1506898 (Refugee) - [2018] AATA 2889

1506898 (Refugee) [2018] AATA 2889 (20 July 2018)
DECISION RECORD
DIVISION:   Migration & Refugee Division
CASE NUMBER:  1506898
COUNTRY OF REFERENCE:  Lebanon
MEMBER:   Joseph Lindsay
DATE:  20 July 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 July 2018 at 1:11pm

CATCHWORDS
Refugee – Protection visa – Lebanon – Complementary protection – Imputed political opinion – Imputed links with Fatah al Islam – Sale of item to terrorists – Unlawful imprisonment and torture in Roumieh Prison – Assassination attempt by Lebanese intelligence – Convicted in absentia of terrorism offences by Lebanese Judicial Council – Death penalty suspended – Fear of imprisonment and death penalty – Unable to pay for mental health services in Lebanon – Credibility issues – Inconsistent evidence – Decision under review affirmed
LEGISLATION

Migration Act 1958, ss 5H(1)(a), 5H(1)(b), 5J(1), 5J(2)-(6), 5K-LA, 36(2A) and (2B), 36(2)(a), (aa), (b) (c), 65, 499
Migration Amendment (Complementary Protection) Act 2011
Migration Regulations 1994, Schedule 2

CASES

Bakhtyar v MIMA [2001] FCA 947
MZAAJ v MIBP [2015] FCA 478
Selliah v MIMA [1999] FCA 615
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
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 dated [May] 2015 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).
AUSTRALIA’S PROTECTION OBLIGATIONS – CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their…

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 1506898 (Refugee)

Details

AGLC: 1506898 (Refugee) [2018] AATA 2889
Case: [2018] AATA 2889
Decision Date: 20 July 2018

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Lebanese national before the Administrative Appeals Tribunal. The applicant had previously been found not to be a refugee under section 36(2)(a) of the Act, but was able to apply for complementary protection under section 36(2)(aa) following the commencement of the Migration Amendment (Complementary Protection) Act 2011. The applicant's claims for complementary protection were based on fears of imprisonment and the death penalty in Lebanon, stemming from alleged involvement with Fatah al Islam, a conviction in absentia for terrorism offences, and subsequent unlawful imprisonment and torture.

The primary legal issue before the Tribunal was whether the applicant faced a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon, thereby meeting the criteria for a protection visa under section 36(2)(aa) of the Act. This required the Tribunal to consider the meaning of "significant harm" as defined in sections 36(2A) and (2B) of the Act, and to assess the applicant's credibility in light of inconsistent evidence presented. The Tribunal was also mandated to consider relevant policy guidelines and country information assessments.

The Tribunal affirmed the delegate's decision not to grant the protection visa. The reasoning focused on the applicant's credibility, noting inconsistencies in his evidence. While acknowledging the applicant's past experiences, including imprisonment and torture, the Tribunal ultimately concluded that the evidence did not establish substantial grounds for believing that there was a real risk of significant harm to the applicant as a necessary and foreseeable consequence of his removal to Lebanon. The Tribunal's decision was informed by the policy guidelines and country information it was required to consider.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background This matter has an extensive background, and a brief summary of issues may assist the reader to understand what has happened to date. The applicant first came to Australia in 2005 on a [temporary] visa (from [June] 2005 to [July] 2005) before then returning to Lebanon. The applicant returned to Australia some five years later ([in] May 2010) on a [second temporary] visa and has been in Australia since that time. [In] May 2010 the applicant applied for a protection visa. [In] May 2011 the Department refused his application. On 2 June 2011 the applicant sought review of the Department’s decision by the then Refugee Review Tribunal. On 30 August 2011 the Tribunal affirmed the Department’s decision. [In] October 2011 the applicant then sought review of the Tribunal’s decision by the Federal Magistrates Court. [In] June 2012 the court ruled against the applicant and found that there was no jurisdictional error in the Tribunal’s decision of 30 August 2011 and dismissed the application. [In] July 2012, the applicant made a request for ministerial intervention under s.417 of the Act. [In] January 2013, the Minister declined to exercise that power in relation to the applicant. It is important to note here that the decision has been made that the applicant is not a refugee under the Act. The applicant exercised his appeal rights in relation to that decision. However, the applicant was able to apply for complementary protection. On 24 March 2012, the provisions as detailed in s.36(2)(aa) of the Act came into force by virtue of the Migration Amendment (Complementary Protection) Act 2011. This meant that even though a decision had been made about the applicant’s claim in relation to his refugee status as detailed in s.36(2)(a) of the Act, he was able to make an application for a protection visa under complementary protection grounds in accordance with the newly introduced s.36(2)(aa) of the Act. This view was confirmed in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013). Accordingly, [in] November 2012 the applicant made a second application for a protection visa but this time it was for consideration in accordance with s.36(2)(aa) of the Act. [In] May 2015, some two and a half years later, the delegate decided not to grant the applicant a protection visa. On 20 May 2015, the applicant applied for review of the delegate’s decision of 18 May 2015 to the Administrative Appeals Tribunal. On 29 September 2016, the applicant was invited to a hearing at the Tribunal. On 21 November 2016, the applicant had a hearing with then Member Chris Thwaites. It is noted that the applicant had two hearings with Member Thwaites – on 21 November 2016 and on 20 April 2017. However, Member Thwaites’ appointment as a member ceased in mid-2017. As a result, this matter was re-constituted to the author of this decision and the final hearing was held on 23 January 2018.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background This matter has an extensive background, and a brief summary of issues may assist the reader to understand what has happened to date. The applicant first came to Australia in 2005 on a [temporary] visa (from [June] 2005 to [July] 2005) before then returning to Lebanon. The applicant returned to Australia some five years later ([in] May 2010) on a [second temporary] visa and has been in Australia since that time. [In] May 2010 the applicant applied for a protection visa. [In] May 2011 the Department refused his application. On 2 June 2011 the applicant sought review of the Department’s decision by the then Refugee Review Tribunal. On 30 August 2011 the Tribunal affirmed the Department’s decision. [In] October 2011 the applicant then sought review of the Tribunal’s decision by the Federal Magistrates Court. [In] June 2012 the court ruled against the applicant and found that there was no jurisdictional error in the Tribunal’s decision of 30 August 2011 and dismissed the application. [In] July 2012, the applicant made a request for ministerial intervention under s.417 of the Act. [In] January 2013, the Minister declined to exercise that power in relation to the applicant. It is important to note here that the decision has been made that the applicant is not a refugee under the Act. The applicant exercised his appeal rights in relation to that decision. However, the applicant was able to apply for complementary protection. On 24 March 2012, the provisions as detailed in s.36(2)(aa) of the Act came into force by virtue of the Migration Amendment (Complementary Protection) Act 2011. This meant that even though a decision had been made about the applicant’s claim in relation to his refugee status as detailed in s.36(2)(a) of the Act, he was able to make an application for a protection visa under complementary protection grounds in accordance with the newly introduced s.36(2)(aa) of the Act. This view was confirmed in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013). Accordingly, [in] November 2012 the applicant made a second application for a protection visa but this time it was for consideration in accordance with s.36(2)(aa) of the Act. [In] May 2015, some two and a half years later, the delegate decided not to grant the applicant a protection visa. On 20 May 2015, the applicant applied for review of the delegate’s decision of 18 May 2015 to the Administrative Appeals Tribunal. On 29 September 2016, the applicant was invited to a hearing at the Tribunal. On 21 November 2016, the applicant had a hearing with then Member Chris Thwaites. It is noted that the applicant had two hearings with Member Thwaites – on 21 November 2016 and on 20 April 2017. However, Member Thwaites’ appointment as a member ceased in mid-2017. As a result, this matter was re-constituted to the author of this decision and the final hearing was held on 23 January 2018.

Ratio Decidendi

Legal Principle Established

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 the 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 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). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision. Mandatory considerations In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background This matter has an extensive background, and a brief summary of issues may assist the reader to understand what has happened to date. The applicant first came to Australia in 2005 on a [temporary] visa (from [June] 2005 to [July] 2005) before then returning to Lebanon. The applicant returned to Australia some five years later ([in] May 2010) on a [second temporary] visa and has been in Australia since that time. [In] May 2010 the applicant applied for a protection visa. [In] May 2011 the Department refused his application. On 2 June 2011 the applicant sought review of the Department’s decision by the then Refugee Review Tribunal. On 30 August 2011 the Tribunal affirmed the Department’s decision. [In] October 2011 the applicant then sought review of the Tribunal’s decision by the Federal Magistrates Court. [In] June 2012 the court ruled against the applicant and found that there was no jurisdictional error in the Tribunal’s decision of 30 August 2011 and dismissed the application. [In] July 2012, the applicant made a request for ministerial intervention under s.417 of the Act. [In] January 2013, the Minister declined to exercise that power in relation to the applicant. It is important to note here that the decision has been made that the applicant is not a refugee under the Act. The applicant exercised his appeal rights in relation to that decision. However, the applicant was able to apply for complementary protection. On 24 March 2012, the provisions as detailed in s.36(2)(aa) of the Act came into force by virtue of the Migration Amendment (Complementary Protection) Act 2011. This meant that even though a decision had been made about the applicant’s claim in relation to his refugee status as detailed in s.36(2)(a) of the Act, he was able to make an application for a protection visa under complementary protection grounds in accordance with the newly introduced s.36(2)(aa) of the Act. This view was confirmed in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013). Accordingly, [in] November 2012 the applicant made a second application for a protection visa but this time it was for consideration in accordance with s.36(2)(aa) of the Act.