1419384 (Refugee)
[2016] AATA 3543
•7 March 2016
1419384 (Refugee) [2016] AATA 3543 (7 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1419384
COUNTRY OF REFERENCE: Lebanon
MEMBER:Meena Sripathy
DATE:7 March 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 March 2016 at 1:34pm
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
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).
The applicant who claims to be a citizen of Lebanon, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] November 2014.
The issues in this review are whether the applicant has a well-founded fear of persecution in the country of his nationality 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 his being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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
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).
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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’).
‘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.
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
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
Information contained in the application form indicates the applicant is [an age] year old unmarried man from [his home town], Lebanon. He indicates his citizenship is Lebanese, and religion is Moslem. He indicated he has parents [and siblings] in Lebanon.
In response to the reasons for why he left his country, he indicated that he came to Australia to marry an Australian citizen, but the relationship did not work out.
The following claims were made in the application:
·The applicant fears he will be harmed if he expresses his political views which are vehemently opposed to Hezbollah and their involvement in the Syrian conflict.
·He has been threatened in the past by Hezbollah supporters.
·He fears he will have to completely curtail and/or modify his political views to evade adverse attention from Hezbollah and their supporters.
·He fears harm from Hezbollah and their Lebanese allies.
·He is a March 14 supporter and has in the past expressed his political views which are opposed to Hezbollah’s involvement in the Syrian conflict.
·The Lebanese authorities are powerless to protect him against Hezbollah and their allies in Lebanon, because Hezbollah and their allies are more potent than the Lebanese security forces.
·The applicant indicates a detailed statement will be submitted in due course.
The applicant submitted a certified copy of his passport with the application.
[In] October 2014 the applicant requested the Department to make a decision on his application on the papers.
Evidence before the Tribunal
On 1 February 2016 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 10 am on 7 March 2016. On 1 February 2016 the applicant provided a Response to Hearing Invitation indicating he would attend the hearing, however on 1 March 2016, the Tribunal received a request from the applicant that the Tribunal proceed to make a decision on the papers. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. This matter has therefore been determined on the evidence available to the Tribunal.
FINDINGS AND REASONS
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Based on a copy of the applicant’s passport provided with the visa application, and in the absence of any other evidence that contradicts his claimed nationality, the Tribunal accepts that the applicant is a citizen of Lebanon and assesses his claims against Lebanon.
The applicant claims in his application that he is a March 14 supporter and has in the past expressed his political views which are opposed to Hezbollah’s involvement in the Syrian conflict. He claims he has been threatened in the past by Hezbollah supporters. He indicated that a detailed statement would be submitted in due course. No further statement, information or evidence has been provided to the Department or Tribunal. The Tribunal notes the applicant did not attend an interview before the Department to discuss his claims, and that he requested that a decision be made on the papers. He has provided no further information or evidence to the Tribunal. He declined a hearing and requested a decision be made on the papers.
On the evidence before it, which includes the information contained in the application form, referred to above, Tribunal considers there is insufficient detail to establish whether the applicant is a supporter of any political party, or whether he holds, or has expressed, any political views opposed to Hezbollah or anyone else. It is unable to establish whether he was threatened in the past by Hezbollah or their supporters, on the limited information provided in his application. His failure to attend a hearing means the Tribunal has not been able to explore, or test further his claims with him. The Tribunal has also taken into consideration country information prepared by the Department of Foreign Affairs and Trade.[1] Having regard to the evidence before it, the Tribunal is not satisfied that the applicant suffered persecution for a Convention reason in the past or that he faces a real chance of persecution for a Convention reason in the future.
[1] DFAT Country Information Report Lebanon 18 December 2015
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are 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 the applicant will suffer significant harm.
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Meena Sripathy
Member
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0
5
0