DZT18 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judge: DAVIES J
• Judgment Date: 10 October 2019
• Neutral Citation: [2019] FCA 1639
• Date: 10 October 2019

FEDERAL COURT OF AUSTRALIA

DZT18 v Minister for Home Affairs [2019] FCA 1639

Appeal from:	DZT18 v Minister for Home Affairs & Anor [2019] FCCA 734
File number:	NSD 568 of 2019
Judge:	DAVIES J
Date of judgment:	10 October 2019
Catchwords:	MIGRATION – appeal from Federal Circuit Court – primary judge dismissed application for judicial review of decision of Administrative Appeals Tribunal affirming decision to refuse grant of protection visa – appellant a Lebanese citizen convicted of terrorism and sentenced to death with additional criminal matters pending – Tribunal not satisfied of real risk of significant harm – Tribunal did not reconcile inconsistent evidence – Tribunal did not consider whether prison conditions would constitute significant harm as defined in s 36(2A) of Migration Act 1958 (Cth) – primary judge erred by failing to find Tribunal fell into jurisdictional error by making legally unreasonable finding of fact and failing to consider prison conditions and country information – error material – appeal allowed
Legislation:	Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A)
Cases cited:	Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; [2019] HCA 3 Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510; [2017] FCAFC 73 SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Date of hearing:	20 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human RightsDelete these rows - not required
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Appellant:	Mr M Albert
Solicitor for the Appellant:	Sky Legal
Counsel for the First Respondent:	Ms K Hooper
Solicitor for the First Respondent:	Minter Ellison
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice

ORDERS

		NSD 568 of 2019
BETWEEN:	DZT18 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	DAVIES J
DATE OF ORDER:	10 october 2019

THE COURT ORDERS THAT:

1. The appellant has leave to rely upon ground 1 of the Amended Notice of Appeal dated 12 August 2019.

2. The appeal be allowed.

3. The orders of the Federal Circuit Court of Australia made on 26 March 2019 be set aside and the matter remitted to the Administrative Appeals Tribunal for determination according to law.

4. Subject to argument, the first respondent pay the appellant’s costs of the appeal, and of the proceeding below, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1. The appellant has appealed the decision of the Federal Circuit Court of Australia (“FCC”) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”) which affirmed the decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a protection visa. For the reasons that follow the appellant is granted leave to amend and rely upon the grounds of appeal in the form of the amended notice of appeal dated 12 August 2019 and the appeal should be allowed.

Background

2. The appellant is a citizen of Lebanon. In May 2010 he came to Australia on a Sponsored Family Visitor (Class UL-679) visa and shortly thereafter applied for a protection visa. A delegate of the Minister refused that application and in August 2011 the Refugee Review Tribunal affirmed the delegate’s decision.

3. In November 2012 the appellant lodged a second application for a protection visa. That application was accepted as valid following the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 (Allsop CJ, Buchanan and Griffiths JJ). In May 2015 a delegate of the Minister refused to grant the appellant a protection visa and in July 2018 the Tribunal affirmed that decision.

4. The appellant’s protection claims were based on three circumstances. Only two of those circumstances are relevant to the present appeal, being the appellant’s claims that:

1. between 2007 and 2009 he was detained without charge at the Roumieh Prison near Beirut for suspected involvement in terrorism. He was released in May 2009 after his family paid bail. He left Lebanon in May 2010 and came to Australia. On 15 May 2014, an arrest warrant was issued in Lebanon for him on the substantive charge of terrorism. The trial was held in his absence and he was found guilty and sentenced to death;

2. Lebanese authorities advised the Tribunal in February 2017 that the appellant has additional criminal matters pending and so he would be at a real risk of significant harm arising from the grave prison conditions in Lebanon, if he was to return there in the reasonably foreseeable future and was arrested on those additional pending criminal charges.

5. Relevantly to this appeal, the Tribunal found that the appellant had been convicted of terrorism offences by the Lebanese Judicial Council in 2014 and the death penalty was imposed as the sentence. However, the Tribunal did not accept that there was a real risk that the death penalty would be carried out on the appellant, should he return to Lebanon. That finding was based on the translation of a written statement from the appellant’s lawyer in Lebanon that the appellant “was spent his execution and has been suspended for almost two years and then released on bail”, and upon country information that since 1998 Lebanon had upheld an unofficial moratorium on executions and there was no indication that Lebanon proposed to end its moratorium.

6. The Tribunal also accepted that if the appellant returns to Lebanon in the foreseeable future the Lebanese authorities may seek to arrest him in relation to the additional criminal charges against him pending in Lebanon but found no indication that it would be an arbitrary arrest. After also noting country information reported by DFAT indicating that those arrested in relation to sectarian violence or extremism face a particularly high risk of torture at the hands of authorities, the Tribunal found no indication that the appellant’s outstanding criminal matters had any connection to sectarian violence or extremism. The Tribunal accordingly did not accept that he would be likely to be subject to torture, or cruel or inhuman treatment or punishment, or degrading punishment if he returned to Lebanon in the foreseeable future.

7. For these reasons the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Lebanon, there is a real risk the appellant will suffer significant harm. In so concluding, the Tribunal did not consider...