1416208 (Refugee)

[2015] AATA 3300

1416208 (Refugee) [2015] AATA 3300 (14 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416208

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:14 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 August 2015 at 1:47pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

   Background, Claims and Evidence

2. The applicant, a Sunni Muslim, is [age] years old and a citizen of Lebanon. The applicant’s late mother was an Australian citizen, but she resided in Lebanon. In February 2011 the applicant accompanied her mother, who was ill at the time, to Australia. She subsequently applied to the Department of Immigration (the department) for a carer visa, but her mother died in August 2013. The applicant then applied to the department for a Protection (protection) visa [in] September 2013. The delegate refused to grant the visa [in] September 2014.

3. In her protection visa application the applicant essentially claimed that during the Lebanese civil war her house was destroyed and she had experienced displacement. She became a widow after her husband died in 2005. His death was due to [a medical condition], as well as injuries he had sustained a few years earlier after being abducted and tortured by the Syrians. The applicant referred to bombings in north Lebanon and claimed that the war in Syria will lead to a ‘world war’. She stated that the authorities are unable to protect her, referring to Syria’s interference in Lebanese affairs over the years and the assassination of a number of politicians.

4. In support of her application for a protection visa, the applicant submitted a number of news items sourced from the internet relating to the bombing of two mosques in Tripoli in August 2013; US reaction to Syria’s use of chemical weapons; and Wikipedia entries and general information regarding a number of assassinated Lebanese political figures, including Rafic Hariri, Rashid Karami and Bachir Gemayel.

5. In her interview with the delegate, held [in] July 2014, and at the Tribunal hearing on 11 August 2015, the applicant claimed to fear war and terrorism. She also claimed that she has lost her house, she would be unable to live with her children, she cannot work and she would not receive medical treatment in Lebanon.

6. In a pre-hearing submission, dated 7 July 2015, the applicant’s representative stated ‘it is quite clear from [the applicant’s] statements and the claims she expressed during the interview with DIBP officer that those claims do not fall within the definition of a refugee…’ It was stated that the applicant, a widow, was residing at [her home town] in Tripoli in a rented flat. During the armed conflict in Tripoli between Sunnis and Alawis, her unit was burnt down. Accordingly, she does not have a home to return to. She is unable to rent a unit as she has no income and no skills to enable her find work. Her children are unable to support her and due to her ‘bad’ relationship with her daughters-in-law and sons-in-law, they are unwilling to provide her with full and free accommodation. If she goes back to Lebanon, she would have no shelter and no income to survive on. It was submitted that the applicant’s case ‘is a humanitarian one that requires intervention from the Minister’.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the DFAT Country Report Lebanon (published on 25 February 2014) and the DFAT Thematic Report-Sectarian Violence in Lebanon (published on 18 December 2013).

    Analysis, Findings and Reasons

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. Both in his pre-hearing submission and at the hearing the applicant’s representative acknowledged that the applicant does not meet the criteria for the grant of a protection visa. Nevertheless, the Tribunal has examined and assessed the applicant’s claims for protection.

14. The Tribunal has some concerns in relation to the applicant’s claims that she would have no accommodation or shelter if she were to return to Lebanon. At the hearing, the applicant gave evidence to the effect that she has [a number of] children in Lebanon – [details deleted]. Other than her youngest [son] and her youngest [daughter], all her children are married. [Some of her children] reside in a unit they have effectively inherited from their [grandparents]. The unit is situated in a building inhabited by the applicant’s late husband’s [relatives]. Her youngest daughter resides with [an older sibling] and her oldest daughter, who is now divorced, lives with one of her [siblings]. She further stated that [some of her children] are all employed and have a steady income.

15. At the departmental interview the applicant stated that she is not in contact with any of her children other than two of her daughters. She stated that her children did not speak to her because she had left them to come with her mother to Australia. She did not offer any other persuasive reason as to why her children were not speaking to her.  At the hearing, however, she provided further information, stating that she is in contact with all of her children, albeit less frequently with her sons and some of her daughters.

16. While the Tribunal appreciates that the applicant's children have their own financial obligations and commitments, the Tribunal does not accept that they would not provide the applicant with shelter, support, care and assistance if she were to return to Lebanon.

17. Even if the Tribunal were to accept, which it does not, that the applicant’s children would not provide her with accommodation, care and support, there is no evidence before the Tribunal to suggest that the applicant’s inability to rent a house or find accommodation is essentially and significantly related to a Convention reason, including membership of any particular social group apparent on the face of the evidence. Similarly, any limitations the applicant may face in accessing employment in Lebanon do not appear to be Convention related. In her evidence the applicant stated that she would not receive medical assistance if she were to return to Lebanon. However, she did not claim that she was suffering from any medical ailments requiring treatment. Nor did she claim that she would be denied medical care in Lebanon for a Convention reason. The Tribunal is not satisfied that there is a real chance that the applicant will face serious harm, including significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist, for a Convention reason.

18. The Tribunal accepts that a few years before the withdrawal of the Syrian troops from Lebanon in 2005, the applicant’s husband was abducted by the Syrian forces without justification. The Tribunal accepts that he was detained for 40 days and seriously mistreated before being released. The Tribunal also accepts that ‘long before’ the applicant’s husband died in 2005, her brother was also taken and mistreated by the Syrians. The applicant, however, did not claim that following these incidents the Syrians or anyone else had targeted or expressed any interest in the applicant or any other member of her family. There was nothing in the applicants’ evidence to suggest that she fears being targeted by the Syrians or the Lebanese authorities for a Convention reason. The Tribunal finds that the applicant does not face a real chance of being seriously harmed by the Syrians or anyone else. 

19. In her protection visa application the applicant referred to the bombing of two mosques in Tripoli in August 2013. The Tribunal has found no information in the sources consulted to suggest that the incident was a typical occurrence. On the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be killed or harmed or otherwise persecuted in the context of bombings of this nature if she were to return to Tripoli.

20. Throughout the process the applicant has also expressed concerns in relation to the unfolding events in the region, tension, terrorism and potential war. While the Tribunal appreciates the applicant’s concerns, the prospect of any war in or involving Lebanon is speculative. There is no evidence before the Tribunal to suggest that the tensions, lack of general security and the instability the applicant is concerned about is faced by her personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason.

21. The Tribunal is not satisfied, either individually or cumulatively, that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Lebanon now or in the reasonably foreseeable future.

22. The Tribunal has considered whether the applicant meets the complementary protection criterion in s.36(2)(aa).

23. The Tribunal is not satisfied that any financial difficulty faced by the applicant in Lebanon, including limited access to employment; any limitations, financial or otherwise, she might face in being able to rent accommodation or any limitation she might encounter in accessing medical services, if she was ever in need of such access, would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm from the authorities that would involve the infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. 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 Lebanon, there is a real risk that she will be subjected to significant harm.

24. The Tribunal is not satisfied that the applicant faces a real risk of being significantly harm by the Syrians, the Lebanese authorities or anyone else arising from her late husband’s or her brother’s experiences many years earlier. 

25. With regard to the applicant’s concerns in relation tension, instability, terrorism and potential war in Lebanon, under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, lack of general security and the instability the applicant fears are faced by the population generally and not by her personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Lebanon as a result of general lack of security and instability.

26. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

27. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

28. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

29. In his pre-hearing submission, the applicant’s representative stated that the applicant’s case ‘is a humanitarian one that requires intervention from the Minister’. At the hearing the applicant’s representative essentially submitted that he had advised the applicant that she does not meet the criteria for the grant of a protection visa. He contended that the applicant is as elderly woman with no skills. Lebanon has no social security system and the applicant’s children are unwilling or unable to help her because they do not earn much money. He submitted that this is a ‘humanitarian and compassionate’ situation.

30. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Shahyar Roushan
    Senior Member