1504584 (Refugee) - [2017] AATA 650

1504584 (Refugee) [2017] AATA 650 (4 April 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1504584
COUNTRY OF REFERENCE: Stateless
Palestinian Territories (West Bank)

MEMBER:James Silva
DATE:4 April 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 04 April 2017 at 3:35pm

CATCHWORDS
Refugee – Protection visa – Stateless – Palestinian Territories (West Bank) – Social group – Association with Israelis – Political opinion – Forced recruitment by Palestinian militants – Suspected as Israeli collaborator – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91R, 438, 499
Migration Regulations 1994, Schedule 2
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

The applicant is a man in his [age], an ethnic Palestinian from [Town 1], in the West Bank, Palestinian Territories.[1]
[1] The terms ‘Occupied Territories’ and ‘Occupied Palestinian Territories’ appear in various submissions and resource materials. It refers to Palestinian Territories and ‘OPT’ in this decision.
The applicant arrived in Australia [in] September 2014, as the holder of a [temporary] visa. He applied for a Protection visa [in] November 2014. He attended a Department interview [in] February 2015.
[In] March 2015, the delegate refused the application pursuant to s.65 of the Act.
This is an application for review of that decision. The applicant appeared before the Tribunal on 14 February 2017.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is at Attachment A.
CLAIMS AND EVIDENCE
Claims
The applicant claims to fear harm from Palestinian militants. He claims that in mid-2014, unknown militants tried to forcibly recruit him to their terrorist cause, which he refused. He claims that pursued him, threatening to accuse him of being an Israeli collaborator. He fears that they will harm or kill him if he returns to the West Bank; and that they could also pursue him if he goes to [Country 1].
The applicant claims that his long-term employment in an Israeli settlement triggered their interest. He claims that this, together with his rejection of the militants’ approach, and his opposition more generally to the Palestinian uprising, make him a target for Palestinian militants. He could also be of interest to the security forces of the Palestinian Authority or Israel.
Background
The applicant is a [age] year old man from [Town 1], in the West Bank, Palestinian Territories (OPT). He is an ethnic Palestinian, whose languages are Arabic and English. He is a Sunni Muslim.
The applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1504584 (Refugee)

Details

AGLC: 1504584 (Refugee) [2017] AATA 650
Case: [2017] AATA 650
Decision Date: 4 April 2017

CaseChat Overview and Summary

The applicant, a Palestinian man from the West Bank, sought a protection visa, claiming a well-founded fear of persecution from Palestinian militants. His fear stemmed from his refusal to join their cause and his perceived association with Israelis due to his long-term employment in an Israeli settlement. He also feared potential interest from Palestinian Authority or Israeli security forces. The case was heard by James Silva.

The primary legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2) of the Migration Act 1958 (Cth), specifically the "refugee criterion" as defined by the 1951 Refugee Convention and its 1967 Protocol, or alternatively, the "complementary protection criterion." This involved assessing the applicant's fear of persecution, the Convention reasons for that fear, and whether the fear was well-founded and objectively real.

The court affirmed the decision not to grant the applicant a protection visa. It found that the applicant did not satisfy the criterion in section 36(2) of the Act, as there was no suggestion he met the requirements for refugee status or complementary protection. The decision implies that the applicant's claims, as presented, did not establish a well-founded fear of persecution for a Convention reason, nor did they meet the threshold for complementary protection.

Orders

Orders of the court

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Background

Background to the litigation

The applicant claims that his long-term employment in an Israeli settlement triggered their interest. He claims that this, together with his rejection of the militants’ approach, and his opposition more generally to the Palestinian uprising, make him a target for Palestinian militants. He could also be of interest to the security forces of the Palestinian Authority or Israel.Background The applicant is a [age] year old man from [Town 1], in the West Bank, Palestinian Territories (OPT). He is an ethnic Palestinian, whose languages are Arabic and English. He is a Sunni Muslim. The applicant lived at one address in [Town 1], up to the time of his departure for Australia. He attended school up to Year [number], and then did vocational training. In his protection visa application, he stated that he did this training at a private, [foreign]-funded college. The applicant also undertook further studies from October 2011 to October 2013, while he was working in an Israeli settlement. This was a [length] year [course] at [a certain college] in [town]. From early 1998, the applicant worked in an Israeli settlement in the West Bank, at [Location 1], which is [south] of [Town 1]. He told the Tribunal that the [settlement] hosts a wide range of [activities] but it has now expanded to include [other services]. The applicant worked in [an establishment] on the [settlement] for several years. At the hearing, he said that he initially worked in [role], then as a supervisor for [that role], and later [in another area]. From 2005 until his departure in July 2014, he was ‘[an occupation]’ at [a] Centre. Of relevance to his protection claims, the applicant stated that he had good access to these Israeli-owned facilities, and held a trusted position. The applicant is unmarried. His widowed mother lives in [Town 1] He has [siblings]. [One sibling] used to work in [location] in or near [village][2], but he recently took over the applicant’s job as [occupation] at [Location 1]. [Another sibling] is an [occupation], and is currently working for a company in [Town 1]. The applicant’s [other siblings] are married. [Details deleted].[2] The applicant described this as being part of Israel, but it appears to be part of the Jerusalem Governate of the West Bank. The applicant said that his mother holds a [Country 1] national ID card, and has a green card to live in the West Bank. She was born in Palestine, but lived for some time with her family in [Country 1]. The applicant said that he has some [relatives] in [Country 1]. He initially said that he has visited that country just twice. On the first visit, he travelled there on his mother’s ID document, as he was [age]. The second visit was en route to [an] Airport to depart for Australia. In later evidence, however, he stated that he used to visit his [relatives] in [Country 1] whenever the family was travelling to [a city in Country 1] (thereby suggesting that he had, indeed, entered [Country 1] on multiple occasions).

Evidence

Evidence Before The Court

The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is at Attachment A.CLAIMS AND EVIDENCEClaims The applicant claims to fear harm from Palestinian militants. He claims that in mid-2014, unknown militants tried to forcibly recruit him to their terrorist cause, which he refused. He claims that pursued him, threatening to accuse him of being an Israeli collaborator. He fears that they will harm or kill him if he returns to the West Bank; and that they could also pursue him if he goes to [Country 1]. The applicant claims that his long-term employment in an Israeli settlement triggered their interest. He claims that this, together with his rejection of the militants’ approach, and his opposition more generally to the Palestinian uprising, make him a target for Palestinian militants. He could also be of interest to the security forces of the Palestinian Authority or Israel.Background The applicant is a [age] year old man from [Town 1], in the West Bank, Palestinian Territories (OPT). He is an ethnic Palestinian, whose languages are Arabic and English. He is a Sunni Muslim. The applicant lived at one address in [Town 1], up to the time of his departure for Australia. He attended school up to Year [number], and then did vocational training. In his protection visa application, he stated that he did this training at a private, [foreign]-funded college. The applicant also undertook further studies from October 2011 to October 2013, while he was working in an Israeli settlement. This was a [length] year [course] at [a certain college] in [town]. From early 1998, the applicant worked in an Israeli settlement in the West Bank, at [Location 1], which is [south] of [Town 1]. He told the Tribunal that the [settlement] hosts a wide range of [activities] but it has now expanded to include [other services]. The applicant worked in [an establishment] on the [settlement] for several years. At the hearing, he said that he initially worked in [role], then as a supervisor for [that role], and later [in another area]. From 2005 until his departure in July 2014, he was ‘[an occupation]’ at [a] Centre. Of relevance to his protection claims, the applicant stated that he had good access to these Israeli-owned facilities, and held a trusted position. The applicant is unmarried. His widowed mother lives in [Town 1] He has [siblings]. [One sibling] used to work in [location] in or near [village][2], but he recently took over the applicant’s job as [occupation] at [Location 1]. [Another sibling] is an [occupation], and is currently working for a company in [Town 1]. The applicant’s [other siblings] are married. [Details deleted].[2] The applicant described this as being part of Israel, but it appears to be part of the Jerusalem Governate of the West Bank. The applicant said that his mother holds a [Country 1] national ID card, and has a green card to live in the West Bank. She was born in Palestine, but lived for some time with her family in [Country 1]. The applicant said that he has some [relatives] in [Country 1]. He initially said that he has visited that country just twice. On the first visit, he travelled there on his mother’s ID document, as he was [age]. The second visit was en route to [an] Airport to depart for Australia. In later evidence, however, he stated that he used to visit his [relatives] in [Country 1] whenever the family was travelling to [a city in Country 1] (thereby suggesting that he had, indeed, entered [Country 1] on multiple occasions).

Decision

Reasons for decision

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.James SilvaMemberRELEVANT LAWThe 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 criterionSection 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 criterionIf 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 DirectionIn 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.

Ratio Decidendi

Legal Principle Established

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