1418617 (Refugee)

[2016] AATA 3658

1418617 (Refugee) [2016] AATA 3658 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418617

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Susan Pinto

DATE:21 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2016 at 11:58am

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. The applicant is a citizen of Lebanon. She was born in Australia on [date]. Her parents and an elder sister, who is approximately [age] years old, are residing in Australia. The applicant’s parents are also citizens of Lebanon. They arrived in Australia on [temporary] visas in October 2010 when their first daughter was a young baby. They returned to Lebanon [in] March 2012 and arrived back in Australia [in] May 2012. [In] May 2012 they lodged Protection visa applications on the basis of the applicant’s father’s claimed conversion to Christianity. The applications were refused by the Department of Immigration and the decisions to refuse the applications were affirmed by the Refugee Review Tribunal (differently constituted). 

2. The applicant applied to the Department of Immigration for the Protection visa [in] June 2014. The delegate of the Minister for Immigration refused to grant the Protection visa [in] November 2014. The applicant’s parents claimed on her behalf that the applicant would be subject to Female Genital Mutilation (FGM) if she returned to Lebanon. The delegate did not accept that there was any evidence she would face FGM if she returned to Lebanon. The delegate referred to significant credibility problems and inconsistencies in evidence between the applicant’s application and her father’s application for protection. 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).

3. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in Lebanon for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Lebanon, there is a real risk that she will suffer significant harm. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Lebanon that there is a real risk that she will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

4. When lodging the application to the Department, the applicant’s parents indicated that the applicant is a citizen of Lebanon who was born in Sydney, Australia on [date]. The applicant’s religion was given as Muslim.

5. In response to questions as what is feared will happen if the applicant returns to Lebanon, it is stated that the applicant and her family are members of a very strict Sunni Muslim family who practise a very strict form of Islam. The applicant’s parents fear that she will be severely or significantly harmed as a result of forced female circumcision. The applicant’s grandparents are aware of her father’s interest in Christianity and for that reason they will be determined to subject the applicant to these rituals. They also fear that the applicant’s grandparents will seek custody of their children on the basis of her father’s interest in Christianity. The authorities do not intervene in family or religious matters and there is no civil jurisdiction dealing with family matters. Accordingly, they will be subject to religious court jurisdiction.

6. The applicant’s father attended an interview with the delegate [in] October 2014. The Tribunal has listened to the CD Rom recording of the interview.

   Application for review

7. When lodging the application to the Tribunal, a copy of the delegate’s decision record was provided.

8. In a statutory declaration, dated 25 February 2016, the applicant’s father states that he is the father of the applicant and he applied for protection on behalf of his daughter when she was a newborn baby. He states that he had previously applied for protection on the basis that he converted to Christianity, but that application was refused and the primary decision was affirmed by the Refugee Review Tribunal. He states that neither the Department nor the Tribunal accepted that his conversion to Christianity is genuine. He states that he was formally baptised [in] April 2012 and despite the adverse findings he considers himself a Christian convert and very much interested in Christianity. He states that his baptism became known to his parents and in laws who were “greatly infuriated” and he was physically attacked by his [various relatives] who inflicted injuries on him. The applicant also states that he submitted a copy of his formal baptism certificate and translation and photographs of his baptism. He states that his wife has chosen not to follow this path and she remains a Muslim, mainly due to fear of what may happen to her should she also convert. The applicant’s father states that his interest in Christianity arose due to the influence of his [relative 1] who is a Christian. He spent a lot of time with his [relative 1] and she secretly taught him about the Christian faith. His [other relative] is also a Christian. His father is now a devout Muslim but prior to the applicant’s father’s conversion he “was not so strict”. His mother has always been a devout Muslim and she did not get along with her Christian [relatives].

9. The applicant’s father states that he was physically attacked whilst he was in Lebanon and many of his friends and relatives are aware that he has converted to Christianity. The applicant’s father states that he is still hoping his wife will consent to him baptising his [children], but at this stage she has not provided her consent because she fears for their safety if they return to Lebanon. She has promised that if they are allowed to stay in Australia she will consent to their baptism. He is keen to raise his [children] as Christians and he does not want them to have anything to do with the Muslim religion. His formal baptism and attitude towards Islam has greatly infuriated his parents and in laws. They have threatened to harm him and his wife should they return to Lebanon because they consider that his conversion has brought a grave dishonour upon them. He states that he is at risk of being physically assaulted or killed. Furthermore, his parents and in laws have threatened to start proceedings in the Islamic Sharia Court for full custody of his children because they want to prevent the children from being raised by Christian parents. The Sharia courts will likely grant full custody of his children to their grandparents. The applicant has sought legal advice which confirms that he will be unable to retain custody of his children if they are petitioned by the Muslim grandparents. The applicant’s father also fears that whilst in the custody of their grandparents they will be subject to female circumcision to “mark my children as Muslims”. His parents and in laws have become very fundamentalist and reacted aggressively towards his baptism which they view as the “ultimate betrayal”. They have threatened revenge and will likely carry out their vindictive actions by depriving the children of their natural parents as well as inflicting horrendous physical mutilation.

10. The applicant’s father refers to his own Protection visa application and states that at that time he was advised by [his first adviser] who is not a registered migration agent and he did not follow instructions in relation to the claims. The applicant’s father states that regardless of the findings in his own application, the fact that he has been formally baptised in Lebanon cannot be disputed and his parents in law’s hostile reaction is likely given the fact that Lebanese people are fiercely opposed to apostates. The applicant’s father asks that his children be protected and states that if he had received proper legal advice at the time of his Protection visa application his claims would have been fully explored. He states that cases where grandparents have sought to take custody of children on the basis of religious apostasy in Islamic Sharia courts are not uncommon and the Islamic Sharia courts are most sympathetic to Muslim applicants in such proceedings.

11. A further submission was received on 10 March 2016. In the submission, the representative submits that the applicant’s parents fear that she will be subjected to severe physical harm and deprived of her right to be raised by her natural parents if they return to Lebanon. It is submitted that the father of the children, although born a Sunni Muslim, embraced Christianity and during his recent visit to Lebanon he was baptised. It is submitted that the applicant’s parents fear she will be forcibly circumcised and the grandparents will petition the courts to obtain custody of the children and force them to undergo Female Genital Mutilation. The representative provided a copy of the applicant’s father’s baptism certificate indicating he was baptised [in] April 2012 in Lebanon. An article on Islamic Custody Law was also provided.

12. The applicant’s parents appeared before the Tribunal on 11 March 2016 to give evidence and present arguments. The applicant’s parents confirmed that they were giving evidence on behalf of the applicant as she is only a young child and unable to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by her registered migration agent.

13. Following the Tribunal hearing, the applicant’s representative provided a further submission to the Tribunal. The representative submits that the applicant’s father and her sister have been officially recognised as Christian and this would be the catalyst for the adverse attention. It is submitted that the central issue before the Tribunal is what the family/relatives reaction towards the applicant’s father and sister would be as opposed to solely making a finding as to the legitimacy of the applicant’s father’s conversion. A copy of the registration of the applicant’s father and her sister as Greek Orthodox was provided. The document was issued [in] April 2012.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution for one of five Convention reasons?

14. The Tribunal must consider whether the applicant has a well founded fear of persecution for a Convention reason. Having considered all of the evidence, the Tribunal does not accept any of the claims for protection made on the applicant’s behalf. The Tribunal does not accept that the applicant’s parents are truthful witnesses and considers it evident that all of the claims have been fabricated following the refusal of the applicant’s parents and sister’s own application for protection, in which the applicant’s father claimed to have converted to Christianity which would result in him being harmed upon his return. The Tribunal does not accept that the applicant will be taken from her by family members in Lebanon due to the applicant’s father’s conversion or that she will be forcibly subject to Female Genital Mutilation. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

15. At the Department interview, the applicant’s father stated that he fears that his parents, who are strict Muslims, will take his [children] and circumcise them. When asked whether he maintains contact with his family, the applicant stated that he does not but they will take his children away from him and subject them to the procedure.  The applicant’s father stated that he fears his father will take his daughter away from him and use Islamic law to obtain custody. When advised by the delegate that in the previous application he had told the RRT that his father does not practise Islam, the applicant’s father stated that “there is a big difference now”. His mother passed away and his father married a lady who is an extremist. When advised that he had not included any claims that he feared for the safety of his [elder daughter] when he made the previous application, the applicant’s father stated that it was not taken into account. In response to the delegate’s queries as to why he took his [elder daughter] back to Lebanon if he feared she would be subjected to FGM, he stated that it was because she was only [a baby] and it is not carried out until girls are between the age of 3 and a half years to 10 years of age. The applicant’s father was advised that there are no reports of it being practised in Lebanon, to which he responded that every sect has its own courts and they are free to practise FGM.

16. At the Tribunal hearing, the applicant’s father stated that he fears his parents will take custody of his [children] through the Islamic courts and will require them to undergo Female Genital Mutilation. When asked whether his wife has undergone the procedure relating to FGM, the applicant’s father stated that she undertook it but he does not know exactly when. The applicant’s father was asked whether his wife has ever informed a medical practitioner in Australia that she had undergone this procedure, particularly given that she gave birth in Australia. The applicant’s father stated that he does not think there are any medical records in relation to this issue. The Tribunal asked the applicant’s father why he believes his family will try to take his daughter away from him and subject her to Female Genital Mutilation. When advised that the delegate’s decision record indicates that he had told the RRT as previously constituted that his father is not very religious, the applicant’s father stated that his mother passed away and his father married a “very strict lady” who will want to obtain custody of the children and force them to undergo FGM. When asked how he knows this, given that he has not had contact with the family since he left Lebanon in 2013, the applicant’s father stated that he heard it from people in the village. The Tribunal queried why his father’s new wife, who has no familial relationship with his children apart from through her marriage to his father, will want to obtain custody of his children and force them to undergo circumcision. The applicant’s father stated that it is the tradition that this should happen and she will require it.

17. The Tribunal advised the applicant’s father and her mother that that the subject of FGM is monitored very closely by various human rights groups and women’s groups, some of which have been set up solely for the purpose of monitoring the prevalence of FGM in particular countries, and they have not reported that FGM occurs in Lebanon. The Tribunal advised the applicant’s father that it would consider that if this was occurring in Lebanon it would be reported because medical practitioners would at some point become aware that the procedure had been undertaken on girls when they undergo examinations during pregnancy or for other purposes, particularly given its association with adverse health consequences. The Tribunal expressed its doubts that this would not be reported if it was occurring. The applicant’s father stated that it is not widespread, but it is the culture in his family. The applicant’s father also stated that female members of his family have undergone FGM.

18. The Tribunal asked the applicant’s father why he had not made claims that his eldest daughter would be subject to FGM when he made the first application. The applicant’s father indicated that it did not “come to my mind”, but later indicated that he was confused by the Tribunal’s question. The Tribunal attempted to explain this issue a number of times and eventually reminded the applicant’s father that his representative had submitted that [his first adviser], who is not a registered migration agent, represented him in the first application and this affected his initial application. The Tribunal agreed that [this adviser] is not a registered migration agent and should not be representing people, but advised the applicant’s father that he had given oral evidence on two occasions about his claims and had not raised the issue of FGM even though his eldest daughter was included in the first application. The applicant’s father stated that his daughter was not old enough at that time to be subject to the procedure as it is undertaken when the girls are over about three and a half years of age. He also stated that he was willing to return to Lebanon with his daughter because at that time she had not reached the age at which she would be forced to undergo FGM.

19. The applicant’s mother told the Tribunal that she has been subject to FGM, as have other members of her family. The applicant’s mother stated that she believes that the procedure was undertaken when she was about five years of age. She stated that she has not told any doctors in Australia about this procedure and she has no medical records. She stated that she did not believe there was any reason to tell any doctors about this and when she gave birth in Australia she unexpectedly delivered the baby at home. When she went to hospital following the delivery she had some stitches but there was no need to tell anyone she had undergone FGM.

20. The applicant’s father stated that his and his eldest daughter’s religion is Orthodox and his younger daughter is Muslim. When asked why he considers his younger daughter is Muslim but his older daughter to be Christian, the applicant’s father stated that he has registered his oldest daughter in Lebanon as a Christian. When asked whether she has been baptised, the applicant’s father stated that she has not yet been baptised because his wife will not allow it. When asked how he was able to convince his wife to allow [their elder daughter] to be registered as a Christian but not allow her to baptised, the applicant’s father stated that he is currently trying to talk his wife into allowing her to be baptised. When asked what church he normally attends in Australia, the applicant’s father states that he goes to church in [Suburb 1] or [Suburb 2] and he attends about once per month, but he is unable to remember the name of either of the churches. Nor is he able to recall the name of the priests at the church. When asked why he returned to Lebanon to be baptised rather than undergoing baptism in Australia where he had lived for some time, particularly given that he claimed his family was opposed to it, the applicant’s father stated that he made a decision to be baptised in Lebanon and he wanted to be registered as Orthodox in Lebanon. When asked why anyone would think that he is a Christian, given that his wife is clearly a practising Muslim by the manner of her dress, the applicant’s father stated that he has registered as a Christian and his family will try to take custody of his children.

21. The Tribunal has considered the claims set out above. The Tribunal does not accept any of the applicant’s parents’ claims made on behalf of their daughter. As stated above, the Tribunal does not accept that they are credible witnesses. The Tribunal is drawn to the conclusion that the claims that the applicant will be forcibly taken by her grandparents due to her father’s conversion to Christianity and then subject to FGM have been manufactured in an attempt to provide a basis for remaining in Australia following the failure of the previous application. In this regard, the Tribunal firstly does not accept that the applicant’s claims are consistent with the independent evidence. The Tribunal acknowledges that FGM is often conducted in an environment of secrecy. However, as discussed during the hearing, the subject of FGM is closely monitored by human rights groups and women’s groups who view the procedure as a fundamental denial of a woman’s rights which can have significant adverse medical consequences.[1] The information also indicates that this procedure is generally associated with tribal groups and is prevalent in African countries and the religion of the perpetrators is often irrelevant. The Department of Foreign Affairs Country report on Lebanon from December 2015 Country Report on Lebanon states that Female Genital Mutilation is not prevalent in Lebanon.[2] The Lebanon Human Rights report similarly states that “there were no reports of prevalent or widespread FGM/C in Lebanon”.[3] Similarly, the Organisation for Economic Co-operation and Development (OECD) has stated that FGM is not practised in Lebanon.[4] A report by UNICEF, ‘Female Genital Mutilation/Cutting: A Global Concern’ from 2016 states that at least 200 million girls in 30 countries have been subjected to the practise. It states that the practice of FGM/C is highly concentrated in a swath of countries from the Atlantic Coast to the Horn of Africa, in areas of the Middle East such as Iraq and Yemen and in some countries in Asia like Indonesia and Malaysia, as well as in countries which have taken migrants from these countries such as Australia, pockets of Europe and North America. It also states that it exists in some places in South America such as Colombia and in India, Oman and Saudi Arabia and the United Arab Emirates. The report does not refer to the practise being undertaken in Lebanon.[5]

    [1] The World Health Organisation (WHO) states that procedures can cause severe bleeding, problems urinating, cysts, infections, complications in child birth and increased risk of newborn deaths and HIV infection. The WHO has stated that it is a violation of the human rights of girls and women – see

    [2]  Department of Foreign Affairs and Trade 2015, Country Information Report: Lebanon, 18 December, paragraph 3.72.

    [3] Lebanon Human Rights Report, 2014.

    [4] The OECD Gender, Institutions and Development Data Base, 1 January 2013.

    [5] See 2016.

1. In addition to the fact that the independent evidence does not support the applicant’s claims, the Tribunal considers that there are other significant problems in relation to the applicant’s father’s claims to fear harm for his daughter. The Tribunal accepts that the applicant was initially assisted by [his first adviser], who is not a registered migration agent. However, the applicant’s father gave oral evidence to both the Department and the Tribunal in his own application for protection in which his wife and [elder daughter] were included, yet he did not claim that she would be subject to FGM upon her return to Lebanon. The applicant’s father’s eldest daughter was approximately [age] years of age at the time the application was lodged and almost a year older when a review of the delegate’s decision refusing to grant the Protection visas was lodged with the RRT. The Tribunal does not accept the applicant’s father’s explanation as to why claims relating to FGM were not raised in the previous application. The Tribunal considers that had the applicant’s parents had any fear at all for their elder daughter or concern that she would at some time be subject to FGM that they would have made claims in relation to this matter. In the Tribunal’s view, the applicant’s parents’ failure to raise this issue in their own application for protection is indicative of the fact that they have manufactured this claim following the refusal of that application.   

2. Furthermore, the Tribunal considers that the applicant’s father’s evidence in relation to his knowledge that his parents will obtain custody of his [children] and then subject them to FGM to be vague and unpersuasive. As indicated above, although the applicant’s father had previously told the RRT that his father is not religious he has since claimed that his mother died and his father remarried and has become religious. The Tribunal considers it unlikely that in such a short space of time that his father, who was previously not religious, has married a fanatical woman who is able to exert such a level of control that she would be in a position to subject her husband’s grandchildren, with whom she has no biological relationship, to FGM. The Tribunal also considers that his evidence as to how he knows his parents will want to obtain custody of his children and subject them to FGM to be vague and unpersuasive and indicative of the fact that these claims have been manufactured.

3. Additionally, although the Tribunal accepts that the applicant’s father registered himself and his eldest daughter as Christians when they returned to Lebanon, the Tribunal does not accept that he did so for any other reason than to fabricate claims in his previous application. As discussed during the hearing, the evidence set out in the delegate’s decision record indicates that despite having been a [temporary resident] in Australia for some time the applicant’s father chose to return to Lebanon to be baptised where he has claimed he would be viewed as an apostate and subject to possible harm from his family members who opposed the conversion. The Tribunal considers that had the applicant’s father been genuinely interested in Christianity as a result of a purported long standing interest in it that he would have made attempts to convert to Christianity in Australia, rather than waiting until he returned to Lebanon to do so. In the Tribunal’s view, the applicant’s father’s explanation for returning to Lebanon and undergoing baptism and registering his conversion to Greek Orthodox is not credible. The Tribunal accepts the documents provided, but the Tribunal does not accept that the applicant’s father was baptised or registered his conversion for any other reason than to obtain documentation to support claims for protection upon his return to Australia. Furthermore, despite having claimed to have converted in 2012 and to have been a committed Christian since that time, the Tribunal found the applicant’s father’s evidence in relation to his practise of Christianity in Australia to be unpersuasive and indicative of the fact that he has not genuinely converted and his conversion is “in name” only. Thus, although the applicant’s mother knew the name of the church the applicant’s father purportedly attends in Australia, the applicant’s father did not know the names of either of the churches he attends or the name of the priests at the churches. In the Tribunal’s view, this is indicative of the fact that the applicant’s father has manufactured his claims to have genuinely converted to Christianity and to be a practising Christian.

4. The Tribunal also considers that the applicant’s father’s evidence as to why he has not baptised his eldest daughter, yet registered her as a Christian, to be similarly unpersuasive. The Tribunal has not accepted the applicant’s father’s evidence as to FGM and considers that his claims in relation to Christianity and attempts by his family or his wife’s family to gain custody of the children due to his conversion have also been fabricated. The Tribunal does not accept that the fact that he was baptised and registered himself and his eldest daughter as Christians establishes that they will be viewed as Christians. The Tribunal considers that the applicant’s father and her mother, who wore a head scarf to the hearing and is shown in her passport photograph wearing a headscarf, will be viewed as a Sunni Muslim and the family will continue to be viewed as Sunni Muslims upon their return. The Tribunal accepts that their families undoubtedly know about the conversion, but does not accept the submission that they will be viewed as Christians or apostates by their families. In the Tribunal’s view, the applicant’s parents family members are undoubtedly aware that the applicant’s father and the applicant’s sister are not genuine converts and their conversions were registered for the purposes of making false claims for protection in Australia. The Tribunal also does not accept that anyone in their community will know about the conversion or that if even if they do they will consider that the applicant’s father and family members have genuinely converted to Christianity. The Tribunal does not accept that the applicant or her family members will be perceived as Christians by family or the community or that they will be harmed due to the applicant’s father registering his and [his elder daughter’s] religion as Orthodox or as a result of her father’s baptism in Lebanon in 2012.

5. Thus, having considered all of the evidence the Tribunal does not accept any of the applicant’s parents’ claims or their fears on behalf of their young [children]. The Tribunal does not accept that any family members will attempt to secure custody of the applicant and her elder sister through Sharia courts or they will be raised by people who are not their natural parents. Nor does the Tribunal accept that the applicant or her elder sister will subject to FGM. The Tribunal does not accept, given the significant credibility problems, that the applicant’s mother or other female relatives have been subject to FGM or that the applicant’s father was physically assaulted due to his conversion when the family returned to Lebanon. The Tribunal also does not accept that any family members of the applicant’s father and his wife are Christian or that the children will be raised as Christian or that the applicant’s father opposes the Muslim religion and wants “nothing to do with it”. The Tribunal does not accept that the applicant’s mother wants to convert to Christianity and has not done so due to her fear of harm. The Tribunal considers she has not done so because her religion is Muslim; she is committed to that religion and has no intention of changing her religion. The Tribunal also does not accept that the applicant or her sister will suffer harm as a result of their father’s baptism and registration of the elder child and himself as Christian. The Tribunal has found above that the conversion and baptism is in name only and the applicant’s father is not a genuine convert and will not be viewed as an apostate as he has claimed. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm upon her return to Lebanon for reasons of her religion, membership of a particular social group or for any other Convention reason. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention reason if she returns to Lebanon now or in the reasonably foreseeable future.

   Are there substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon that there is a real risk she will suffer significant harm?

6. The Tribunal has not accepted that the applicant will be taken from her parents through the Sharia courts due to her father’s purported conversion to Christianity. The Tribunal has accepted the registration and baptism of the applicant’s father and the registration of his daughter as Christian, but does not accept this establishes that the applicant’s father is a genuine covert or that he or other family members will be viewed as such or harmed as a result of his conversion and baptism. The Tribunal has found that this was done for the purpose of his application in which his wife and eldest daughter were included, and when this failed he has manufactured claims that the applicant will be taken from the family and subject to FGM by family members who oppose the conversion. The Tribunal has also not accepted that the applicant or her sister will be subject to FGM or any of their claims relating to the children being taken from their parents and denied the ability to live with their parents. Thus, for the same reasons as those set out above, the Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon that there is a real risk that the applicant will suffer arbitrary deprivation of life, torture, the death penalty, cruel or inhuman treatment or punishment or degrading treatment or punishment. 

   CONCLUSIONS

7. 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).

8. 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).

9. 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).

   DECISION

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

    Susan Pinto
    Member

    
    

    ATTACHMENT A - RELEVANT LAW

11. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for

    by the applicant.’

    Refugee criterion

12. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

13. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

14. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

15. The complementary protection criterion is set out in paragraph 36(2)(aa) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.