muslim girl (Ms H). The applicant claimed to have left Lebanon because of “continuous threats” to his life from the Syrian militia in Lebanon. The applicant claimed that after his relationship with Ms H was exposed, her family had utilised its connection with Syrian intelligence operatives who had searched his parents’ house in Tripoli seeking him, had threatened to kill him and had threatened Ms H. He claimed that the Lebanese authorities had been notified, but that they had no control over the Syrians and were unable to protect him.
  3. The application was refused and the applicant sought review by the Tribunal. The Tribunal as originally constituted (T1) affirmed the delegate’s decision by decision handed down on 6 September 2005. The applicant did not attend a hearing before T1.
  4. On 16 August 2006 this Court made consent orders setting aside the decision of T1. The matter was remitted to the Tribunal for reconsideration. A differently constituted Tribunal (T2) conducted a hearing (the first Tribunal hearing) which the applicant attended. The applicant submitted to T2 letters of support from his parents, Ms H and a lawyer in the office of a Lebanese deputy, as well as independent country information in relation to the situation in Lebanon. T2 affirmed the delegate’s decision by decision handed down on 11 January 2007. On 25 October 2007 this Court, by consent, set aside the T2 decision and remitted the matter for reconsideration. It is that reconsideration that is the subject of these proceedings.
  5. The applicant appeared at a (second) hearing before the Tribunal as reconstituted (hereafter referred to as the Tribunal), on 30 January 2008. The Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) putting certain information to him for comment, including apparent inconsistencies in the evidence before it. His representative responded to this letter.

Tribunal decision

  1. The Tribunal set out at some length the applicant’s claims as made in his protection visa application and at the hearings, including his evidence that he had lived and worked in Beirut since 1993 and that he went to Tripoli (where Ms H lived) on weekends to visit his family. In its findings and reasons the Tribunal found that the applicant did not impress it as a credible witness. This impression was said to be based on “the inconsistencies in some key aspects the (sic) applicant’s evidence at various stages in the application process”.
  2. The Tribunal referred to the fact that the applicant’s account at the first Tribunal hearing of the date of inception of the relationship with Ms H, its duration, exposure and resulting problems, differed significantly from the account he provided at the second hearing. It set out at length his evidence at each of the hearings. In its findings and reasons it observed that while the applicant had suggested at the second hearing that the relationship started in February 2004 and was exposed in June 2004, at the first hearing he had “seemed adamant” that the relationship started in 2003 and that February 2004 was “the beginning of his problems”. The Tribunal found that the applicant had not provided a satisfactory explanation when it sought his comments on these inconsistencies which “cast doubt” on his credibility.
  3. The Tribunal also took into account the fact that the applicant’s oral account of the “nature of his commitment” to his former girlfriend differed markedly from her written claims provided in support of the application. At the second hearing the applicant had stated that he had not been “sure” about marrying Ms H, that their one or two conversations on the subject had been limited to eliciting each other’s respective opinions about marriage and that the matter was kept between the two of them. He claimed that the relationship was discovered after someone saw them together and reported it to Ms H’s family. The Tribunal found that this account was inconsistent with Ms H’s claims in her written statement to the effect that she and the applicant had met in 2003, that she intended to marry him and that “when she told her parents about the marriage she was threatened”. The Tribunal observed that Ms H claimed that the couple’s intention to marry each other was serious enough for her to convey it to her parents, regardless of the consequences. It also found that Ms H’s claim that under the circumstances the applicant had to leave the “region and [move] to Beirut” (from Tripoli) was not supported by the applicant’s evidence.
  4. The applicant’s adviser provided an explanation for the perceived inconsistencies between the applicant’s claims and those of Ms H in response to the Tribunal’s s.424A letter, to the effect that it was not uncommon in relationships for one party to have a different view of the timing of relationship events and to form an intention to marry at a different time and that it would be unusual if each party decided to marry at precisely the same time. The Tribunal found that this response did not satisfactorily address what it described as the “significant inconsistencies” between the applicant’s evidence and Ms H’s claims in her statement and the resulting credibility issues.
  5. The Tribunal found that these inconsistencies “cast doubt on the credibility of the applicant” and also “cast serious doubt on the credibility of [Ms H’s] statement about the relationship and its consequences”. On the basis of these inconsistencies the Tribunal did not accept that Ms H’s statement was a “reliable or a truthful account of the relationship and its consequences”.
  6. The Tribunal continued:
  7. The applicant claimed at the second hearing that he never slept in the same place in Beirut. The Tribunal did not accept this claim, finding that it contradicted his evidence at the first hearing that he had to stay home and did not dare go out at night. It referred to the fact that when it asked the applicant why he had not previously mentioned that he did not sleep at home, he merely acknowledged that he had not raised this claim earlier. He claimed that he “did not know everything” at that time and that he did not become aware of the fact that there had been further visits to his parents’ house and to the school at which he worked in Beirut until he contacted his family after the first Tribunal hearing.
  8. The Tribunal found that the applicant had not provided a “meaningful and satisfactory answer” as to why he had not disclosed this new information through his adviser after the first hearing. It was of the view that the “applicant’s belated claims at the second hearing have been designed to enhance his case for a protection visa”. It did not accept that he slept at different places between June/July 2007 and September 2007, that his home or place or work in Beirut was visited without his knowledge or that his parents had any further encounters with Syrian operatives following their move to Beirut from Tripoli.
  9. Moreover the Tribunal found that, regardless of the steps the applicant claimed to have taken to protect himself in Beirut in case of danger, his evidence “did not detract from the fact that he never came face to face with the Syrians or, indeed, members of [Ms H’s] family”. The Tribunal was satisfied that those the applicant claimed to fear “did not seriously pursue, or intend to pursue, him through the entire time he was in Beirut”. It also had regard to the fact that (as it had put to the applicant at the second hearing), Syria had withdrawn from Lebanon and was no longer in control of the country. In those circumstances the Tribunal found it difficult to see why the applicant would come face to face with intelligence operatives acting on behalf of Ms H’s family in the near future.
  10. The Tribunal also considered claims by the applicant that threats had been levelled against him via his parents, including by telephone, following his departure from Lebanon. However it found that if those directing the threats against the applicant had wanted to seriously harm him they had had “ample opportunity” to do so whilst he was still in Lebanon. It found that the applicant’s evidence suggested that Ms H’s family and those he claimed had been instructed on their behalf “were interested in the relationship being terminated beyond any chance of reconciliation” and that the threats were “designed to merely intimidate and scare the applicant and his family”.
  11. In addition, the Tribunal considered it reasonable to assume that if the anger felt by Ms H’s family at the relationship was to translate into violence it would have been directed at her in the first instance. It observed that it appeared that despite the threats the applicant claimed had been directed against Ms H, apart from being grounded and forbidden to go to work for a short time and having her telephone confiscated, Ms H had not suffered any other harm at the hands of her family or anyone else. The Tribunal continued:
  12. The Tribunal referred to the fact that it had already rejected the applicant’s claim that, unbeknownst to him at the time of the first hearing, members of his family had received visits in Beirut from those he feared. It found no evidence before it to suggest that members of the applicant’s family had suffered any other harm. The Tribunal was satisfied on the evidence before it that “threats levelled against against (sic) the applicant were designed to intimidate and scare him and his family” and that those making the threats “did not seriously intend to act upon them”. It found that the threats did not amount to serious harm and did not give rise to any real chance of persecution for a Convention reason in the reasonably foreseeable future.
  13. The Tribunal continued:
  14. The applicant’s evidence was said to suggest that he had lived and worked in Beirut from 1993 to 2004, had bought a house there and that he only travelled to Tripoli (whether Ms H lived) to visit his parents. It also found that his parents now lived in Beirut with six of his siblings. The Tribunal was satisfied on this evidence that if the applicant were to return to Lebanon he would live in Beirut. It stated:
  15. The Tribunal concluded on the evidence before it that the applicant’s chances of facing serious harm for a Convention reason in Lebanon were remote. It was not satisfied that he had a well-founded fear of persecution for a Convention reason. It affirmed the delegate’s decision.
  16. The applicant sought review by application filed in this Court on 23 May 2008. He relies on an amended application filed with the leave of the Court on 11 November 2008. There are two grounds in the amended application: first that the Tribunal applied the wrong test and second that the Tribunal decision was vitiated by apprehended bias.

The wrong test

  1. The first ground in the amended application is that the Tribunal applied the wrong test. The particulars to this ground are as follows:
  2. The applicant contended that the Tribunal failed to appreciate that when determining what constituted a well-founded fear of persecution it needed to consider not only whether there was past harm but also whether those actions of the Syrians which it accepted had occurred were sufficient to create a well-founded fear of persecution in the future. It was said that the Tribunal had failed to ask this question and hence had applied the wrong test. The Tribunal was said to have failed in its application of the test in s.91R(2) of the Migration Act as to what constituted serious harm. It was pointed out that s.91R(1) of the Act links the requirement of serious harm to the Refugees’ Convention definition and that the requirement was not expressed in terms of actual harm, but rather a well-founded fear of persecution. It was contended that insofar as the Tribunal found that because the applicant, his parents and former girlfriend had not suffered any actual harm they therefore had no well-founded fear of persecution, this was not a proper application of s.91R and that the Tribunal must ask whether there was a well-founded fear of persecution in the future having regard not only to what had happened in the past but also to the future. It was contended that it was not enough to say that because there had been no harm suffered in the past there was no well-founded fear of persecution in the future.
  3. The applicant also submitted that while the Tribunal had regard to the hypothetical situation in Lebanon established by country information (for example in relation to what the government was doing and the position of the Syrians), it had failed to look at the “actual situation” confronting this particular applicant. This was said to be contrary to the approach taken by Madgwick J in SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] FCA 3; (2006) 150 FCR 448 at [35]:
  4. After referring to what the majority stated in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [26] in relation to the obligation of the State to take “reasonable measures” to protect the lives and safety of its citizens (where harm had been inflicted by non-State actors for Convention reasons), Madgwick J went on to say that in the case before him, although the serious harm done to the appellant by a non-State agent was not itself inflicted for a Convention reason, the appellant might nevertheless be a refugee “if, for Convention reasons ... the State failed, to provide a "reasonably effective and impartial police force" (cf, S152 at [26]) at a grass-roots level. That is, the State's weakness or incompetence, whatever its leaders' good intention, in having its norms carried out, might have permitted the local police to engage in Convention persecution themselves, by failure (for Convention reasons) to prevent and act against those who would cause the appellant serious harm.” (SZAIX at [37]).
  5. Madgwick J also found in SZAIX (at [48]) that the appellant’s claims and submissions “mandated an inquiry into the prospect that she might be denied reasonable protection from the police charged with responsibilities in the area where she lived.” His Honour referred to the fact that material put before the Tribunal by the appellant in that case supported the proposition that the police at a local level would treat the appellant (an ethnic Chinese woman in Indonesia) less favourably than indigenous Indonesians and continued (at [48]): “The extent to which actual and practical, as distinct from legal, discrimination might operate against Chinese people, including women complaining of rape, appears to have provoked little, if any information at all as a result of the Tribunal's inquiries. It appears not to have been, as it should have been, an actual focus of those inquiries.”
  6. It was contended that in this instance the applicant had put his case on the basis that he was a Christian who had a relationship with a Muslim woman; that the girl’s parents had become aware of this and opposed the relationship; and that the parents were affiliated with Syrian forces and had used that affiliation to intimidate the applicant as a result of which he had a well-founded fear of persecution. However the applicant submitted that contrary to the approach of Madgwick J in SZAIX, the Tribunal had simply considered country information to dismiss the applicant’s claims.
  7. In finding that there was no persuasive evidence before it to support a finding there was a real chance the applicant would be denied protection by the Lebanese authorities from the harm he feared from the Syrians the Tribunal had regard to information that the Syrians had now withdrawn from Lebanon and that the army had taken over security and had been praised for its ability to operate professionally without sectarian bias. The applicant contended that the Tribunal’s findings about the Syrians having withdrawn from Lebanon did not mean that the particular individuals the applicant said had threatened to harm him did not remain in Lebanon. The Tribunal had not made any enquiry on this matter, but had simply referred to the official position. Thus it was submitted that, contrary to what was said in SZAIX at [48], there had been no actual focus on that issue by the Tribunal.
  8. It was pointed out that the Tribunal had evidence of what the Syrians were said to have done to engender the relevant fear from the applicant at two hearings and in the three letters of support from Ms H, a lawyer (who was a member of staff of a member of the Lebanese government) and the applicant’s parents, which referred to persecution of the applicant and his parents by the Syrian secret service. The Tribunal was said to have dismissed this evidence, in particular the applicant’s sworn evidence at the Tribunal hearings as to what particular Syrians had done to him, on the basis of the general information referred to above. It was submitted that to dismiss this specific evidence, in part because it was not supported by country information, was to commit the type of jurisdictional error identified in SZAIX. The Tribunal was said to have dismissed sworn first-hand and independent evidence of actual events and circumstances on the basis of marginally relevant country information and in doing so to have applied the wrong test.
  9. The applicant also submitted that the Tribunal erred in relying on information suggesting that victims of honour crimes in Lebanon were always women and that the killers were always men in rejecting his claims. It was contended that this information was only general in nature and was not directly related to the claims made by the applicant, who had not claimed to be a victim of an honour crime. Notwithstanding this, the Tribunal was said to have characterised the applicant’s claim as a claim about an honour crime and, by having regard to information in relation to honour crimes (and the fact that victims of honour crimes were always women and the killers always men), concluded that the applicant’s claims did not agree with the general information and hence would not be accepted. This was also said to constitute an error of the sort considered in SZAIX. It was submitted that the Tribunal was required to consider what was actually happening “on the ground”, rather than to dismiss such claims because there was some official action or edict.
  10. A number of issues are raised by these contentions. I note that, as was pointed out for the first respondent, insofar as the first particular to this ground refers to whether the applicant, his family and former girlfriend (“they”) had a well-founded fear of persecution, the Tribunal was only obliged in accordance with s.36 of the Migration Act 1958 (Cth) and Art.1A(2) of the Refugees Convention to determine whether the applicant had a well-founded fear of persecution. It was not obliged to consider whether the applicant’s family and former girlfriend (who were not included in the protection visa application), had such a well-founded fear of persecution, except insofar as this was relevant to the applicant’s claims to have a well-founded fear of persecution himself.
  11. Further, as Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ stated in Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 (at 575):
  12. It has not been established that the Tribunal considered only whether the applicant (and his family and former girlfriend) had suffered past harm and failed to consider whether he had a well-founded fear of persecution and in that way applied the wrong test. In this case, as an integral part of determining whether the applicant had a well-founded fear of persecution in the future, the Tribunal formed conclusions about whether past events had occurred.
  13. While the Tribunal did not accept Ms H’s statement to be a “reliable or truthful account of the relationship and its consequences”, it nonetheless accepted that the applicant, a Maronite Christian, was “at some point in a short term sexual relationship with [Ms H], a Muslim ...that the relationship was eventually exposed and [Ms H] disclosed the nature of the relationship to her strictly Muslim parents provoking their ire”. The Tribunal accepted some aspects of the applicant’s claims about past threats to him, as well as his evidence that he was never directly threatened and never came face to face with the Syrians in Beirut. It was in light of his evidence about the power of the Syrians in Lebanon at that time that the Tribunal was satisfied that those he feared did not seriously pursue or intend to pursue him during the time he was in Beirut. It found that if those directing threats against the applicant wanted to seriously harm him, they had had “ample opportunity” to do so while he was in Lebanon. The Tribunal also had regard to the fact that Syria had subsequently withdrawn from Lebanon and was no longer in control of the country in finding it “difficult to see why the applicant would come face to face with intelligence operatives acting on behalf of [Ms H’s] family in the near future.”
  14. The Tribunal also correctly considered as relevant to the applicant’s claims the fact that apart from being “treated disrespectfully” his parents had not been subjected to any serious harm (and nor had other members of his family) and that Ms H had not suffered any serious harm. This was said to cast significant doubt on the seriousness of anyone’s intention to harm the applicant.
  15. Thus, on the basis of the specific evidence before it about the applicant’s claims, past events, as well as country information, it was open to the Tribunal to be satisfied that the threats that had been levelled against the applicant “were designed to intimidate and scare him and his family”, that those making the threats “did not seriously intend to act upon them”. It addressed both the past and the future in finding that the threats did not amount to serious harm and did not give rise to any real chance of persecution for a Convention reason in the reasonably foreseeable future.
  16. Notably, in making findings about the future the Tribunal was satisfied that the applicant would live in Beirut (where he had lived and worked before coming to Australia and where his family now lived) if he returned to Lebanon. It also had regard to the absence of information to suggest that Lebanese couples involved in inter-faith relationships were at risk of any harm and the fact that the relationship between the applicant and Ms H had ceased some four years earlier. The Tribunal did not simply look at whether the applicant, his family and former girlfriend had suffered actual harm in the past. It addressed whether the applicant had a well-founded fear of persecution on the basis of all the evidence before it, concluding that if he were to return to live in Lebanon his chances of facing serious harm by members of his former girlfriend’s family and/or Syrian intelligence operatives in the reasonably foreseeable future were remote.
  17. Such reasoning does not reveal a failure to understand or apply the test in s.91R of what constitutes serious harm. The Tribunal made explicit findings in this respect: that the past threats did not constitute serious harm; and that the applicant’s chances of facing serious harm by members of his former girlfriend’s family and/or Syrian intelligence operatives in the reasonably foreseeable future were remote. It was, in any event, also satisfied that adequate and effective protection was available to the applicant in Lebanon and would not be withheld from him for a Convention reason.
  18. The Tribunal also addressed the future in considering state protection. It found that there was no persuasive evidence to support a finding that there was a real chance that the applicant could be denied protection by the Lebanese authorities from the harm he feared at the hands of his former girlfriend’s family or anyone else for a Convention reason. The Tribunal had regard not only to the applicant’s evidence that he had not sought protection from security forces or the police (but only from his MP who was unable to help) because the Syrians were “everywhere”, but also to information as to changed circumstances in Lebanon (in particular the withdrawal of the Syrians and information about the Lebanese army’s ability to operate professionally and “without sectarian bias”). It was satisfied not only that “adequate and effective protection is available to the applicant in Lebanon”, but also that it would not be withheld from him for a Convention reason.
  19. The applicant’s submission that the Tribunal erred in failing to ask whether the actions which it accepted of the Syrians were sufficient to create a well-founded fear of persecution in the future is not made out. The Tribunal considered such threats but found that they were designed to intimidate the applicant, were not intended to be acted on, did not amount to serious harm and did not give rise to a real chance of persecution for a Convention reason in the reasonably foreseeable future. The issue of whether or not the applicant’s claims gave rise to a well-founded fear of persecution involving serious harm was clearly at the forefront of the Tribunal’s consideration of his application. On a fair reading of the Tribunal decision it is clear that it gave close consideration to the actual situation confronting the applicant (contrary to the applicant’s submission) and was not simply satisfied that the applicant’s past experiences in Lebanon did not amount to serious harm. It gave reasons for its findings.
  20. Further, as the first respondent submitted, the applicant has not demonstrated error of the kind identified in SZAIX. SZAIX dealt with the particular question of the adequacy of state protection. It was in that context that Madgwick J suggested that if there was a real question as to what protection was in fact available, then the Tribunal may have to go beyond generalised independent country information. In contrast, in this case the Tribunal made a series of factual findings leading to a conclusion that the applicant did not have a well-founded fear of persecution. In so doing it had regard to all the evidence before it, not simply the hypothetical situation established by country information. It then made a separate finding that it was satisfied that state protection would not be withheld for a Convention reason in light of recent developments in Lebanon, such as the withdrawal of Syrian forces and the ability of the army to operate without sectarian bias. It has not been established that the Tribunal failed to give proper consideration to the issue of effective state protection. There is no suggestion that there was evidence before the Tribunal supporting the proposition that the local (Lebanese) authorities would treat the applicant less favourably (as was the case in SZAIX).
  21. In relation to state protection (the matter in issue in SZAIX) the Tribunal considered the applicant’s claims and evidence about the power of the Syrians. However, given the changed circumstances in Lebanon and the absence of sectarian bias in the army, the applicant’s submissions about the power of the Syrians and the lack of state protection were not such as to require the Tribunal to “focus” (beyond the manner in which it did), on the extent to which the applicant might be subjected to discrimination or denied protection for Convention reason. It considered the issue of whether state protection would be withheld from the applicant for a Convention reason in light of his claims and evidence about what had occurred in the past as well as based on information about the then current situation in Lebanon.
  22. The applicant contended that the Tribunal erred in making no specific inquiries in relation to specific Syrians leaving Lebanon. However while the Tribunal proceeded on the basis that it accepted that some Syrian intelligence operatives were involved in threats or visiting the applicant’s parents, it also noted that there was evidence that no one knew who these people were (except that the applicant’s parents said that they had Syrian accents and the former girlfriend said that her parents had connections with the Syrian authorities) and that the applicant himself had not met such people. It has not been established that it was necessary for the Tribunal to inquire or “focus” on whether some particular Syrians had in fact left Lebanon, given the general description of the visitors to the applicant’s parents’ house, its finding that Syrian forces had left Lebanon and that there had been a change in the control of the authorities in Lebanon compared to what may have been the case in 2004. Its failure to inquire into or address such matters does not constitute jurisdictional error.
  23. Moreover, contrary to the applicant’s contentions the Tribunal did not simply rely on country or “general” information rather than specific material and evidence given under oath, it had regard to the applicant’s evidence given under oath. Insofar as the applicant takes issue with the weight given by the Tribunal to particular items of evidence, it is well established that the merits of the case, including the weight to be given to items of evidence and the credibility to be attached to witnesses, is for the Tribunal to determine (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 185 CLR 259 at 272, 291-292). The Tribunal does not have to posses rebutting evidence before holding that a particular assertion is not made out (Selvadurai v Minister for Immigration and Ethnic Affairs and Another [1994] FCA 1105; (1994) 34 ALD 347 at 348). It is not required to accept uncritically any and all claims made by an applicant (Beaumont J in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451; Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559 at 596 and; Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-170). The Tribunal is entitled to accept or reject or give such weight to particular items of evidence as it considers appropriate in all the circumstances (Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464), provided its findings are reasonably open to it on the available evidence.
  24. The Tribunal did not dismiss the evidence from the applicant, Ms H, the applicant’s parents or the lawyer either in whole or in part because it was not supported by what the applicant’s solicitor described as “marginally relevant” country information.
  25. The Tribunal considered the applicant’s evidence at each of the Tribunal hearings. It did not simply use general independent country information to discredit and disbelieve him. As set out above, the principal reason that the Tribunal found the applicant not to be a credible witness and rejected his evidence in critical respects, was because of inconsistencies in key aspects of his evidence at various stages in the application and review process.
  26. It was open to the Tribunal to have regard to country information in assessing the future and whether the applicant had a well-founded fear of persecution. As Gray, Tamberlin and Lander JJ said in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (at [11]):
  27. In NAHI the Full Court of the Federal Court rejected a submission that the Tribunal had rejected all the appellant’s claims on the basis of “country information” as not substantiated by the reasons for decision. Similarly no such assertion can be made out in the present case. As in NAHI it is apparent from the reasons for decision that the Tribunal also relied on matters such as inconsistencies in the applicant’s claims to form views about the credibility of critical aspects of his claims. As the Full Court stated (at [12]):
  28. The Tribunal found Ms H’s evidence to be inconsistent with the applicant’s and did not accept it to be a reliable or truthful account of the relationship and its consequences and given the overall lack of credibility in the applicant’s evidence it did not give any weight to the written statements from his parents and the lawyer (as discussed further below in relation to ground two). It did not dismiss this evidence on the basis of contrary country information. Hence it is not necessary to consider whether such an approach would have been open to the Tribunal.
  29. Insofar as particular issue was taken with the Tribunal’s discussion of country information in relation to honour killings, the Tribunal did not equate the applicant’s claim with a claim that he would be subject to an honour killing. Rather, it considered it reasonable to assume that if the anger felt by the former girlfriend’s family towards the relationship was to translate into violence, it would have been directed at her in the first instance. However it found that she was never seriously harmed by members of her family or by anyone else. It was in relation to this finding that the Tribunal referred to independent information to the effect that the victims of honour crimes in Lebanon are always women. The Tribunal also had regard to the absence of evidence that Ms H had been harmed or beaten and to the fact that she had not made such a claim to the applicant. The Tribunal did not simply reject the claim that Ms H suffered any serious harm based on this country information. It considered the specific material and evidence before it. It had already found that it did not accept that Ms H’s statement (in which she claimed her parents had threatened many times to kill her if the marriage took place) was a reliable or truthful account of the relationship and its consequences, based on inconsistencies between the claims in her statement and the applicant’s claims.
  30. SZIAX is not in point in relation to this information. The information in question was not irrelevant to the applicant’s claim, given that at the first Tribunal hearing he had claimed that Syrian intelligence forces had threatened his former girlfriend and had told her that if the relationship continued they would kill both her and the applicant. In any event, even if the information on honour killings might be said to be of somewhat peripheral relevance given the precise nature of the applicant’s claims, this does not establish jurisdictional error.
  31. Ultimately, the Tribunal focused on and considered whether the applicant had a well-founded fear of persecution. In deciding that question it properly looked at evidence about what happened in the past as well as other evidence before it. In the context of the events which the Tribunal accepted had occurred, it considered whether the applicant had a fear of future persecution. It was relevant for the Tribunal to have regard to the fact that in the past there had been visits and threats by Syrians to the applicant’s parents in Tripoli (given that it did not accept the claims about the visits that were said to have occurred in Beirut) where the parents were treated disrespectfully but otherwise were not subjected to any serious harm; to the fact that although Ms H was said to have been threatened with serious harm she was not ever harmed herself and to the fact that the applicant never met Ms H’s parents, anyone from her family or anyone from the Syrian secret service who sought to harm him in any way at any stage.
  32. It was also open to the Tribunal to have regard to the fact that if the Syrians genuinely intended to harm the applicant, they could have easily have found him and harmed him and on this basis, as well as on the basis of country information, not to be satisfied that the applicant had a well-founded fear of future harm arising from a relationship that had ceased in mid-2004. It has not been established that the Tribunal applied the wrong test in the manner contended in ground one of the amended application.

Ground Two – apprehended bias

  1. The second ground in the amended application is that the Tribunal decision was vitiated by apprehended bias from the perspective of the appropriately informed lay observer and that such a fair-minded lay observer would reasonably apprehend that the Tribunal failed to bring an open mind to its task in the sense considered in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at [28].
  2. The particulars to this ground are as follows:
  3. In written submissions the applicant contended that the “conduct” of the Tribunal which indicated that it failed to bring an open mind to its task was that it:
    1. represented the applicant’s claim as relating to honour crimes when he made no such claim;
    2. misrepresented the evidence of Ms H and that she did not “emphasise greatly on his plans to marry” as her statement referred only to her plans to marry;
    1. had no, or no real, regard to the applicant’s response to its s.424A letter;
    1. referred to inconsistencies in the applicant’s evidence when a fair reading of the evidence did not lead to that conclusion or the inconsistencies were of a minor nature only;
    2. based its findings on insufficient evidence or no evidence; and
    3. dismissed the written statements tendered by the applicant on an improper basis, as the inconsistencies identified by the Tribunal were not sufficient to bring the statements within the “poison (sic) well” test in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165.
  4. The transcript of the Tribunal hearing was before the Court as an annexure to an affidavit of Raymond Charles Turner affirmed on 5 November 2008. However it was not suggested that the manner in which the hearing was conducted was indicative of bias (except insofar as the Tribunal’s characterisation of oral evidence given by the applicant was relied on under this ground).
  5. It is relevant to note generally that, as von Doussa J stated in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38], the mere fact of adverse findings at the end of the matter does not give rise to any inference as to the Tribunal’s state of mind while the matter was under consideration or of prejudgment of issues that fell for consideration. Even if inferences other than those drawn by the Tribunal were open on the material before it, that does not establish apprehended bias. I have, however, borne in mind that as Allsop J (with whom Moore and Tamberlin JJ agreed) stated in NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 (at [115]):
  6. I have considered each of the matters relied on by the applicant individually and cumulatively. However, as discussed below, neither the particulars to ground two, nor the matters referred to in the applicant’s submissions are such as to establish a reasonable apprehension of bias according to the standard of a hypothetical fair-minded lay observer.

Misrepresentation of Evidence

  1. The applicant’s contentions about misrepresentation of evidence by the Tribunal relate first to its consideration of information about honour crimes in Lebanon. It was submitted that the Tribunal misrepresented the evidence before it, in that it represented the applicant’s claim as relating to honour killings when he had made no such claim. This was said to be a misrepresentation of the nature of the claim to fit the country information before the Tribunal, rather than the other way around.
  2. However, as set out above, the Tribunal did not “represent” that the applicant’s claim related to an honour crime. It considered in detail the actual claims made by the applicant about past persecution. In that context it referred to information about honour crimes in assessing whether Ms H (or the applicant) was ever seriously harmed. The Tribunal accepted (as discussed above), that the applicant was in a relationship with Ms H which was exposed and that Ms H disclosed the nature of the relationship to her strictly Muslim parents “provoking their ire”. However in determining whether it accepted that Ms H’s parents were therefore intent on harming the applicant the Tribunal considered a number of matters, including the fact that the applicant was never directly threatened and never came face to face with the Syrians or with Ms H’s family. It proceeded on the basis that threats had been made against him through his parents, but was of the view that “if those directing the threats against the applicant wanted to seriously harm him they had ample opportunity to do so whilst the applicant was still in Lebanon”.
  3. The Tribunal’s consideration of the fact that Ms H was never seriously harmed by members of her own family or by anyone else did not characterise the applicant’s claim as relating to honour crimes. Rather, information on the fact that victims of honour crimes in Lebanon were always women was one of the matters taken into account in considering the relevance of the fact that Ms H was never seriously harmed. Even if the information on honour crimes might be said to be of somewhat peripheral relevance to the applicant’s claims, the Tribunal did not misrepresent the applicant’s claims as relating to honour crimes.
  4. In assessing whether the Tribunal’s decision was affected by apprehended bias, it is relevant to note that in the Tribunal hearing the applicant’s representative had sought leave to respond in writing to matters that had arisen in the hearing. The Tribunal summarised issues of concern, including whether the threats of harm were serious enough to amount to persecution or were just designed to intimidate the applicant into ending the relationship and whether there was a Convention motivation to the harm he feared. The Tribunal also referred to its credibility concerns, in particular because of the different accounts given by the applicant. It then raised with the applicant information about the situation in Lebanon [transcript pages 30 – 31]:
  5. The Tribunal also put to the applicant and his adviser the fact that it had no information to suggest that “guys who have been in a relationship with a girl of the nature you have discussed have actually faced any kind of serious harm or mistreatment” (transcript page 31), notwithstanding that the Tribunal considered it would be reasonable for such incidents to have been reported by human rights organisations or the media in Lebanon. The manner in which the Tribunal raised these issues gave the applicant the opportunity to comment on such concerns. It alerted him to the Tribunal’s concern about the fact that Ms H told him she was not beaten. In context, the Tribunal’s consideration of information on honour crimes is not indicative of a reasonable apprehension of a failure by the Tribunal to bring an open mind to the matter.
  6. The applicant also contended that the Tribunal misrepresented the evidence of his former girlfriend, Ms H, in particular by noting that her statement “emphasise greatly on his plans to marry” her. This is a reference to the Tribunal’s account in its reasons for decision of the discussion at the hearing of the three written statements provided in support of the application (not just Ms H’s statement). The Tribunal put to the applicant its concern at the hearing that the contents of the statements differed from what the applicant had said (transcript page 29):

The Tribunal also put to the applicant that these inconsistencies cast doubt on his credibility and on the authenticity of the statements (in response to which the applicant addressed his own circumstances).

  1. In its descriptions of the claims and evidence the Tribunal stated that at the hearing it had referred to the fact that the three statements contained claims contrary to the applicant’s own evidence and “noted that all three statements, for instance, emphasise greatly on his plans to marry [Ms H] ...” The Tribunal also observed that, contrary to the applicant’s evidence, the statements suggested that the applicant had to move to Beirut as a result of what had happened to him.
  2. It is the case that Ms H’s statement refers to her intention to marry the applicant, as distinct from his plans to marry. However, her statement and those of the applicant’s parents and the lawyer each refer to marriage plans (the parents stated: “He had the intention to marry her, but her parents didn’t agree”, while the lawyer recorded that the applicant had told him he “had the intention to marry her, but her parents opposed this marriage”). It is apparent from the transcript of the hearing and the findings and reasons part of the Tribunal decision that its concern was with the marked difference between the applicant’s account of the nature of his commitment to Ms H and her claim in that respect. The Tribunal referred specifically to the applicant’s oral evidence that “he was not sure about marrying [Ms H], their one or two conversations on the subject was (sic) limited to eliciting each other’s respective opinions about marriage and that the matter was kept between the two of them”. It detailed this and other differences in the claims, correctly referring to Ms H’s statement that she intended to marry the applicant. The Tribunal recorded and addressed the applicant’s response to the differences in the evidence put to him under s.424A. It did not accept Ms H’s statement to be a reliable or truthful account of the relationship and its consequences, but did accept that, as the applicant claimed, there had been a sexual relationship that was exposed and that Ms H disclosed the nature of the relationship to her parents, provoking their ire.
  3. Seen in the context of what occurred at the hearing and the findings and reasons part of the decision, the Tribunal’s remark in its account of the hearing that it noted that all three statements “emphasise greatly on his plans to marry [Ms H]” is not in any way indicative of a closed mind, predetermination or bias from the objective perspective of the appropriately informed lay observer. Even if the Tribunal misdescribed the precise content of Ms H’s statement in its account of the hearing, it described the statement correctly and clarified its relevance in its findings and reasons. In any event, an incorrect factual finding is not of itself sufficient to constitute jurisdictional error: MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 (at [28]).
  4. It has not been established that the Tribunal’s fact finding was conducted in a manner which can be described as “in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way” as considered in NADH of 2001 (at [115]) per Allsop J. The manner in which the Tribunal described Ms H’s evidence is not such as to show or lead to an apprehension that its conclusions were reached with “a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.” (cf WAKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 32 at [30]).

Ignored logical explanation

  1. Particular (ii) to ground two takes issue with the Tribunal’s consideration of the response to the s.424A letter. The applicant contended that the Tribunal had no regard, or no real regard, to his response (through his adviser) to the s.424A letter on aspects of his evidence including inconsistencies and late claims relevant to its assessment of his credibility. In that response the applicant’s adviser contended that what the Tribunal suggested were apparent inconsistencies were not in fact inconsistencies, that matters such as the different view of the relationship expressed by the applicant and his former girlfriend were not “significant” inconsistencies and gave explanations for matters such as the applicant’s delay in leaving Lebanon and applying for protection visa.
  2. However the Tribunal did not accept that this response provided a satisfactory explanation for what it considered to be significant inconsistencies. Such an approach was open to the Tribunal on the material before it for the reasons it gave and is not such as to constitute or give rise to an apprehension of bias. The fact that the s.424A response is characterised by the applicant’s solicitor as “logical”, does not mean that the Tribunal’s lack of satisfaction with the explanation for what it regarded as inconsistencies in the applicant’s own evidence and between his evidence and that of Ms H was, either alone or in conjunction with the other matters particularised, indicative of bias from the perspective of the appropriately informed reasonable observer.
  3. In making its credibility findings the Tribunal set out particular inconsistencies of concern and referred to the response to the s.424A letter, in particular the adviser’s claim that: “It is not uncommon in relationships for one party to have a different view of the timing of relationship events and to form an intention to marry at different times. Indeed, it would be unusual if each party decided to marry at precisely the same time.” The Tribunal did not ignore this explanation. However it found that this response did not “satisfactorily address” what (contrary to the adviser’s contention) it considered to be “significant inconsistencies” and credibility issues.
  4. The inconsistencies in issue were detailed by the Tribunal in its reasons for decision, both in the account of evidence at the hearing and in a summary immediately before its rejection of the adviser’s explanation. It cannot be said that the Tribunal’s approach was unreasonable or not explained. The Tribunal referred to inconsistencies in the applicant’s accounts at the two Tribunal hearings of the relationship’s inception, duration, exposure and resulting problems. It gave as an example of such inconsistency his seemingly “adamant” evidence at the first hearing that the relationship started in 2003 and that his problems began in February 2004 and his evidence at the second hearing that the relationship started in February 2004 and was exposed in June 2004. It also detailed the marked difference between the applicant’s account of the nature of his commitment to Ms H and her written claims. In all the circumstances it has not been established that the Tribunal’s approach to the explanation in the response to the s.424A letter, which it recorded but found did not satisfactorily address the significant inconsistencies, was indicative of a closed mind or apprehended bias.

Minor discrepancies

  1. Particular (iii) to this ground is that the Tribunal relied on minor discrepancies. It was submitted that the Tribunal referred to inconsistencies in the applicant’s evidence, but that a fair reading of the evidence did not lead to the conclusion that there were such inconsistencies. In the alternative, if there were inconsistencies they were said to be of such a minor nature that the Tribunal’s findings did not follow.
  2. Reference was made to the Tribunal findings about “significant” inconsistencies in the evidence about the relationship, in particular as to its inception and duration. The applicant submitted (as had been suggested in the s.424A response) that differences of a few months in the accounts given by the applicant in that respect were not sufficient for the Tribunal to make the harsh finding of “significant” inconsistencies that it made.
  3. Issue was also taken with the Tribunal’s finding that the applicant’s oral account of his commitment to his former girlfriend differed markedly from her written claims in relation to the nature of their respective commitment to the relationship. The solicitor for the applicant submitted that the Tribunal’s characterisation of the inconsistencies as significant inconsistencies was a factor indicative of apprehended bias, albeit he acknowledged that it was for the Tribunal to decide whether an explanation was sufficient. It was submitted that to simply say in relation to the credibility of a witness that he failed because of such an inconsistency did not show an open mind.
  4. As set out above, it was open to the Tribunal on the material before it to find inconsistencies in the manner that it did and to characterise the inconsistencies as significant. Its approach to the evidence is not such as to establish or go towards establishing apprehended bias in the manner considered in NADH of 2001 or otherwise. At the first Tribunal hearing the applicant told the Tribunal that he and his former girlfriend had been meeting on weekends from the beginning of 2003 up until he left Lebanon in 2004 and that they had been going out for about one year before the trouble started in about February 2004. He also stated that his parents moved to Beirut in March 2004. In contrast, at the second Tribunal hearing, when asked when he met Ms H, the applicant said in February or March 2004. He claimed that he stopped going to Tripoli on weekends in June or 2004, four, five or six months after he started seeing her, that he last saw her on the second or third weekend in June 2004, and that her family found out about the relationship in the second or third week in June 2004 (which, as the legal representative for the first respondent pointed out, was after the time he had claimed his parents had moved to Beirut).
  5. It was open to the Tribunal to have regard to such inconsistencies, albeit the events referred to took place some four years earlier and to characterise them as significant. It has not been established that its approach was unreasoned or that it amounted to mere assertion lacking rational foundation, or was plainly wrong or selective of material going one way as considered in NADH of 2001.
  6. The Tribunal also had regard to inconsistencies in relation to the evidence about the seriousness of the relationship. As discussed above, it made the point that Ms H (and the other statement makers) referred to the fact that the applicant and Ms H wished to marry. The applicant’s parents had stated that their son had met a girl and that: “He had the intention to marry her, but her parents didn’t agree”. The lawyer had stated that the applicant said that he had “met a girl from a different confession and had the intention to marry her, but her parents opposed this marriage” and Ms H said that during 2003 she met the applicant and that “I had the intention to get married with him, but when I told my parents about this marriage, they got very angry and threatened many times to kill me if this marriage took place”. In contrast, the applicant’s evidence at the Tribunal hearing was that he had had a relationship with Ms H that was sexual in nature, that lasted for only a short period of time; that initially they did not talk about marriage; that subsequently it was just a matter between the two of them and they only spoke about it once or twice by asking each other’s opinion about marriage. There was no suggestion by the applicant that anyone else was privy to any sort of marriage plans.
  7. The Tribunal was entitled to find that these inconsistencies were of significance and that they were not adequately explained by the adviser’s suggestion that parties to a relationship may have different intentions or a different view about the timing of relationship events. Its reasoning in that respect cannot be described as unreasoned or mere assertion lacking rational or reasoned foundation, or otherwise such that the “fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.” (as Allsop J considered in NADH of 2001 at [115] and cf. SZIEW v Minister for Immigration and Citizenship and Another [2008] FCA 522; (2008) 101 ALD 295).
  8. The applicant also submitted that the fact that the Tribunal accepted the core of his claims but did not accept what flowed from it was indicative of bias. It was pointed out that the Tribunal accepted that there was a relationship between the applicant and Ms H, that her parents became intent on harming him and utilised their close relationship with Syrian intelligence operatives who visited his parents’ house in Tripoli on two or three occasions and threatened to kill him. Issue was taken with the fact that the Tribunal characterised these events on the basis that, apart from the fact that the parents were treated disrespectfully, they were not subject to any serious harm. However while the Tribunal accepted that certain past events had occurred in Tripoli it also had regard to what did (or did not) occur thereafter as well as to country information. The fact that it accepted certain aspects of the claims but not the applicant’s overall credibility or all of his claims is not, having regard to the whole of the decision, such as to give rise to a reasonable apprehension of bias.
  9. In addition the applicant took issue with the Tribunal’s consideration of his claim at the second hearing that he never slept at the same place in Beirut. The Tribunal found that this was a belated claim raised at the hearing designed to enhance his case for a protection visa. It was contended that to enhance a claim for a protection visa was not to invalidate the basic core of the claim, particularly in circumstances where the basic aspects of the claim had been accepted and that the Tribunal’s approach to this claim was also indicative of bias.
  10. The Tribunal’s treatment of the evidence about what occurred after the applicant moved to Beirut is not indicative of bias. At the second hearing he claimed that he never slept at the same place in Beirut. This was contrary to his evidence at the first hearing. As the solicitor for the first respondent pointed out, it was open to the Tribunal to find that the applicant was not simply developing claims, but was making claims which contradicted his earlier claims. The Tribunal recorded that when it asked the applicant why he had not previously mentioned that he did not sleep at home he merely acknowledged that he had not raised this claim earlier. He then claimed he had not become aware until after the first hearing that there had been further visits to his parents’ house and the school where he worked in Beirut by operatives from Syrian intelligence. The Tribunal had regard to the absence of any “meaningful or satisfactory answer” as to why he did not disclose this information to the Tribunal through his adviser when he became aware of it. The findings of belated claims designed to enhance his case and of inconsistency were open to the Tribunal, even if another decision-maker may not have placed such significance on these inconsistencies. There is no basis established for the assertion that the Tribunal was not in a position to regard such inconsistencies as significant having regard to the basis of the applicant’s claim to have a well-founded fear of persecution. Nor has it been established that such reasoning was indicative of an apprehension of bias, either considered alone or in conjunction with the matters raised by the other particulars.

Insufficient or no evidence

  1. Particular (iv) is that the Tribunal based its findings on insufficient or no evidence in assessing the impact of the past events and finding that the applicant’s parents had not been subjected to serious harm (apart from being treated disrespectfully) and that if those threatening the applicant had wanted to seriously harm him they had ample opportunity to do so while he was in Lebanon.
  2. However, again, these findings were open to the Tribunal on the material before it. It has not been established that the Tribunal findings were perverse or otherwise unreasonable in the sense of being contrary to all the probative material before it (see SZEOQ v Minister for Immigration and Citizenship [2008] FCA 257 at [27] – [28] per Lander J).
  3. As discussed above, the Tribunal assessed the evidence of past harm to the applicant and his parents and made findings on the basis of that evidence and other evidence before it, in a manner that is not indicative of a reasonable apprehension of bias either considered alone or in conjunction with the other matters relied on under this ground.

Dismissed evidence on an improper basis

  1. Particular (v) is that the Tribunal dismissed evidence (the written statements tendered by the applicant from Ms H, the applicant’s parents and the lawyer) on an “improper basis”. The Tribunal found that given the overall lack of credibility within the applicant’s evidence it did not give any weight to the written statements from the lawyer and the applicant’s parents submitted in support of the application for review. It referred to S20/2002.
  2. The applicant contended that this reference appeared to involve reliance by the Tribunal on the so-called “poisoned well” argument in S20/2002 (see Gleeson CJ at [11] – [12]). The applicant submitted that in S20/2002 the Tribunal had found (for reasons given at length) that the applicant’s story was implausible and in some important respects unbelievable. It had rejected the evidence of a corroborating witness even though it “had no separate reason to doubt his credibility other than the reasons ... already given for rejecting the claim [it] was considering” (Gleeson CJ at [12] and see also McHugh and Gummow JJ at [42] and [44]).
  3. The so-called “poisoned well” argument is a reference to the statement by McHugh and Gummow JJ in S20/2002 at [49]:
  4. As Gleeson CJ stated at [12]:
  5. The applicant’s contention under this ground was not that there was irrational or illogical reasoning or unreasonableness constituting jurisdictional error on the part of the Tribunal. Rather it was submitted that the sort of reasoning considered in S20/2002 was not open to the Tribunal in this case and hence that its conclusion that it would give no weight to the witnesses’ statements of support was a factor indicative of apprehended bias.
  6. In essence it was submitted by the applicant that the so-called “poisoned well” argument had to be supported by very strong findings in relation to credibility (as was said to have been the case in S20/2002). It was submitted that in this case the credibility findings made by the Tribunal in relation to the applicant’s evidence did not justify the total rejection of the supporting evidence. It was contended that while the Tribunal had regard to inconsistencies, it found only that these “cast doubt” on the applicant’s credibility and while it found that a late claim was designed to enhance the applicant’s claim for a protection visa, it accepted the kernel of the applicant’s claims, contrary to its suggestion as to the applicant’s overall lack of credibility. On this basis it was said that the Tribunal’s credibility findings and the way it described what the findings meant in relation to the applicant’s credibility fell short of the Tribunal’s findings in S20/2002 as a basis for dismissing corroborative evidence and thus were indicative of bias.
  7. It is relevant to note first that while there were three written statements relied on by the applicant, the Tribunal took a different approach to the statement from Ms H compared to those from the applicant’s parents and the lawyer. It did not simply give Ms H’s statement no weight by reference to S20/2002 in light of the lack of credibility of the applicant’s evidence. Rather, it considered the claims made by Ms H but did not accept her statement as a reliable or truthful account of the relationship with the applicant and its consequences, because of serious inconsistencies between her evidence and that of the applicant.
  8. The Tribunal’s reasons in relation to Ms H’s statement are not indicative of apprehended bias. It specifically considered Ms H’s statement and on the basis of inconsistencies between that statement and the applicant’s claims, not only found that these inconsistencies cast doubt on the credibility of the applicant, but also that they cast serious doubt on the credibility of Ms H’s statement about the relationship and its consequences. It was on this basis that the Tribunal did not accept that Ms H’s statement was a reliable or a truthful account of the relationship and its consequences. This has not been shown to be an improper or insufficient basis for such a conclusion.
  9. The rejection of the supporting statements on the basis of the overall lack of credibility within the applicant’s evidence related only, as the Tribunal made clear, to the written statements from the lawyer and the applicant’s parents.
  10. It is the case that, notwithstanding its concerns about the applicant’s credibility, the Tribunal accepted that there was a short-term sexual relationship between the applicant (a Maronite Christian), and Ms H (a Muslim), that the relationship was eventually exposed and that Ms H disclosed the nature of the relationship to her strictly Muslim parents “provoking their ire.” The Tribunal also proceeded on the basis that threats were directed at the applicant through his parents as had been claimed. In this sense it did accept part of the applicant’s claims about past events. However it did not accept the applicant’s claim that members of his family had received visits in Beirut from those he feared and found no evidence to suggest that they suffered other harm. It did not accept that Ms H was beaten or suffered serious harm.
  11. The Tribunal considered the nature of the threats in question and the consequences and, contrary to the applicant’s claims, was satisfied the threats levelled against him were merely designed to intimidate and scare him and his family. It found that those making the threats did not seriously intend to act on them, that the threats did not amount to serious harm and that they did not give rise to any real chance of persecution for a Convention reason in the reasonably foreseeable future. It was in that context (that is, in assessing whether the threats which it accepted had occurred constituted persecution or gave rise to a well-founded fear of persecution) that the Tribunal found that, given the overall lack of credibility in the applicant’s evidence, it gave no weight to the written statements from the lawyer and the applicant’s parents.
  12. The fact that the Tribunal accepted that there was a relationship of a limited nature between the applicant and Ms H and proceeded on the basis that certain threats were made is not such as to establish that its conclusion that no weight should be given to the supporting statements because of the overall lack of credibility within the applicant’s evidence is indicative of apprehended bias. While the Tribunal was prepared to accept certain aspects of the applicant’s claims despite the lack of credibility within his evidence, it rejected critical aspects of his claims based on inconsistencies and other concerns. As Gleeson CJ pointed out in S20/2002 (at [12]) it is not necessarily irrational or illogical for the Tribunal, convinced that the applicant was “fabricating a story, which is considered to be inherently implausible”, to reject evidence corroborative of that story. Nor is it necessarily indicative of apprehended bias for the Tribunal, convinced that there was a lack of credibility within the applicant’s evidence and that he was fabricating critical aspects of the story relevant to his claim to have a well-founded fear of persecution, to reject evidence corroborative of such critical aspects of the claims “even though there is no separate or independent grounds for its rejection, apart from the reasons for disbelieving the [applicant]” (at [12]). Gleeson CJ made these remarks in relation to a Tribunal decision in which the Tribunal found the applicant’s story implausible “and in some important respects unbelievable” (at [12]). In S20/2002 the Tribunal had made express findings that the applicant had misled the Tribunal, that is to say, lied (McHugh and Gummow JJ at [45]). While the Tribunal in this case did not express itself in such terms, it clearly rejected as untruthful and “designed to enhance his case for a protection visa” the applicant’s “belated” claims at the second hearing that he slept at different places in Beirut between June/July 2007 and September 2007, that the Syrian operatives exhibited on-going interest in him in Beirut by visiting his home and place of work or that there were further encounters with his parents following their move to Beirut. It has not been established that it was irrational or indicative of a closed mind for the Tribunal to reject these claims without weighing the alleged corroborative material. As McHugh and Gummow JJ stated at [49] in S20/20002 “it is not irrational to focus first upon the case as it was put by the applicant.”
  13. The statements of the parents and lawyer had limited potential corroborative operation, essentially in relation to the extent of the threats, whether those making the threats seriously intended to act on them and whether the threats amounted to serious harm or gave rise to any real chance of persecution in the future. The Tribunal had already rejected, as designed to enhance the applicant’s claims for a protection visa, critical aspects of the applicant’s claims in that respect based on its concerns about his credibility.
  14. The Tribunal’s treatment of the supporting witness statements has to be seen in context and in light of the contents of the statements. The statements were not formal documents and, as the Tribunal raised with the applicant at the second hearing, were inconsistent with the applicant’s evidence in a number of fundamental respects. Hence they were not potentially corroborative on those issues. The statements focussed on marriage and suggested that the applicant intended to marry Ms H. Insofar as they suggested that the applicant was threatened and had to move his residence or his work to Beirut, this was in contrast to the applicant’s own evidence that since 1993 and at all relevant times he had been living and working in Beirut and only travelled to Tripoli to visit his parents and family on the weekends. Each statement did suggest that the persecution “followed” the applicant to Beirut and that the applicant was advised to leave Lebanon, although they did not refer to the situation at the time the statements were made.
  15. In these circumstances the Tribunal’s reasoning in relation to the weight to be given to the written statements from the lawyer and the applicant’s parents has not been shown to be so defective as to demonstrate or give rise to a reasonable apprehension in the mind of a hypothetical reasonable observer that the Tribunal had not brought an impartial mind to the proceedings (S20/2002 per Gleeson CJ (at [4]) and McHugh and Gummow JJ (at [52])).

State protection

  1. The last particular said to be indicative of apprehended bias is that the Tribunal “failed to recognise” that the State was unable or unwilling to protect the applicant. This seeks merit review and is not indicative of bias.
  2. Ground two is not made out. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Barnes FM


Associate:


Date: 20 February 2009

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/FMCA/2009/113.html