1416419 (Refugee)

[2016] AATA 4307

1416419 (Refugee) [2016] AATA 4307 (18 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416419

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Chris Thwaites

DATE:18 August 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 August 2016 at 11:18am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Lebanon, applied for the visas [in] August 2013.

3. [In] September 2014 the delegate refused to grant the visas.

4. On 2 October 2014 the applicants applied to the Tribunal for review of that decision.

   CONSIDERATION FO CLAIMS AND EVIDENCE

5. The Tribunal has before it the Department’s file relating to the applicants’ protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provided to the Tribunal by the applicants.

6. The applicants’ protection visa application forms indicate the first named applicant is the mother of the second named applicant who was born in [year], and third named applicant who was born in [year]. The visa application forms indicate the first named applicant has made claims of her own for protection, and the second and third named applicants have been included in the application as members of the same family unit who do not have their own claims for protection.

7. The first named applicant’s (the applicant) written reasons for claiming protection are contained in her visa application form. In that form she indicates that she left her country because her husband (who she is now separated from) lived in Australia and at the time she wanted to live with him. The applicant indicates she did not experience harm in her country. The applicant states that she fears that if she goes back to Lebanon, she will have to reside with her parents-in-law as she is still married under Sharia law. Her husband’s family will mistreat her, abuse her and she will be locked away. She states that if she leaves the house, her husband may file a cohabitation lawsuit ‘Bayt Al Ta’a’ (House of Obedience). The applicant states a wife cannot leave the marital home without the permission of the husband. The applicant states that if she divorces and goes back to Lebanon, she will have the legal custody of her children until the age of seven. Her family-in-law could torture her and kill her to take the children. If she gets remarried, the children will be given to the father’s family, who are violent and dangerous. The applicant indicates she does not think the authorities in Lebanon can and will protect her and states the authorities can be bribed to forget about any accident that can occur.

8. The applicant provided to the Department a copy of an intervention order made by the Magistrates’ Court at [Town 1] dated [in] June 2013 naming the applicant’s husband as the respondent, noting the applicant as the affected family member. The order notes the respondent was at court at the time the order was made. The order prohibited the respondent from: committing family violence, approaching, telephoning, or otherwise contacting the protected person unless in the company of a police officer, being anywhere within 200m of the protected person, being at all within 200m or any other place where the protected person lives, causing another person to engage in conduct prohibited by the order. The order allowed the respondent to attend his family residence in the company of a police officer to obtain his personal property, and then excluded the respondent from that residence. The order expired [in] June 2014.

9. The applicant also provided copies of internet articles in relation to family law in Lebanon to the Department.

10. As noted above, [in] September 2014 the delegate refused the applicants protection visas. According to the delegate’s decision record, a copy of which was provided to the Tribunal by the applicants, the delegate accepted there had been an incident in which the applicant’s husband was aggressive and pushed her, and that he subsequently left the house and that an intervention order was made against him. The delegate noted there was no evidence presented that the applicant had been threatened or that there was a risk of harm by her husband since that time. The delegate noted the applicant’s husband had made no attempts to see his children and had not made any physical approaches to the applicant. Therefore the delegate did not accept the applicant is threatened by her husband or that he posed any risk to her or her children’s safety.

11. While the delegate accepted that if the applicant returned to Lebanon, she would be subject to Sharia Law as a Sunni Muslim in relation to separation, divorce and custody of her children, the delegate found that these laws applied to all Muslims who are separated and divorced, and the delegate considered these laws were laws of general application and not discriminatory applied selectively to women.  The delegate noted that while these laws disadvantaged women in divorce proceedings, country information also indicated no laws restricted women’s freedom of movement or place of residence and that woman were able to travel without their husband’s authority.

12. The delegate concluded that in this case, while there was one incident of violent behaviour on the part of the applicant’s spouse, there was no evidence that she was threatened at any other time or at risk of physical harm. There was no evidence presented that the applicant had been threatened with harm by her in-laws and she stated that she had previously had a good relationship with them. Therefore the delegate was not satisfied on the basis of the evidence before her that the applicant would be subject to mistreatment by her in-laws in Lebanon.

13. The delegate noted there was no previous history of violence towards the applicant in Lebanon and she had not needed state protection. The delegate considered the applicant’s claims regarding her husband and his family are speculative and they did not appear to be a reasonable basis for the applicant’s fear of harm. The delegate concluded that while the applicant feared losing custody of her children, she would under current Lebanese laws, be entitled to their custody until they reached nine years of age.

14. While the delegate accepted that ‘separated or divorced women in Lebanon’ could be conceived as a particular social group for the purposes of the Refugees Convention, on the evidence before her, the delegate was not satisfied that there was a real chance that the applicant will be subject to serious harm amounting to persecution in the reasonably foreseeable future if she returned to Lebanon. Therefore the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason. Therefore the delegate was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there was a real risk she would suffer significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). Therefore the delegate was not satisfied Australia had protection obligations to the applicant and therefore refused to grant her a protection visa, and subsequently refused to grant the second and third named applicants protection visas as members of the family unit included in the application.

15. As noted above on 2 October 2014 the applicants applied to the Tribunal for review of that decision.

16. The applicant provided to the Tribunal a copy of an intervention order made in the Magistrates’ Court at [Town 1] dated [in] September 2015, noting the applicant and her two children as affected family members, and the applicant’s husband as the respondent. The court ordered the respondent must not commit family violence against the protected persons, or intentionally damage any property of the protected persons or threaten to do so, attempt to locate follow or keep the protected persons under surveillance, publish on the internet or by email or other electronic communications any materials about the protected persons, contact or communicate with the protected persons, approach or remain within 5m of the protected persons, go or remain within 200m of their address or any other place where the protected person lives, or get another person to do anything the respondent must not do under the order. The order expires [in] September 2020.

17. The applicant also provided to the Tribunal a copy and its English translation of the document titled Travel Ban legal document number [number] extracted from documents registered number [file number] for 2015, ordering the applicant be prohibited from leaving Lebanese territories till Marital Obedience legal proceedings are decided by the court and until further notice.

18. The applicant also provided to the Tribunal a copy of a document and its English translation with the address box for the Republic of Lebanon Ministry of [Department] and [titled], stating the Department has decided to execute the ruling issued by the Religious Court banning the applicant from travelling abroad.

19. On 14 June 2016 the applicant’s representative provided a written submission and documents in support of the application to the Tribunal.

20. The written submission summarises the applicant’s background and submits the applicant fears persecution on the following Convention grounds: membership of a particular social group, namely ‘divorced woman’. The written submission addresses issues raised in the delegate’s decision record including the chance of serious harm and refers to a number of country information reports and articles in relation to the treatment of women who are separated and/or divorced in Lebanon.

21. The written submission states that if the applicant was to seek divorce in Lebanon, proving hardship or discord may lead to further consequences detrimental to her own well-being as well as her own children. Coupled with an intention to separate on the applicant’s behalf, the country information referred to indicates a definite possibility of further aggression from the applicant’s husband.

22. The representative submits that if the applicant were to return to Lebanon in her current situation she will be forced to reside with her parents-in-law as she is still married under Sharia Law. As she has displayed an act of disobedience by leaving her husband, her husband’s family will mistreat her, abuse her and she will be imprisoned in their house. If she leaves the house without her husband’s permission the husband may file a cohabitation lawsuit and if she refuses to abide by that decision and refuses to return to the marital home she would be considered disobedient and consequently lose her rights to alimony, denying her the bare necessities including food clothing shelter and personal necessities common to women.

23. It is submitted the applicant will not be allowed to travel as her husband has the right to submit a travel prohibition request, filed with the court in order to prevent the other party from leaving the Lebanese territory, making escape from the abusive and harmful behaviour not only impossible but will further detriment the applicant’s well-being.

24. The representative submits that it is dictated by the law that the father has the exclusive right to travel with his minor child without the mother’s consent. The mother however is not allowed to travel with her child without the father’s consent, even if the child is in her custody. When the child turned seven years of age the father may bring the child back to Australia and the mother will have no rights to custody.

25. The written submission states the institution of divorce is detrimental in both aspects whether it is accomplished or not. If the applicant does not get a divorce she has disobeyed the ‘Bayt Al Ta’a” laws. Conversely if the applicant gets a divorce and returns to Lebanon she will have legal custody of her daughters until the age of nine. Since there is no protection afforded to her, there is a definite risk that the father’s family will kidnap her and her children, resulting from the social presses and the shame bought on the family which is attributed to divorce.

26. The submission states there are strong implications that the applicant will be subject to kidnap, torture and even death is not a far-fetched possibility. In addition to this, her children will be taken away from her and authorities will be bribed to forget about the incident. In the event the applicant remarries, the children will be taken away from her and given to the father or his family.

27. The submission states the applicant should be able to live with her daughters without constant fear of being kidnapped and tortured. She should be able to live in a society where she is able to care for her daughters and be a good mother but be able to remarry and establish a family life positively inclined to the well-being of her family.

28. The submission also addresses the complimentary protection criteria and states that in the event the applicant returns to Lebanon and is not divorced she will be imprisoned at her parents-in-laws and will not be able to leave her home nor travel. If she returns and is divorced, she will not be allowed to remarry and her daughters will be taken away from her. Additionally when her daughters turn nine years of age, custody will be given to their father.

29. The representative also provided screenshots of text messages and English translations which includes threats of harm to the applicant and the removal of her children.

30. The representative also provided a copy of an interim intervention order dated [in] September 2014 made by the Magistrates’ Court [at Town 1] noting the applicant’s husband as respondent, and an application and a summons for intervention order outlining in brief the basis for the application, stating that the applicant was seeking an intervention order against her husband, noting a previous intervention order had expired, and stating that approximately 1 week ago her husband came to her home and tried to take children without her permission. He threatened her and said that now the intervention order had expired he can do whatever he wants and told the applicant that he will come at night and take the children and will use force if he needs to. The applicant states she is very scared and worried for herself and her children and that she feels the need for protection from her husband and has been advised by police to seek the order.

31. The applicant appeared before the Tribunal on 16 June 2016 to give evidence and present arguments. The applicant told the Tribunal the second and third named applicants were with a friend and that she would be giving evidence on their behalf in her captivity as their parent. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.  

32. During the hearing the applicant told the Tribunal she feared returning to Lebanon because her husband’s family will harm her as she has separated from him and had intervention orders made against him. She is also concerned her husband may return to Lebanon and harm her and take her children from her.

33. The Tribunal has had the advantage of more evidence than was before the delegate, including the most current intervention order and threatening text messages from the applicant’s husband’s family, and for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    RELEVANT LAW

34. 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.

    Refugee criterion

35. 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).

36. 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.

37. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

38. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

39. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

40. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

41. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

1. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

2. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

3. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

   Complementary protection criterion

4. 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’).

5. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

6. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

7. 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.

   Member of the same family unit

8. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations.

   FINDINGS AND REASONS

   Nationality

9. On the basis of the consistent information provided to the Tribunal and Department about the first and second named applicants’ place of birth and citizenship of Lebanon and nationality, and the copies of their Lebanese passports provided to the Department, the Tribunal finds that the first and second named applicants are nationals of Lebanon.  The Tribunal also finds the first named applicant is the mother of the second named applicant and the third named applicant. The Tribunal accepts the third named applicant was born in Australia in [year] and that her parents were married at the time and her father is a citizen of Lebanon. Lebanese nationality is transmitted by paternity and therefore the Tribunal finds the third named applicant is a national of Lebanon[1].  

   [1] Department of Foreign Affairs and Trade Country Information Report, Lebanon 18 December 2015.

10. There is nothing in the evidence before the Tribunal to suggest that the applicants have a right to enter and reside in any country other than Lebanon.  Therefore the Tribunal finds that the applicants are not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicants are nationals of Lebanon, the Tribunal also finds that Lebanon is the applicants’ “receiving country” for the purposes of s.36(2)(aa).

11. On the evidence before it the Tribunal finds the second and third named applicant are the children of the first named applicant and were born in [year] and [year] respectively and have not turned 18, and therefore are dependent children, and that they all lived together in their family home. The Tribunal finds the second and third named applicant are members of the first named applicant’s same family unit as defined in r.1.12.

    Refugee criterion s.36(2)(a)

12. During the hearing the Tribunal spoke to the applicant about her background, family composition, relationship history and the breakdown of the relationship with her husband, the violence she has experienced, and her fears of returning to Lebanon.

13. The applicant told the Tribunal about her violent husband and the initial intervention order made by the court after a hearing, which led to him leaving the family home. The applicant told the Tribunal she has received threatening texts from his family in Lebanon because she has taken out the intervention order against her husband.   The applicant told the Tribunal after the initial intervention order ceased in 2015 her husband again tried to assault her and take the children. She told the Tribunal she obtained a second intervention order for five years. The applicant’s oral evidence was consistent with the copies of the intervention orders, and the translations of text messages submitted to the Tribunal.

14. The applicant also told the Tribunal that religious court orders have been made in Lebanon imposing a travel ban on her and a House of Obedience order requiring her to reside in the home of her husband’s parents. This oral evidence was supported by the documents provided to the Tribunal noted above.

15. Based on the evidence before it, the Tribunal accepts the applicant is a Sunni Muslim woman from a conservative Sunni community in Lebanon.

16. The Tribunal accepts the applicant husband has assaulted her in the past, and tried to assault her again when the first intervention order ceased. The Tribunal also accepts the applicant has received threatening texts from her husband’s family in Lebanon. The Tribunal accepts that a Magistrates’ Court has made orders restraining the applicant’s husband from physically assaulting or approaching the applicant, on two different occasions, once in 2013 and then again in 2015. The Tribunal also notes the most recent intervention order was made for a period of five years.  

17. The Tribunal accepts that if the applicant returns to Lebanon she would be required to live with her husband’s family given that she remains married and will be subjected to the House of Obedience order. The Tribunal finds, based on the applicant’s husband’s past conduct and the threats made by his family, that there is more than a remote or far-fetched possibility that the applicant’s husband or his family members will physically harm her upon her return to Lebanon. Therefore the Tribunal accepts there is a real chance the applicant will be harmed by her husband or his family members if she returned to Lebanon now or in the reasonably foreseeable future.

18. The Tribunal finds that the harm the applicant fears involves ‘serious harm’ as it includes significant physical harassment and significant physical ill-treatment as listed in s.91R(2), and as required by paragraph 91R(1)(b) of the Act.

19. The Tribunal has considered the representative’s submission that the applicant will be harmed by her husband or his family because of her membership of a particular social group namely “separated/divorced women”.

20. While the Tribunal accepts such a group can be characterised as a particular social group, on the evidence before it, the Tribunal does not accept the harm feared by the applicant would be for reasons of her membership of that group.

21. The Tribunal notes the applicant fears harm from her husband and his family, actions of private individuals. Persecution by private individuals or groups does not normally bring a person within the Convention. The Tribunal notes that the agent of persecution is traditionally the state or an agent of the state. However the state need not itself be the agent of the harm. It is enough that the state tolerates or condones the conduct.  

22. For example, in MIMA v Khawar the applicant claimed to have been subjected to domestic violence and denied state protection because she was a woman.[2] Although the judgments differed in their characterisations of the relevant persecution,[3] the majority[4] found that such circumstances could come within the Convention even though the harm by the private individuals was unrelated to the Convention. If the persecution was characterised as a combination of serious harm by private individuals and a failure by the state to provide protection against such harm, the Convention nexus requirement could be satisfied by the motivation of either the private individuals or the state.[5] If the persecution was characterised as the failure of the state to provide protection against non-Convention related domestic violence, then the reason for the inactivity of the state must be one or more of the Convention grounds.[6] The mere inability on the part of a state to prevent harm is not sufficient to establish a refugee nexus.  Rather, it must be shown that the failure on the part of the state or state agents to prevent the relevant conduct is the result of toleration or condonation of the conduct, not simply inability to prevent it.[7]

    [2]                  MIMA v Khawar (2002) 210 CLR 1.

    [3]                  MIMA v Khawar (2002) 210 CLR 1 at [30] per Gleeson CJ, at [118] per Kirby J, and at [85] McHugh and Gummow JJ.

    [4]               Gleeson CJ and McHugh, Gummow and Kirby JJ; Callinan J dissenting.

    [5]         MIMA v Khawar (2002) 210 CLR 1 at [31] per Gleeson CJ, and at [120] per Kirby J.

    [6]                  MIMA v Khawar (2002) 210 CLR 1 at [84] and [87], per McHugh and Gummow JJ.

    [7]         MIAC v SZONJ (2011) 194 FCR 1 at [31]-[32].

23. The DFAT Country Information Report states:

    Women

    3.66 Lebanon has acceded to the Convention on the Elimination of All Forms of Discrimination Against Women, with a reservation on women’s choice of family name. Despite this, women in Lebanon continue to suffer significant societal and official discrimination and violence and DFAT contacts suggest that women face one of the highest risks of discrimination and violence of all groups in Lebanon.

    3.67 Laws relating to nationality and citizenship discriminate against women. Lebanese women are unable to confer nationality on either their (non-Lebanese) spouses or children, which can prevent their spouses and children from accessing education, healthcare and residency. Laws also impose constraints on the assets of wives whose spouses are declared bankrupt and Lebanese men can request that authorities issue a hold departure, preventing their wives from being able to leave Lebanon.

    3.68 Many of Lebanon’s religiously-administered personal status laws also discriminate against women. For example, women are often discriminated against in relation to child custody arrangements, while Sunni inheritance laws provide a son with twice the inheritance of a daughter.

    3.69 Women are generally able to participate in electoral processes, though, unlike men, they are required to show proof of primary education to enrol to vote. Only 3.1 per cent of Lebanese parliamentarians are women, well below regional and world averages. Although DFAT is unaware of any formal statistics on women’s economic empowerment within Lebanon, anecdotal evidence from DFAT contacts suggests that women’s ability to find employment is less than that of men.

    3.70 Although no official prevalence studies exist, DFAT understands that violence against women is widespread in Lebanon. In April 2014, the Law on the Protection of Women and Family Members from Domestic Violence was passed. Critics have argued that the new legislation defines domestic violence too narrowly and does not specifically criminalise marital rape; has inadequate provisions for the issuance of restraining orders; and preferences the religiously-administered personal status and family laws which often discriminate against women. DFAT has been told that cases of violence against women are sometimes treated as social rather than criminal matters and that charges of rape have been dropped if a victim agrees to marry the perpetrator. DFAT contacts have indicated that Palestinian and Syrian refugees are particularly vulnerable, with high rates of violence against women in refugee communities.

    3.71 DFAT has been told of cases of early and forced marriage, including a 16 year old who was forcefully married and moved to Turkey where she was forced into prostitution. While contacts have said that no particular groups are more susceptible to early and forced marriage, DFAT understands that a Shi’a girl can be married from the age of 9 and a Sunni girl from the age of 12.

    3.72 DFAT understands that female genital mutilation is not prevalent in Lebanon.

    3.73 Overall, DFAT assesses that women in Lebanon face a high risk of societal and official discrimination and violence. In practice, DFAT understands that the risk to women is most acute in relation to violence.

24. The Tribunal notes this country information indicates the laws in Lebanon discriminate against women, and while the Tribunal accepts the Law on the Protection of Women and Family Members from Domestic Violence was passed in April 2014, the Tribunal also notes critics have argued that the new legislation defines domestic violence too narrowly and does not specifically criminalise marital rape, and has inadequate provisions for the issuance of restraining orders. The laws preferences the religiously-administered personal status and family laws which often discriminate against women.    

25. The country information indicates women face one of the highest risks of discrimination and violence of all groups in Lebanon and that the risk to women is most acute in relation to violence, and that cases of violence against women are sometimes treated as social rather than criminal matters.

26. As noted above, the Tribunal accepts there is a real chance the applicant will be harmed by her husband or his family members if she returned to Lebanon. Based on the country information noted above, the Tribunal also accepts the state tolerates or condones violence against women, and the Tribunal accepts the state will fail to provide protection to the applicant against violence from her husband or his family because she is a married woman.

27. The Tribunal accepts the applicant has a well-founded fear that she will suffer serious harm from her husband and his family and that the state will fail to protect her. Therefore the Tribunal accepts the applicant has a well-founded fear of persecution.

28. The Tribunal accepts that the essential and significant reason for the state’s toleration or condonation of the harm inflicted by the applicant’s husband or his family is her membership of the particular social group “married women in Lebanon” as required by paragraph 91R(1)(a) of the Act. The Tribunal accepts that ‘married women in Lebanon’ is a particular social group, as this group is identifiable by a characteristic or attribute common to all members of the group, and the characteristic or attribute common to all members of the group is not a shared fear of persecution, and the possession of that characteristic or attribute distinguishes the group from society at large. The Tribunal also finds that the harm the applicant fears involves ‘serious harm’ as it includes official discrimination and violence and amounts to significant physical harassment and significant physical ill-treatment as listed in s.91R(2), and as required by paragraph 91R(1)(b) of the Act. The Tribunal also finds that the persecution which the applicant fears is not random and involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c).

29. The Tribunal has considered whether it would be reasonable for the applicant to relocate in order to avoid the risk of persecution. As noted above, the Tribunal accepts the applicant will be required to live with her husband’s family, and therefore relocation is not reasonable in the circumstances.

30. On the evidence before it, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

31. The Tribunal also finds the second and third named applicants are members of the first named applicant’s family unit, and therefore the second and third named applicants satisfy s.36(2)(b)(i).

    DECISION

32. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Chris Thwaites
    Member  18 August 2016