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

1. 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.

2. 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.

3. [In] March 2015, the delegate refused the application pursuant to s.65 of the Act.

4. This is an application for review of that decision. The applicant appeared before the Tribunal on 14 February 2017.

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

   CRITERIA FOR A PROTECTION VISA

6. 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

7. 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].

8. 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

9. 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.

10. 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].

11. 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.

12. 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.

13. 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).

14. The applicant said that he is in regular contact with family, friends and his former employer (although not his immediate past supervisor).

15. The applicant said that in Australia, he has some ‘close relatives’, although he qualified this to say that he meant a person who had married into his family. Initially, he was working for a [certain] company, but about six months before the hearing, he obtained a position in [another establishment].

    Evidence

16. The evidence before the Tribunal includes the following relevant material: -

    §The applicant’s protection visa application, lodged [in] November 2014, attached to which was a brief statement of claims dated 20 November 2014.

    §A partial photocopy of the applicant’s [Country 1] passport, issued [in] 2014, is on file.

    §Copies of several ID documents appear on the Department file, including a copy of his West Bank ID card and his Palestinian  Authority (PA) travel document (which he refers to a his Palestinian passport).

    §The applicant attended a Department interview [in] February 2015, an audio recording of which is on the Department file.

    §The Protection visa decision record (‘delegate’s decision’) dated [in] March 2015.

    §The application for review, lodged on 2 April 2015, had attached to it a copy of the delegate’s decision record.

    §The applicant presented a large volume of material at the hearing. For the main part, these were additional copies of documents already on the Department file. However, they also included some documents that appear to have been taken from the Department’s overseas file relating to the applicant (folios 80-118 of the Tribunal file), including:

    -Identity documents – the applicant’s birth certificate (translation), partial photocopy of his [Country 1] passport; PA identity card (in Hebrew, translated) , biodata page of a PA  travel document (in Arabic, translated)

    -Copy of father’s death certificate (from PA, in Arabic only, annotated), mother’s [Country 1] passport, PA Ministry of Interior certificate of good conduct, 

    -An undated letter from the General Manager of the [Centre], stating that the applicant has worked there since 2006, as [roles]; a similar letter from [an establishment] manager, stating that the applicant had worked there from 1998 to 2000.

    -Academic certificate from the [college], showing that the applicant had completed a [a] course there in October 2013.

    -A copy of the Department’s notes (‘case dump’) recording consideration of his [temporary] visa application.

    -A pay slip, in Hebrew; and a bank statement.

    -A copy of his [temporary] visa application.  

    -Australian [temporary] visa grant notice dated [in] August 2014.

    §The applicant also presented a copy of his protection visa application, and his NSW Photo Card.

17. The applicant provided a range of country information, which includes the following: -

    §  DFAT: Smarttraveller.gov.au: Israel, the Gaza Strip and the Wet Bank (advice as of 19 November 2014)

    §  Palestine Pulse, November 17, 2014 : Hamas instigates further West Bank unrest:    ABC News: Palestinian-Israeli Unrest Continues, Jerusalem, October 1, 2014  Aljazeera: Unrest spreads after more killings in Israel, Ajazeera, 11 November 2014  >

    The Tribunal has also had regard to a range of general country information about the situation in the Palestinian Territories. This includes the Department of Foreign Affairs and Trade’s Thematic Report – Palestinian Territories, 15 March 2017, which provides an up-to-date consolidation of general country information that formed the basis for discussion at the Tribunal hearing.

18. The applicant appeared before the Tribunal on 14 February 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an accredited interpreter in the Arabic and English languages. The applicant’s representative did not attend the hearing.  

19. The Department file includes a certificate and notification under s.438 of the Act. This indicates that folios 66-69 of Department file [number] are subject to s.438(1)(a), as their disclosure would be contrary to the public interest. The stated reason is that they relate to an internal working documents and business affairs. These documents are case notes concerning the applicant’s [temporary] visa application, and information provided to the Department by [Country 2] indicating that the applicant had presented at [Country 2] Consulate-Consulate General in [city] to apply for a visa in May 2014.

20. The Tribunal informed the applicant of the existence of the s.438 certificate. In the Tribunal’s view, the stated reason for non-disclosure does not provide a sufficient basis for asserting the public interest,[3] and the s.438 certificate as it stands is invalid. Furthermore, the information in those documents that is relevant to this case – namely, the applicant’s circumstances in [Town 1] and the fact of his prior visa application for [Country 2] – are contained in the delegate’s decision, which the applicant provided to the Tribunal. The Tribunal therefore finds that the s.438 certificate is not valid, and also the documents it refers to do not contain any relevant information to this decision (as that information is available from the delegate’s decision record).

    [3] The language is akin to the public interest involving ‘internal working documents’, which the Federal Court held in MZAFZ v MIBP, MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37] did not disclose a valid basis for non-disclosure.

21. In these circumstances, it is not necessary for the Tribunal to consider whether these documents contain other information that could potentially be subject to a valid non-disclosure certificate, on other grounds.

22. The applicant noted the Tribunal’s advice about the s.438 certificate and its views on its validity and relevance, without comment.

    Relevant country

23. The Tribunal finds that the applicant is a stateless person, and that his country of former habitual residence is the OPT (West Bank). The OPT is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country for the purpose of assessing his eligibility for complementary protection.

24. In his protection visa application, the applicant described his current citizenship as both Palestinian and [Country 1]. However, it is clear from his later statements that he had conflated the question of nationality, with his possession of travel documents issued by the PA and [Country 1]. At the hearing, he did not dispute the delegate’s finding that he is a stateless person. He confirmed his understanding that his (temporary) [Country 1] passport does not confer on him nationality of that country; and that he is not considered a ‘citizen’ of Palestine because the OPT have not achieved statehood.

25. For the sake of clarity, the Tribunal summarises the key points that lead it to conclude that the applicant is a stateless person whose country of former habitual residence is the OPT:

    §  The applicant holds a [Country 1] passport, issued in [2014] and valid for [number] years. This document does not have a national ID number. Country information indicates that Palestinians who were resident in the West Bank from [a certain date] were no longer regarded as [Country 1] citizens. The Tribunal accepts that the applicant’s [Country 1] passport, which he used to travel to Australia, is a temporary travel document available to certain Palestinians in the West Bank, but does not indicate or confer [Country 1] citizenship.

    §  The applicant also holds a travel document issued by the Palestinian Authority. As noted by DFAT: ‘Since the mid-1990s, Palestinian residents of the West Bank and Gaza have been able to obtain a travel document under the seal of the Palestinian Authority. […]  The Palestinian Authority travel document is accepted by 37 countries, including Israel and Australia.’

    §  The applicant has provided copies of other documents, such as his OPT identity card, his green border crossing card, and his Israeli security card. He spoke with ease about these, and the Tribunal is satisfied that his possession and use of these is consistent with his claim to be a stateless Palestinian resident in the West Bank (and previously employed in Israeli-controlled territories there).

    §  The Tribunal finds that Palestine is not a State capable of granting nationality[4]. It takes into account, among other things, that Australia has not recognised a ‘State of Palestine’, and the prevailing view in international law remains that the OPTs are not a sovereign state capable of conferring citizenship on Palestinians.

    [4]  See, for instance: Koe v MIEA (1997) 78 FCR 289 at 298

26. The Tribunal notes that while the word ‘country’ in the phrase ‘country of nationality’ is used to denote a country capable of granting nationality, in the phrase ‘country of former habitual residence’ it is used to denote a country which need not have this capability.[5] It is satisfied, on this basis, that the Palestinian Territories is the applicant’s country of former habitual residence.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    [5] Ibid.

    Assessment of Claims: Credibility

27. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence.

28. The Tribunal found much of the applicant’s evidence to be vague, meandering and unsubstantiated. It appreciates that he may not have strong presentational skills, and that he was not accompanied by a representative. However, it has some concerns that he was not always speaking from lived personal experience, but rather improvising on some occasions. The Tribunal addresses these concerns in its assessment below.

    The applicant’s experiences prior to July 2014

29. The applicant was born and lived in [Town 1], in the West Bank. His account of growing up there, attending school, and then finding work in a [settlement] in an Israeli-controlled part of the West Bank was consistent with country information about life there. The applicant stressed in his written and oral evidence that his life turned upside down on the day that Palestinian militants approached and threatened him – see immediately below. He said that he had not had any real problems before then.

30. The applicant description of his life in [Town 1] and [Location 1] suggested that he experienced the kind of problems facing West Bank residents, such as restrictions on movement (including into Israel and Israeli-controlled areas, as well as [Country 1]), and some ongoing security concerns. He intimated that these were part of daily life, and hence, tolerable. The applicant did not claim or imply that they interfered significantly with his education, employment or his overall welfare. It was against this background, he claimed, that he and his then-girlfriend had applied for a [Country 2] visa in May 2014. He said that wanted to go there, just for ‘tourism’. There are few details about the applicant’s [Country 2] visa application in mid-2014. But the Tribunal does not accept at face value that he was planning to stay there for only a brief period, before returning to the OPT. Even so, the overall picture to emerge is that at least to mid-2014, the applicant did not experience harm (including discrimination or intimidation), threats of violence (either directed at him personally or more general security problems), or other detriment that amounted to serious harm or significant harm.

31. The applicant claimed that his situation changed dramatically in mid-2014 when the suspected Palestinian militants approached him – and that the overall deteriorating security situation has added to the risks he faces on his return.     

    The alleged approach by Palestinian militants in July 2014  

    At the Department interview [in] February 2015[6] and at the Tribunal hearing, the applicant claimed that suspected Palestinian militants approached him some time during July 2014; that they tried to forcibly recruit them to join them or engage in terrorist acts; and that he fled the OPT in response to imminent threats.

    Background to and significance of the claimed approach

    [6] Note: The applicant provided the Tribunal with a copy of the decision record, which it draws on as appropriate

32. The applicant claimed that the Palestinian militants targeted him because he had a trusted position with his Israeli employer, and therefore good access to their facilities. His ‘connections’ made him an attractive target for the Palestinian militants, as a person who might help them carry out attacks. His later evidence suggested that they might also hold some enmity towards Palestinians with close Israeli ties (particularly if they refused to cooperate with militants).

33. The applicant claimed that the militants’ approach put him in a dilemma.

    §  First, the Palestinian militants said that they wanted him to carry out some kind of attack. The applicant told the Tribunal that the [men] spoke at length about wanting him to ‘liaise’ with them, and follow their instructions, and they had promised to reward him handsomely. He intimated that they wanted to recruit someone who could pass Israeli security, and then launch an attack in which people were killed. Although he stayed in the West Bank for almost three months after this conversation, he claimed that the militants followed him around, and were a menacing presence.

    §  Second, the militants threatened to accuse him of collaboration with the Israelis if he failed to comply with their demands. Later in the hearing, the applicant said that they had actually made this accusation while he was still there.

    §  Third, the applicant had nowhere to look for protection. Although the applicant agreed with country information that the PA and its security forces have taken steps to counter terrorism[7], he did not believe that this would translate into protection for him if he approached them. Rather, he feared that they would view him with suspicion, and send him to prison pending investigations (by implication, that they would suspect him of acting on behalf of the militants or of Israel).

    §  Fourth, the applicant also claimed that any disclosure of his contacts with (suspected) Palestinian militants would immediately attract the attention of the Israeli security services, who for their part would likely interrogate him (and, by implication, withdraw his security clearance and his future options of working in Israeli-controlled areas). He gave this as a further reason for his failure to tell anyone about his claimed experiences, except for family members and his lawyer in Australia. 

    [7] United States Department of State, Country Reports on Terrorism 2015 - Israel, The West Bank and Gaza, and Jerusalem, 2 June 2016, available at:   

1. The applicant’s claims are therefore very serious. There is considerable country information on these phenomena – forced recruitment by Palestinian militants (particularly in Gaza), and the risks that people accused of collaboration with Israel face. For instance, DFAT wrote in March 2017[8]:

   [3.30] Collaboration with Israel, which includes sharing information or intelligence with Israeli authorities that could harm the Palestinian cause, carries the death penalty in the Palestinian Territories. However, given the context, engagement with Israel cannot be avoided and there are instances of cooperation that do not amount to collaboration, such as joint security operations. […]

   In the West Bank, the same suspicions [as in Gaza] surround passing of information, spying and collaboration exist. However, economic collaboration is unique to the West Bank, which is not under blockade like Gaza. Sale of Palestinian property and land to an Israeli is seen as a form of collaboration. There are anecdotal reports that families who have sold West Bank property to Israelis will leave their houses abandoned and, when the Israeli settlers move in, say that their home was forcibly acquired. Palestinian authorities are known to attempt to track the money transfers in suspected cases of sale to Israelis.

   [8] Department of Foreign Affairs and Trade: Thematic Report – Palestinian Territories, 15 March 2017

2. It is against this background that the Tribunal explored with the applicant in some detail, and now also assesses, his claimed encounter with the militants, and the events that followed it.

   The Palestinian militants’ approach

3. The applicant’s account of the encounter with the militants, as presented at the Department interview and the Tribunal hearing, consisted of the following elements:

   §  [Number] unknown men unexpected came to him one day (perhaps on a Thursday or on a weekend), when he was at a [location] with his mother and girlfriend.

   §  They took him to one side and asked him to cooperate with them, implicitly in acts of terrorism. They threatened him if he did not comply.

   §  After this incident, these men ‘chased’ him (by which the applicant appears to be stating that they continued to pursue him).

4. The Tribunal hearing fleshed these claims out in some detail:

   §  The applicant thought that the incident might have occurred on a Wednesday, simply because it had been one of the quieter [nights]. He had been sitting [with] his mother and his then fiancée (the couple did not proceed to marry). They were [in] a garden courtyard.

   §  The applicant said that [number] men appeared and asked him to join them, contacting him via [another person]. He does not know what they told the [other person]; for instance, whether they mentioned him by name.

   §  The men asked the applicant to come over and speak with them. He complied. The conversation took place on the other side of the courtyard, and the applicant thought it lasted about half an hour. He said that his mother and his then girlfriend stayed [away].  They did not [enquire] about his whereabouts. Eventually he [returned], flustered and stressed out, and said that they had to leave.

   §  The applicant said that he did not know who the men were, but described them as ‘serious looking’. He believed they were Palestinians, but he doubted that they were locals from [Town 1], because of their slightly paler complexion. They did not reveal their identities, but he thought they came across as criminal or political types. He believed that they were armed – the applicant could see that one had a pistol, and he thought that another was hiding a concealed weapon under his clothes.

   §  The applicant said that all [of] the men spoke. They pressured him to join them to engage in secret activities, promising it would make his life better. He said that he tensed up, and was not sure how much time actually passed. They flagged to the applicant that they wanted him to carry out some ‘vandalism’ in Israel, which he said meant carrying out a deadly explosion. The applicant cut them off during the conversation, and told them that he was a peaceful person. The applicant said that he was in shock, and cannot recall the exact flow of the conversation.

5. The Tribunal takes into account that a person who had been unexpectedly approached in this manner might have been stunned, and have a poor recollection of the details of the exchange. However, the Tribunal is unsettled by the overall vagueness of the claimed encounter – such as when it occurred, the appearance and demeanour of the men, the public nature of their approach, and how the applicant absented [himself] and spent up to half an hour with these men, without his mother and then-girlfriend making enquiries as to what happened. The Tribunal formed the impression that the applicant filled in some gaps as he went along – for instance, indicating that one of them men had a visible weapon, and the other may have had a concealed one. Overall, it is concerned that the applicant did not appear to be recalling his own lived experience.

6. These concerns cast some doubt on the applicant’s account. The Tribunal returns to these doubts, and makes findings, after first considering the events that followed the alleged incident.      

   Events following the militants’ approach

7. The applicant claimed that he feared for his safety after the men approached him, and this motivated him to flee the West Bank and travel to Australia for protection. For the reasons that follow, the Tribunal does not accept that the applicant fled the West Bank in response to any such incident.

8. Continued work and residence: The applicant departed the West Bank some two months after the alleged incident. At hearing, he said that he continued working. He went from home to work, and otherwise only ventured out in the company of friends who could protect him (although he did not disclose his problems to his friends, so they appear not to have taken added precautions). Meanwhile, his realised that he needed to leave the West Bank, and -focused his energy on finding a way to leave. The Tribunal is concerned that the applicant in effect continued his work and other routines, with no apparent change in response to the alleged threats.

9. Further approaches or threats: The applicant initially said that he had no further direct contact with these men. However, he added that they used to call him on his mobile telephone, saying that they had not received a positive answer from him. They warned that they could easily accuse him of collaborating with Israel. The applicant observed that such an allegation could cost him his life. In response to the Tribunal’s observation that these were merely telephone threats from unknown persons, with no tangible follow-up, the applicant added that these men were contacting him ‘on and off’’. On many occasions, they saw him with friends, but did not approach him. The applicant implied that they were following him, and possibly looking for an opportunity to strike. He said that they did actually accuse him of collaboration with the Israelis. The Tribunal remains of the view that there was no effective follow-up to the claimed initial discussion. Also, the applicant appeared to be adding to his claims as the discussion proceeded – for instance, claiming that there were multiple calls; the men were following him and likely looking for an opportunity to find him alone; and even that they might actually have accused him of collaborating with Israel (although, again, with no apparent consequences). The Tribunal formed the view that the applicant was not speaking from personal experience, but rather ad-libbing.

10. Precautionary measures: The applicant said that he told his mother and siblings. Although he only went out with friends who could protect him, he did not tell these friends about the threats. He also did not approach the Palestinian Authority, police or anyone else. He feared that any complaint he lodged could trigger their suspicion and land him in prison. The applicant acknowledged country information that the PA is working to protect the local population from Palestinian militants, but suggested that this did not remove his fears of the possible consequences of approaching them. The Tribunal accepts that a person who has been subject to approaches by militants, and potentially caught between being accused by various parties of being either an Israeli collaborator or a militant sympathiser/supporter – might find themselves in a real dilemma. It therefore draws no adverse inferences from the applicant’s claim that he was at a loss as to where to seek protection. However, this issue is relevant in an overall assessment of the applicant’s conduct while still in the West Bank (see above), especially in considering whether the applicant acted urgently to leave the area. 

11. Efforts to leave the West Bank: The applicant spoke about his efforts to leave the West Bank, given his claimed fears that he was in imminent danger. The discussion at hearing was confused. This arose not because of any focus on precise dates (the Tribunal accepts that this can cause difficulty), but from the timeline and sequence of events.

    §  The applicant recalled that he lodged his Australian visa application about six weeks after the day when the militants approached him. He said that he approached an agent who started the process for the application, and advised him to provide certain papers (these included many of the documents that the applicant had brought with him to the hearing). The applicant said that he told the agent that he wanted to travel soon, but he did not reveal the reasons. The agent told the applicant that he would need to obtain a [Country 1] passport with a validity of five years. (The applicant’s statement implied that one of the reasons for his [Country 2] visa refusal had been associated with either the format of the PA travel document or its limited validity.) The applicant said that, after lodging his Australian visa application, it took about 20 days before the visa grant.

    §  In the Tribunal’s view, the applicant’s account of the sequence of events unravels his claim to have fled the West Bank in response to militant threats in July 2014.

    -   As noted in the delegate’s decision record, the applicant applied to [Country 2] for a [visa] in May 2014. The applicant said that he had made this application using his Palestinian passport (PA travel document).

    -   The applicant said that the agent whom he approached to help with the Australian visa said that he needed to have a passport of five years’ validity. The Tribunal observed that the applicant’s [Country 1] passport was issued [in] 2014, some [number] months before the alleged incident with the militants. In reply, the applicant said that he might already have had his [Country 1] passport when he approached the agent (and not, as implied, that the agent had encouraged him to obtain one for the purpose of his Australian visa).Even if the Tribunal were to accept this, it suggests that as of mid-May 2014, after the applicant’s [Country 2] visa application had been rejected, he continued to look for an opportunity to leave the West Bank (and hence not merely in response to any incident).

    -   As noted above, the applicant said that he lodged his Australian visa application about six weeks after the alleged incident, after gathering the documents that the agent required. The visa application papers that the applicant presented at the hearing show that he signed the visa application form [in] July 2014, and had already attached to it as of that date a copy of his bank statement and balance, as of [date] April 2014. Although the applicant thought that the application processing took about 20 days (from [date] July 2014), the papers he presented to the Tribunal showed that the application was not lodged until [date] August 2014, and granted the following day.

    -   The ramifications of this are twofold: -

    §  First, the applicant signed the [temporary] visa application form in mid-July 2014 (and appears to have thought it was lodged on or around that date). This puts the estimated date of the alleged incident in early June 2014 (ie. six weeks before the application).

    §  Second, as discussed at hearing, the applicant appears to have opted for a travel destination that was relatively expensive and time-consuming (in terms of preparing the application), rather than seeking to leave the West Bank at the first opportunity. Even allowing for the fact that his [Country 2] visa had been refused, the applicant showed little effort to consider cheaper or faster options to leave the West Bank.

    -   Overall, the applicant struggled to relate the alleged approach by the Palestinian militants with the sequence of events that surrounded his travel plans in early and mid-2014 – that is, his [Country 2] visa application, his issuance of a [Country 1] passport, and the timing of his Australian visa application and grant. The Tribunal is not satisfied that this is the result of any genuine confusion or blurring of events. Rather, the Tribunal considers it is the result of the applicant having invented the alleged incident, and yet not having thought through how it meshed with his ongoing efforts to seek a visa for [Country 2], Australia or another Western country.

12. In sum, while the applicant attributes his decision to leave the West Bank and seek protection in Australia to the imminent threats he received from Palestinian militants, the Tribunal is not satisfied that his travel history – in particular, his application for a [Country 2] visa in May 2014, supposedly for unrelated purposes; his obtaining a [Country 1] passport to improve his prospects of obtaining a visa for another country; and the choice of Australia as a destination – supports this.

13. The applicant’s advice that his [brother], who had previously working in a [certain] factory in [village], had now taken over his position at [Location 1], adds to the Tribunal’s doubts. The Tribunal queried why – if Palestinian militants had targeted the applicant, allegedly to undertake some kind of terrorist activity – his brother risked doing the same work. In response, the applicant said that his brother needs the money for his family. The applicant distinguished his situation from that of his brother, who does not enter the [settlement] as often. Also, he does not have the same connections or profile as the applicant – the militants had been observing the applicant, and knew about his relationships with the Israelis. The applicant added that his brother’s situation was precarious, but so far nothing had happened. In the Tribunal’s view, the applicant’s comments presuppose that he knew why the militants approached him, and he and his brother were reasonably confident that his brother would not face the same risks. The Tribunal finds the applicant’s explanation for his brother’s undertaking the same work, for the same Israeli employer, in the same location, unpersuasive. The brother’s ability and willingness to work in [Location 1] adds to the Tribunal’s doubts about the veracity of the applicant’s claims.  

    Conclusion

14. The Tribunal has outlined above its concerns about the applicant’s description of what happened between him and the militants; and his account of subsequent events – in particular, his continued residence and work in [Town 1] and [Location 1]; the lack of any serious follow-up by these men; the applicant’s lack of credible precautions (apart from his travel arrangements); and the brother’s taking over the same position after the applicant left for Australia.

15. Taking all of these concerns cumulatively, the Tribunal does not accept that Palestinian militants approached the applicant; that they tried to recruit him (to undertake terrorist activities or some other kind of ‘liaison’ work); that he lived in fear for several months; or that he left West Bank for Australia in response to such fears. The Tribunal finds that the applicant has fabricated this claim. It finds that he left the OPT for reasons unrelated to this claim.

    Assessment – Refugee Criterion

16. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct, and relevant country information, he has a well-founded fear of Convention-related persecution on his return to the OPT, now or in the reasonable foreseeable future.

17. It is well-established that refugee status under Article 1A(2) of the Convention will not be accorded to persons merely because they are stateless and unable to return to their country of former habitual residence. Art. 1A(2) requires that a stateless person, being outside the country of his former habitual residence, must also have a well-founded fear of persecution for a Convention reason.[9]

    [9] MIMA v Savvin, (2000) 98 FCR 168.

18. The applicant claimed to fear that the Palestinian men who targeted him in [Town 1] will easily locate him if he returns to the OPT, or elsewhere in the region (such as [Country 1]). He claims to fear that they will follow through their approach to him in mid-2014 – by forcibly recruiting him to their cause (including perhaps the carrying out of terrorist acts); or seriously harming him; or even killing him. He also claimed that they threatened (or had actually already taken steps to) declare him a collaborator with the Israelis, which in itself could expose him to the death penalty, or societal retribution. Additionally, he fears that such allegations, and/or any effort on his part to seek official protection, could arouse the attention of the Palestinian Authority security forces and/or Israeli intelligence. This puts him at risk of being detained, interrogated and/or mistreated.

19. Given the Tribunal’s rejection above of the applicant’s claim that Palestinian militants approached him as described in mid-2014, it finds that there is no real chance of the applicant suffering resulting adverse attention and treatment, from Palestinian militants, Palestinian or Israeli security forces, society at large, or anyone.

20. The applicant lived in the OPT (West Bank) until mid-2014, and by his own account, did not suffer any serious harm there, for any Convention-related or other reason. This is apparent from his description of his education, employment and other circumstances, despite the general security concerns and practical constraints that mark life there.

21. The applicant claims that, since his departure from OPT in mid-2014, the situation in the West Bank has only got ‘uglier’. He claimed that both Israeli settlers and Palestinian militants lack humanitarian values, and can simply carry out acts of violence at will.

22. There is a significant amount of country information to support the applicant’s general contention. DFAT’s recent report[10] gives a succinct, up-to-date overview of the kinds of concerns that the applicant is alluding to:

    In the second half of 2015 violence escalated between Israel and the Palestinians in the West Bank and east Jerusalem with stabbing attacks predominantly carried out by Palestinian youths against Israelis. At its peak in October 2015, there were 78 Palestinian attacks against Israelis, taking the form of stabbings, shootings and car-rammings. From 1 October 2015 to 10 April 2016, 25 Israelis and 205 Palestinians were killed. Israel implemented additional security measures in response to the violence. The violence persisted throughout 2016 although its intensity was reduced; in September there were six stabbing attacks, one car-ramming and one rock throwing incident, mostly in Jerusalem and Hebron, which resulted in the deaths of five Palestinians and injury to six Israelis. In October 2016, an Israeli civilian and police officer were killed in a drive-by shooting attack in east Jerusalem. The Palestinian assailant was shot and killed by Israeli police following a brief pursuit. In December 2016 a young Palestinian man was shot dead by Israeli forces following an alleged stabbing attempt in the West Bank. In January 2017, four Israeli soldiers were killed in a truck-ramming in east Jerusalem. The Palestinian attacker was shot dead at the scene. Palestinian security forces in the West Bank coordinate with Israel on security matters.

    [10] Department of Foreign Affairs and Trade: Thematic Report – Palestinian Territories, 15 March 2017, at [2.53]

1. In the Tribunal’s view, the core of these concerns lies in the general security situation and risk of violence in the West Bank. In assessing whether the applicant faces a real chance of Convention-related persecution in the reasonably foreseeable future, the Tribunal takes into account that his personal and family circumstances in [Town 1] did not result in persecutory harm or the threat thereof in the past. The applicant claims to have had an elevated profile among Palestinians because of his period of his work at the [workplaces], or that he was at least seen as having good access into Israel. The Tribunal notes that the West Bank has close ties, including economic and employment ties, with Israel. And it finds that the applicant was not subject to any adverse attention (from militants or others) due to his work there.

2. Looking ahead to the reasonably foreseeable future, the Tribunal accepts that the security climate in the West Bank has deteriorated somewhat since the applicant’s departure, and that he may be worried about his prospects, especially as a Palestinian returning to the West Bank and seeking work, maybe with his former Israeli employer.

3. The Tribunal is unsure, on the limited available evidence, whether the applicant will resume work with his former Israeli employer on his return – that is, whether he will take over from his brother – or look for other work in a similar field. The Tribunal accepts that the applicant has some attributes, as a Palestinian male, and a former (and perhaps future) employee of an Israeli [settlement], that could be risk factors. However, even considering all of these cumulatively, the Tribunal is not satisfied that he faces a real chance of being subject to adverse attention and persecutory harm, from Palestinian militants or others (including local Palestinians, and/or Palestinian or Israeli security forces). The Tribunal takes into account his past experiences, current country information and the limited (and uncertain) evidence about the applicant’s future conduct on his return to the West Bank. It is not satisfied that he faces a real chance of persecution for a Convention reason (such as his Palestinian race, imputed political opinion, or any associated particular social group).   

4. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to the OPT. He therefore does not satisfy the criterion in s.36(2)(a).

   Assessment – Complementary Protection

5. The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to the OPT.

6. The Tribunal has considered, but not accepted, the applicant’s claim that Palestinian men targeted him, trying to forcibly recruit him, force him into performing terrorist acts, threatening to declare him a collaborator, and otherwise harm or kill him. It follows that the Tribunal has rejected all the associated claims, such as the risk of Palestinian residents mistreating him as a suspected Israeli collaborator, the Palestinian Authorities imposing the death penalty, and the PA and/or Israeli security forces detaining, interrogating and perhaps mistreating him.

7. The Tribunal accepts that the applicant is concerned about the West Bank’s security environment, in particular due to sporadic violence carried out by Palestinian militants and Israeli settlers, and the uncertain political outlook. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. As noted above, the Tribunal accepts that the applicant may personally face some additional risk factors – as a Palestinian male, and a former (and perhaps future) employee of an Israeli [settlement]. However, the Tribunal is not satisfied that these factors, even cumulatively, establish a real risk of the applicant being subject to significant harm if he returns.

8. Looking ahead to the reasonably foreseeable future, the Tribunal is not satisfied that that there are substantial grounds for believing that the applicant will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.

9. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the OPT, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   Conclusion

10. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. 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).

11. 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).

12. 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

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

    James Silva
    Member

    
    

    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.