1512002 (Refugee)
[2017] AATA 1823
•9 October 2017
1512002 (Refugee) [2017] AATA 1823 (9 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1512002
COUNTRY OF REFERENCE: Palestinian Terr. (W.Bank/Gaza)
MEMBER:Denis Dragovic
DATE:9 October 2017
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 09 October 2017 at 8:54am
CATCHWORDS
Refugee – Protection visa – Palestinian Territories – Ethnicity – Palestinian – Social group – Stateless – Homosexual – United Nations Relief and Works Agency (UNRWA) – Family and general threats
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2
CASES
Tjhe Kwet Koe v Minister for Immigration & Ethnic Affairs & Ors [1997] FCA 912
MIMA v WABQ (2002) 121 FCR 251
WACG v MIMA [2002] FCAFC 332
Appellant S395/2002 v MIMA (2003) 216 CLR 473
SZSWB v MIBP [2014] FCCA 765
MZAIV v MIBP [2015] FCCA 2782
BBS16 v MIBP [2017] FCCA 4Any 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).
Regarding the applicant’s country of reference, the delegate referred to Tjhe Kwet Koe v MIEA[1] in which it was determined that the wording, ‘country of his former habitual residence’ as constructed in the Refugee Convention does not have to be a state. The delegate summarised the court’s decision as being that a territory may constitute a ‘country’ if it has a distinct area with identifiable borders, enjoys a degree of autonomy in relation to its administration and is considered a country as a matter of every day usage. Based upon this the delegate determined that the Palestinian Territories is the applicant’s country of reference for the purpose of assessing his claims under the Refugees Convention and that it is the applicant’s receiving country as defined in section 5 of the Migration Act for the purpose of assessing the complementary protection criteria. I have reviewed the same material and concur with the delegate’s ultimate finding that the applicant has no nationality and therefore is stateless. As such I have considered the applicant’s country of former habitual residence, a term considered in Tjhe Kwet Koe v MIEA and found by Tamerlin J to not be restricted to independent sovereign states. As such I consider the Palestinian Territories as the applicant’s country of former habitual residence for the purpose of the Refugee Convention and receiving country for the purpose of complementary protection.
[1] Tjhe Kwet Koe v Minister for Immigration & Ethnic Affairs & Ors [1997] FCA 912 (8 September 1997)
The applicant applied for the visa [in] March 2014 and the delegate refused to grant the visa [in] August 2015.
The applicant appeared before the Tribunal on 22 and 27 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a phone interpreter in the Arabic (Lebanese) and English languages.
The Minister’s delegate refused the application for a protection visa which was based upon claims including fearing persecution from Israel because of his Palestinian nationality and Muslim religion, threats arising from a family dispute and having [Illness 1]. While accepting the applicant’s evidence the delegate found that the threat to his life as Palestinian Muslim from Israel amount to generalised violence and as such were not grounds for protection. His claims of family violence were questioned and dismissed. The applicant at the Departmental hearing stated that he had [Illness 1] and that he feared being identified by the authorities or the community were he to return. The delegate determined that the applicant could go to another clinic away from his community to get any required blood test and that doctors would be bound to professional privacy standards.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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.
Article 1D of the Refugees Convention operates to exclude from the Convention persons presently receiving protection or assistance from a United Nations organ or agency other than the United Nations High Commissioner for Refugees (UNHCR). Article 1D states:
This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations, other than the United Nations High Commission for Refugees, protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
The Full Federal Court in MIMA v WABQ (2002) 121 FCR 251 held that the first paragraph of Article 1D applies to exclude a person from the Convention if the person belongs to a class of persons who were receiving protection or assistance from organs or agencies of the United Nations other than UNHCR as at 28 July 1951, the date when the Refugees Convention was signed, this being the time referred to by the words ‘at present’. The relevant factual issue in relation to the first paragraph is whether the applicant belongs to the relevant class of persons. In the case of a stateless Palestinian applicant, if Palestinians as a group were as at 28 July 1951 receiving protection or assistance then the first paragraph applies. The Full Court in WABQ observed that the United Nations Conciliation Commission for Palestine (UNCCP) and the United Nations Relief and Works Agency (UNRWA) appeared to have been providing protection and/or assistance to Palestinians at the relevant time.
I now turn my mind to the first paragraph of Article 1D and whether organs of the United Nations were providing protection or assistance to Palestinians in 1951. In his reasoning Tamberlin J wrote at [169] that the first paragraph of Article 1D should be read as follows, ‘Palestinians as a group were as at 28 July 1951, protected by UNCCP and assisted by UNRWA and therefore could be described as “at present receiving protection or assistance.”’ Justice Moore concurred at [108] while Hill J determined that it is not a matter for the Court to determine but rather the Tribunal. I find that UNCCP was providing protection and that UNRWA was providing assistance to the class of persons referred to by Article 1D as of 28 July 1951 based upon a review of the evidence contained and referenced in MIMA v WABQ in addition to a report covering the period from 23 January through to 19 November 1951 to the General Assembly.[2]
[2] PROGRESS REPORT OF THE UNITED NATIONS CONCILIATION COMMISSION FOR PALESTINE Covering the period from 23 January to 19 November 1951 Available at >
I next turn my mind to the question of whether the applicant belongs to a class of persons who were receiving protection or assistance from UNRWA and UNCCP in 1951. The applicant provided an UNRWA registration card to the Department.[3] To register with UNRWA as a Palestinian refugee the criteria required to be fulfilled includes:
“persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.” The descendants of Palestine refugee males, including legally adopted children, are also eligible for registration.
That the applicant is registered with UNRWA infers that he is a descendant of a Palestinian male who met the above criteria. Being a direct descendent makes the applicant a member of the class of persons for which Article 1D was established as interpreted in WABQ. As such I am satisfied that the applicant belongs to a class of persons who were as of 28 July 1951 receiving protection or assistance from organs or agencies of the United Nations other than UNHCR.
[3] [File number] folio 16
As the applicant falls within the terms of the first paragraph, it is then necessary to consider if the second paragraph applies. The Full Court in WABQ held that the second paragraph is also concerned with a class of persons rather than individuals and that it is sufficient if either protection or assistance has ceased for any reason in respect of the class (without their position being definitively settled) for the second paragraph to apply. It will not be sufficient that protection or assistance has ceased in relation to an individual member of the class. Whether protection or assistance has ceased in relation to the class of persons is a question of fact for the Tribunal to determine according to the material before it. In relation to a stateless Palestinian applicant, if it is found that either protection or assistance has ceased in relation to the class, the applicant is entitled to have his or her application for a protection visa determined according to the Convention definition in Article 1A(2): WACG v MIMA [2002] FCAFC 332.
I find that there is sufficient evidence to determine that UNCCP is no longer providing protection.[4] The question is whether there is currently an organ of the United Nations that provides assistance and the same or another that provides protection. In considering this question I have reviewed the website of UNRWA which includes the following:
[4] WACG v MIMA [2002] FCAFC 332 at [27] and [168]
UNRWA human development and humanitarian services encompass primary and vocational education, primary health care, relief and social services, infrastructure and camp improvement, microfinance and emergency response, including in situations of armed conflict.[5]
[5] ‘What we do’, UNRWA website, available at accessed on 13 September 2017.
UNRWA protection activities aim to respond to the protection needs of Palestine refugees amidst increasing conflict and displacement in the region.
…
UNRWA has a mandate to undertake a broad range of activities for the protection of Palestine refugees in our fields of operation. The UN General Assembly acknowledges the protection mandate of UNRWA by recognizing in its resolutions “the valuable work done by the Agency in providing protection to the Palestinian people, in particular Palestine refugees.” The Agency’s protection mandate specifically addresses the rights of vulnerable groups – women, children and persons with disabilities – and the General Assembly has encouraged UNRWA to further address their needs and rights in its operations in accordance with relevant international instruments including the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities.
The importance of protection to Palestine refugees is translated into action through Strategic Outcome 1 of UNRWA’s Medium Term Strategy for 2016-2021, which requires the Agency to work to ensure “Refugees’ rights under international law are protected and promoted”. The Medium Term Strategy provides:
UNRWA applies a holistic approach to protection. This includes an ‘internal’ dimension, focusing on realizing the rights of Palestine refugees in and through the Agency’s service delivery programmes, and an ‘external’ dimension involving engagement with relevant duty bearers to ensure respect for Palestine refugee rights. These dimensions, however, are not mutually exclusive.
There are four complementary elements to the Agency’s protection approach:
•UNRWA ensures that it provides protection in and through its service delivery programmes by meeting minimum protection standards.
•UNRWA implements protection programmes that respond to protection threats and promotes the resilience of Palestine refugees.
•UNRWA addresses cases of violence, abuse, neglect and exploitation of vulnerable groups, including women and children.
•UNRWA promotes the rights of Palestine refugees under international law, through the monitoring and reporting of violations and by engaging in private and public advocacy.[6]
After reviewing the website and annual reports I accept that UNRWA provides assistance.[7] Whether it provides protection has been contentious in the past largely because of the question of what constitutes the concept of protection. The role of UNCCP, which I have accepted provided protection in 1951, was enunciated through a United Nations resolution as including, ‘(c) Continue consultations with the parties concerned regarding measures for the protection of the rights, property and interests of the refugees.’[8] As this is what constituted protection when the Convention was written I treat this as what constitutes protection for the purpose of assessing whether there is an organ of the United Nations providing protection as it relates to Article 1D. In reviewing the activities of UNRWA and its mandate as elaborated through the UN General Assembly resolutions and strategic plan I find that UNRWA is providing protection to the class of persons relevant to this case.[9]
[6] ‘What we do’, UNRWA website, available at accessed on 13 September 2017.
[7] Available at
[8] WACG v MIMA [2002] FCAFC 332 at [144]
[9] Other jurisdictions have come to the same conclusion. The UK Home Office writes, ‘UNRWA currently provides assistance and protection to some 5 million registered Palestinian refugees.’ UK Home Office, Asylum Policy Instruction Article 1D of the Refugee Convention: Palestinian refugees assisted by the United Nations Relief and Works Agency (UNRWA), 9 May 2016. The Court of Justice of the European Union came to a similar conclusion which is summarised in the above noted UK Home Office report as follows: ‘This aspect of the El-Ali judgment was effectively overturned by the Court of Justice of the European Union (CJEU), on 17 June 2010 in Nawras Bolbol v Bevándorlási és Állampolgársági Hivatal (Hungary). It ruled that Article 12(1)(a) of the Directive (and therefore Article 1D by extension) applied in the present, and not merely to those receiving assistance in July 1951. It potentially applied to all Palestinian refugees currently eligible to receive UNRWA protection or assistance. The CJEU‟s other principal finding was that only those who had actually availed themselves of UNRWA assistance could come within the exclusion clause. The CJEU ruling also found that while registration with UNRWA would be sufficient proof of having received assistance, such assistance could be provided in the absence of registration, in which case the applicant must be permitted to provide evidence of that assistance by other means.’ See also UNHCR Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees at [7] available at accessed on 15 September 2017.
For the reason of UNRWA and UNCCP having provided assistance and protection respectively in 1951 and that assistance and protection not having ceased to be provided to the class of persons described in the first paragraph of Article 1D I find that the applicant is not entitled to the benefits of the Refugee Convention and as such I do not consider further the applicant’s claims as they relate to s 36(2)(a) of the Migration Act.
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.
Procedural Matters
At both hearings I asked the applicant if he was on any medication to which he responded that he was on medication to reduce overthinking and to be able to sleep. I asked if it is affecting his ability to provide evidence. He said no. I informed the applicant that if in the future he feels that because of the medication or his illness he is unable to provide evidence then he should let me know.
The applicant was composed and lucid throughout both Tribunal hearings. He submitted numerous psychologist reports outlining his mental health. In summary the consulting psychiatrist wrote that the applicant suffers from a severe anxiety disorder which is consistent with Generalised Anxiety Disorder together with significant depressive symptoms qualifying for a diagnosis of Major Depressive Disorder.
I accept that the applicant is a vulnerable person as defined in Guidelines on Vulnerable Persons and have taken these matters into consideration in the way the hearing was conducted.
The applicant noted to the psychiatrist that he has had thoughts of self-harm. This led to the Tribunal fast tracking the hearing upon receipt of the medical report.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and Findings of Fact
The applicant was born in [Refugee Camp 1] [where] he grew up and attended a [school] until he was [age] years old. UNRWA provides services to the camp but is not responsible for administering or policing them which falls under the ‘host authorities’.[10] The applicant claimed that he witnessed much of the war as he was growing up, a statement that aligns with evidence that [Refugee Camp 1] was severely affected during the second intifada by ‘incursions, arrests, raids and curfews.’[11] I accept that the applicant was born, grew up, attended school and was witness to the events that transpired over the years in [Refugee Camp 1].
[10] [Source deleted].
[11] [Source deleted].
The applicant has [siblings]. [The siblings] are in [another country]. [Other] brothers live in [Refugee Camp 1]. [One brother] spent time in jail, and [the other brother] recently graduated but the applicant was not sure if he had a job. The last time they talked was two years ago. Of his sisters, [number] are married with one residing in [Refugee Camp 1], one near [City 1] and another near [another city]. The last sister is still living with her parents who are both still alive. I accept this narrative of his family structure.
He explained how he would spend his days prior to coming to Australia. His father wanted him to work alongside him and so he would join him at the shop. Sometimes, for reasons the applicant stated were related to his father knowing that he had gay relationships, he would be beaten in front of his mates and reprimanded by his father not to join them. His main responsibilities were to monitor the shop and call his father, when out on a job, if someone came to buy something. The camp was a small place and so it was easy to get around quickly. He explained that his father thought that he was a bludger. I accept that this occurred.
In July 2012 he was walking with his friend when he claimed that Jewish fanatics attacked him. They were hiding behind trees near the Wall and attacked him with glass or bottles. He believes that they came from a nearby Jewish settlement. He sustained an injury to [a part of his body]. He had to be taken to a hospital where he claims they refused to do any surgery. When his mother tried to organise for medical help they couldn’t get any because he didn’t have any insurance or money. He was then transferred to [a hospital]. Because of the delays he has permanent damage to [his body]. I accept that this occurred.
I asked if he has experienced any other general violence in the West Bank. He said that he has seen everything—killing, shooting, violence in the camp, all the parties are fighting against each other. Young people die. He sees blood every day. Tanks at the doorsteps. During the first twelve years of his life he lived in fear. Every party wants to dominate the camp, until today there is no control, just fighting for domination, Fatah v Hamas. I put to him that it was my understanding that Hamas’ influence in West Bank diminished substantially. He responded that in the camp there are many groups fighting against each other, everybody wants to dominate and that it is constant. I accept that as a resident of [Refugee Camp 1] the applicant has seen considerable generalised violence.
To fund his travel to Australia the applicant borrowed money from his brother-in-law saying that it was for a ‘business’ he was buying into. I accept this as fact.
The applicant departed Palestinian and Israeli borders legally.
The applicant claims that he had one off sexual intercourse with an unknown man not long after arriving to Australia. The applicant claims that it has been his one and only sexual encounter since arriving to Australia. I accept this evidence as fact.
The applicant claims that he got [Illness 1] through this encounter. I accept that the applicant has [Illness 1] based upon the medical evidence provided. He also claims that he will be discovered by Palestinian authorities or the community to have [Illness 1] because he believes that he will be asked to take a test upon return. I put to him that I understood that they tested for HIV/AIDSs but not other diseases. I put to him that blood tests are for specific diseases and not all encompassing. In a post-hearing submission the representative confirmed that there was evidence that tests are undertaken for HIV/AIDS but they were unable to confirm whether any tests took place for [Illness 1]. I find that any claim that he will be tested for [Illness 1] by authorities upon return is speculation.
The applicant also claimed that were he to return he would be forced to marry at which stage he would be expected to undertake a blood test. Evidence was provided that the Palestinian authorities test for [other disorders]. I accept that such testing occurs. No evidence was provided nor could be found that such tests identify [Illness 1].
Evidence was provided of premarital testing of genetic disorders as well as [other medical conditions] in Saudi Arabia, a company in the UAE that offers pre-marital testing which includes [Illness 1], a study on premarital care in an Egyptian university and compulsory pre-marital testing for [Illness 1] in [Country 1].
The applicant also claimed that [details deleted] or if he is sick then the doctor will examine [him]. He claimed that if you have a problem others will know the next day. I put to him that once [Illness 1] is treated it remains in your blood, but no other symptoms emerge. In response he reverted to the claim that they will find out through the process of getting married. Were he to get married they would ask him to do a blood test.
I read to him from a letter by [the psychiatrist][12] which was submitted by the applicant to the Tribunal. It notes that the applicant had expressed concern that his past infection of [Illness 1] would be easily detected by doctors and all members of society to which [the psychiatrist] wrote, ‘something that all medical staff that he has seen do not agree with.’ He responded that he has already explained his view on that matter.
[12] 1512002 Folio 91
I put to him that he first started seeing a therapist [in] January [and] it wasn’t until the fifth session, which was the month of the hearing, that he discussed with them his sexual activities with men. He explained that he went to the Clinic because they were specialised in [medical conditions]. I asked why he continued to see a therapist for five sessions to which he responded that she made him feel normal.
I put to the applicant that I didn’t understand why he was having sessions with her as he didn’t mention homosexuality for four sessions until [June]. He responded that he wanted to hear her thoughts on homosexuality. She suspected that he is gay, according to the applicant, and he only told her about the incident on the fifth session. Through the earlier sessions he learned from her that people don’t hate gay people and after some sessions he started to believe her.
I put to him that the timing of his admission and discussion with [his therapist] is suspicious as he was invited to a hearing by the Tribunal on the 26 May while he admitted to his therapist [in] June to being homosexual despite being with the therapist for four months prior to that since [January]. He responded that he was thinking about it and that it would be his last chance to say everything because he was very scared to talk about it. I accept his claim of there being no nefarious intentions behind the timing.
I asked the applicant about how he came to the realization that he was gay. He explained that at school they were divided by gender. When he was in year [grade] or [grade] the school began explaining to students about sex. He talked to a male friend about this and then they had sex together. One day someone saw them going to a local hill and this person went to talk to his father and said that he doesn’t know what they do but they always go to this hill together. After a while someone told his father that they engage in homosexual activities. Once his father learned of this he pulled him out of school and didn’t allow him to go out with anyone as it affected his father’s reputation. This occurred while he was in year [grade]. I accept the applicant’s narrative of these circumstances.
His relationship with his friend lasted for about two years. After that he would meet with him every now and then but the applicant did not have any other relationships with other men. Nor has he had a heterosexual relationship with a woman. I accept this as fact.
He claims that his father knew about his homosexuality and that he had taken him out of school because of it and would beat him and wouldn’t allow him to go out with his friends because his father used to think that he would continue with his homosexual activity. Other than his father, no one else knows. He claims that his brothers would kill him if they knew that he was gay. I accept the applicant’s narrative of his sexual experiences.
I asked if he had told anyone in Australia that he was gay. He responded that he hadn’t as he believes that they wouldn’t want to be around him. I accept this as fact.
The applicant claimed that he had experienced trouble from a family of whose daughter he was suspected of having an inappropriate relationship with. He provided evidence of an attack he sustained which was translated with the title, ‘Report of Proceedings relating to the Crime Instrument’. The applicant stated that he didn’t know the accused, [Mr A]. The report explains that [Mr A] was accused by the applicant of putting a knife to his throat. The police report concluded that [Mr A] did not have a knife in his possession. The applicant claimed that [Mr A] had threatened him in a way that inferred he was being targeted. The applicant was unsure what it related to or who [Mr A] was. He suspected that it may have been related to problems with the family of the girl, though, at the time he and his brother were having an inheritance dispute (see below) and it could have been related to that issue also. I accept that the applicant was threatened, though, based upon the police report I do not accept that a knife was involved.
The applicant also identified a fear of return based upon an ongoing family inheritance issue following the death of his grandfather that began in 2013. He couldn’t recall clearly how it started but he became involved when his brother was beaten and taken to jail because he had staked a claim on an inheritance. When his brother was in jail the applicant wanted to help and so he found a lawyer to represent him. The applicant claims that when the other party in the dispute, a closely related family, found out that the applicant had become involved they attacked him and subsequently there was an attempt to run him over with a car. He was taken to the hospital and then the police instructed him to refer the matter to the court. He made a statement to the Police which then went to the public prosecutor and to the court. I accept that the applicant was involved in an inheritance dispute that began with his brother being beaten and evolved as described above including the applicant making statements to the police following an attack and nearly being run over by the opposing family.
The applicant provided the police report in Arabic of this incident and the public prosecutor’s report which was translated into English and provided to the Department. The report notes, ‘Upon conducting an investigation, the prosecution believes that the act committed by the defendant is considered an offense…I decided to charge the defendant with the above mentioned charges and to refer him to the Magistrates Court for trial.’ The person charged, [according] to the applicant is his cousin’s son.[13]
[13] See statutory declaration dated [in] June 2017 in the Tribunal file at [79b]
The dispute continued with the applicant claiming that he was again attacked and that he was accused and found guilty of forging a cheque which he believes [his cousin’s son] did to frame him. The applicant said that he spent a week in jail for this and was told by the court to apportion an amount on a monthly basis to repay the debt which amounted to [an amount of] shekels. I asked if he has any documentation to support this claim to which he said that he doesn’t. I asked him to try to access this but none were provided. I do not accept that the applicant was framed and I do not accept that the applicant has entered an agreement with the courts to repay [an amount of] shekels.
The applicant stated that since he left Palestine he hasn’t asked about the inheritance situation. He added that a while ago he spoke to his mother and she told him that they burned his brother’s car and that his brother went to prison. This brother, according to the applicant, has been in jail ‘quite a lot of times’. The applicant said that he heard that his brother had fled to Israel and then came back. He claimed that he was in jail often because of the problems with his relatives. I asked how he knows that it’s related to the inheritance to which he responded that his mother told him that he was taken because of the dispute. I asked if he knew how he ended up in prison the other times, to which he responded that he doesn’t know. I accept that the applicant has not asked about the situation since he arrived to Australia. I also accept that the applicant’s mother told him that his brother’s car was burned and that the applicant’s brother was jailed for a reason related to the inheritance dispute but place little weight on this evidence for the reason that it is hearsay and I am unable to test his mother’s credibility.
I asked about the other brother who lives in the West Bank and if he faced any problems. The applicant said that he had some troubles when he returned after studying in [City 1]. Since then that other brother didn’t want to hear what is happening with the inheritance issue. I accept that the other brother had some trouble once and since then has not engaged with the inheritance issue.
The applicant submitted a document that he claims was forged by the opposing family with whom his brother has a dispute and that it is a forged document showing that his brother owes them money. The applicant provided no evidence that it was forged including no explanation on how he came to know it was forged other than that it was claimed to be a forgery by his brother. Without any such evidence I accept the document on face value and do not accept that his brother was framed. While the applicant is a credible witness on this matter he is making a speculative claim without being fully appraised of the circumstances and as such I do not give any weight to the claims associated with this document.
Consideration of claim – [Illness 1] and homosexuality
The applicant fears being identified as gay because they are harmed by religious fanatics and any action against them is met with silence by the authorities. He claims that there are no protections for gay people.
I read to the applicant information from the Department of Foreign Affairs (DFAT)
DFAT assesses that LGBTI individuals in the Palestinian Territories face a moderate risk of official discrimination and a moderate level of societal discrimination.[14]
The applicant responded that reading something is different to living it and that in the camp it is different to other areas. In his camp religion controls everything and they are fundamentalists. They will kill for such reasons.
[14] Department of Foreign Affairs, DFAT Thematic Report Palestinian Territories, 15 March 2017 at [3.62]
I read the following:
Traditional, conservative values continue to preclude most LGBTI people from disclosing their sexual orientation or gender identity. LGBTI individuals would likely hide their identity beyond their immediate family. They would often conceal it from their families as well.[15]
[15] Department of Foreign Affairs, DFAT Thematic Report Palestinian Territories, 15 March 2017 at [3.62]
The applicant responded that all gay people have fled the country otherwise they would be killed. He emphasized that it is extremely difficult for any gay person to live there. He said that anyone, even [age] year old child who is carrying a weapon, will kill any gay man he can see on the street because they won’t consider gay people as human beings. They will accept such a killing because it is killing someone who is doing bad stuff against religion.
I note in the DFAT report assesses that there are isolated examples of official discrimination for the reason that the authorities would first have to acknowledge the existence of LGBTI people.[16]
[16] Department of Foreign Affairs, DFAT Thematic Report Palestinian Territories, 15 March 2017 at [3.60]
In the applicant’s mind, that he has [Illness 1] is a visible indicator that he is gay. I asked him if he accepts that heterosexual people can get [Illness 1]. He expressed his understanding of that fact. I put to him that he is presenting two issues as if they are interrelated, firstly, whether anyone would find out that he has [Illness 1] and secondly, that he is homosexual. I asked whether he saw them as being related and suggested that were people to find out that he has [Illness 1] they would presume that he had sex with a woman. He responded that it doesn’t matter, man or woman, he is sick. I reemphasized that one implies immoral behaviour with a woman and the other homosexuality. I put to him that for them to be conflated I would have to be convinced that the community in Palestine would presume that anyone with [Illness 1] is a homosexual. No response was provided and no information was included in the post-hearing submission to support a view that there is a perception of [Illness 1] being associated with homosexuality.
Evidence provided by the applicant from the consulting psychiatrist notes that it is the opinion of ‘all medical staff that he has seen’ that it would not be detectable.[17] I accept the medical evidence provided and find that the applicant’s [Illness 1] would not be detected unless specifically tested for. In the absence of independent evidence being provided that Israel or the Palestinian Territories authorities test for [Illness 1] I find that the applicant will not be identified as having [Illness 1].
[17] Tribunal file folio 47b
The applicant also fears being forced into marriage that a pre-condition of the government or the woman’s family will be to test him for a broad range of STDs including [Illness 1]. Having reviewed the evidence provided by the applicant on pre-marital testing of [Illness 1] in the Middle East only [Country 1] appears to have a compulsory regime, though I give this little weight as each country has its own health priorities and whether one or more adopt compulsory [Illness 1] testing is of little value in determining whether Palestine does or will do in the reasonably foreseeable future. I also note that not all pre-marital testing in these other countries includes tests for [Illness 1] and as such it is mere speculation to suggest that based upon the availability of testing and the uptake by some families in other Middle Eastern societies to test for [Illness 1] therefore in Palestine a potential wife’s family would require [Illness 1] testing of the applicant. I address the question of forced marriage further below.
Regarding his claim of fearing harm for being homosexual I first turn to the law to lay out the parameters.
There remains a live question as to whether the principle discussed in the Refugees Convention context in Appellant S395/2002 v MIMA, namely, that a person should not be expected to modify certain kinds of conduct to avoid persecutory harm, extends to the assessment of complementary protection. In SZSWB v MIBP, the Federal Circuit Court held that the Tribunal was required to consider whether the applicant’s modified conduct was influenced by the threat of harm he faced, which was inconsistent with the International Covenant on Civil and Political Rights, before finding that he did not face a real risk of significant harm.[18] This was on the basis that there is no reason why the principle in S395 should not apply to the Conventions which support the complementary protection provisions of the Act in the same way as it applies in the Refugees Convention context.[19] This reasoning was subsequently adopted in MZAIV v MIBP.[20] However both of these judgments were overturned on appeal on different reasons without further consideration of this issue. Most recently in BBS16 v MIBP the judge found that the decision-maker erred in failing to consider whether there was a relevant denial of rights under the ICCPR, and whether the applicant’s non-exercise of those rights was a consequence of the denial and the risk of harm resulting from an attempted exercise of them.[21] At the time of this decision BBS16 was being appealed.
[18] SZSWB v MIBP [2014] FCCA 765 (Judge Driver, 5 May 2014) at [68].
[19] SZSWB v MIBP [2014] FCCA 765 (Judge Driver, 5 May 2014) at [65] and [68] applying Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [43]
[20] MZAIV v MIBP [2015] FCCA 2782 (Judge Harland, 13 October 2015) at [24]
[21] BBS16 v MIBP [2017] FCCA 4 (Judge Driver, 1 February 2017) at [75]
The representative argued by way of a post-hearing submission that Article 26 of the ICCPR sets out the grounds of discrimination as including race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status. It was put to the Tribunal that ‘other status’ includes sexual orientation based upon the interpretation of the United Nations Human Rights Committee. I accept that sexual orientation can be a ground of discrimination in the ICCPR based upon the evidence compiled by the Australian Human Rights Commission.[22]
[22] A full list of references is included within the report: Australian Human Rights Commission, Marriage equality in a changing world, September 2012. p 2 available at accessed on 14 September 2017
In proceeding I will first consider whether the applicant faces a real risk of significant harm. If I find that he does I will then turn my mind to consider whether the ‘applicant’s non-exercise of those rights was a consequence of the denial and the risk of harm resulting from an attempted exercise of them’, an approach outlined by Driver J in BBS16.
In considering whether the applicant faces a real risk of significant harm I put to him that he claims that he wants to live a homosexual life and marry but at the same time he hasn’t told anyone in Australia despite knowing that in Australia there isn’t a problem with homosexuality. He responded that he is really afraid to tell anyone. I put to him that in Australia it’s not illegal and that it’s largely seen as normal within society and yet he has fears while there is no reason to fear. He explained that being born overseas means that others have power over him in Australia and that he has no one to protect him. He fears that people will think that he is a bad man. I rephrased and asked under what circumstances he would ever live an open life. He responded by saying that he would live an open life under those circumstances where he is protected. I put to him that here in Australia he is protected. He responded that he is concerned that he will be returned.
The applicant stated that he feared harm from his family were they to know that he is homosexual. I asked why he would have to tell his family that he is homosexual or had a homosexual relationship in Australia. He responded that he fears his family and wakes up seeing them with knives ready to cut him.
I put to him that many Palestinian men don’t marry because they don’t have the money to marry and asked him why he thought that he would be treated differently by just refusing to marry. He responded that people marry when they are 18-20 years old. If he tells his father that he doesn’t want to get married then that will confirm that there is something wrong. I put to him again that they don’t marry because they don’t have money and don’t understand why he would be treated differently. He responded that his parents will marry him to someone and if he refuses they will think that he has a disease.
In considering whether the applicant faces a real risk of significant harm I turn to country information as it applies to the circumstances of the applicant. Information from a 2008 report Nowhere to run: Gay Palestinian asylum-seekers in Israel was provided to the Tribunal. The report states in its conclusions:
Gay Palestinian men whose sexual identity is exposed are targeted for discrimination and persecution in the Occupied Palestinian Territories, including ostracism, verbal and physical abuse from their immediate society (family, friends, acquaintances), and in some cases danger to their lives. Gays are also targeted by the Palestinian authorities. There are credible accounts of detention and torture by PA police and security authorities. In the current political context, gay identity often leads to a secondary charge of collaboration with Israel, which adds an additional risk factor. Efforts to improve human rights conditions in the OPT should include steps to combat homophobic violence both by official police and private parties within Palestinian society.[23]
Based upon this report along with other news articles[24] I accept that the harm the applicant claims to face amounts to significant harm.
[23] Korgan and Ben-Dor, Nowhere to Run: Gay Palestinian asylum-seekers in Israel, Tel Aviv University, 2008 p45
[24] Gay Palestinians Are Being Blackmailed Into Working As Informants, Vice, 19 February 2013 available at accessed on 14 September 2017
The question remains as to whether the applicant faces a real risk of significant harm. The above cited Korgan and Ben-Dor report specifically states, ‘Due to the small number of interviewees, we have not attempted to draw any conclusions about the scale of persecution against sexual minorities in the OPT.’[25] In addition, the methodology clearly shows the limitations of using it to evaluate the level of risk:
This report is based on in-depth interviews conducted over a period of four years with several gay Palestinians. We have not attempted to provide a full description or evaluation of the situation of sexual minorities in the Palestinian Occupied Territories. The number of fully documented cases is relatively small (10 cases). However, LGBT organizations which were consulted during the writing of this report (in particular Aguda: Israel’s Lesbian, Gay, Bi-sexual and Transgender Association and the Jerusalem Open House) confirmed they are aware of the phenomenon described in it and have also encountered similar cases over the years. PA-controlled areas and analyzes Israel’s obligations to asylum-seekers under international law.[26]
[25] Ibid 8
[26] Ibid 7
Instead, I revert to the Department of Foreign Affairs report on this matter:
DFAT assesses that LGBTI individuals in the Palestinian Territories face a moderate risk of official discrimination and a moderate level of societal discrimination. The level and frequency of discrimination in the West Bank is not dependent on the socio-economic status or urban versus rural location of those involved.
While not specifically referencing a camp I take the passage to implicitly make the point that discrimination does not vary by geographic location. As such I do not accept the applicant’s argument that by living in a camp he is more at risk.
The applicant claims that he is cautious of expressing his homosexuality because he is fearful that he will be identified and his family and others informed. This was reinforced in his preference firstly for a female interpreter and secondly by his request for his name to be withheld from the phone interpreter. While I accept that the applicant’s behaviour is influenced by fear of harm I also note that he has repeatedly been advised that he has nothing to fear in Australia. When I put to him DFAT information his response was dismissive of its accuracy and persisted to believe that all gay people were killed and none lived in Palestine. This divergence suggests a fear that may not be an objective fear of the actual circumstances in the Palestinian Territories but a subjective fear driven by other issues. I acknowledge that the applicant does not feel completely safe to pursue his sexuality while in Australia for the reason that he fears that he may be required to return and knowledge may spread of his sexual activities from Australia to Palestinian Territories. I place little weight on this argument as I find the opportunity to pursue a discrete lifestyle in Australia would lead to a negligible risk of people who know of him in the Palestinian Territories learning of his sexual activities yet he chose not to. The applicant did not enunciate but it could be a possibility that after the applicant had a homosexual relationship and acquired [Illness 1] he is afraid to engage in such behaviour again for fear of obtaining other diseases or spreading his own. Even given this to be the case the applicant’s actions in Australia remain representative of those he would adopt were he to return as the psychological mindset would remain unchanged. I find that the applicant’s three years in Australia to be sufficiently expansive to allow someone to overcome their fear, change their behaviour and pursue a new lifestyle. For this reason I find that his behaviour in Australia is indicative to how he would live his life in the Palestinian Territories.
The applicant has lived in Australia for over three years. He has not found a partner, does not attend gay social venues, is not engaged with the gay community and has not told any friends that he is gay. That he hasn’t done any of these after three years in Australia leads me to conclude that free from fear he is a private person. I find that the applicant would continue to live his life in this manner in the Palestinian Territories into the reasonably foreseeable future were he to return and that his behaviour is not a consequence of the denial and the risk of harm resulting from an attempted exercise of his rights under the ICCPR.
Having determined that he has chosen to live a private homosexual lifestyle I apply this to the contextual country information of the circumstances for gay Palestinians alongside the applicant’s own personal experience and find that the applicant faces a remote risk of significant harm by state or non-state actors as a necessary and foreseeable consequence of removal from Australia to the Palestinian Territories. In making this finding I implicitly find that the applicant as a large and well-built young adult who has the capacity to live an independent life would not be assaulted by his father as he had been in the past when he was a minor.
I have also considered whether the Israeli authorities would identify him as a homosexual and be able to leverage this in such a way so as to use him as a spy. While there are reports of this occurring there is limited information as to the extent. Based upon the applicant’s private lifestyle I find that the applicant will not be identified as homosexual by Israeli authorities. For this reason I find that the applicant does not face a real risk of significant harm for the reason of being blackmailed into acting as an Israeli spy.
Consideration of claim – family threats
The applicant has claimed that he was involved in a family dispute over an inheritance that began in 2013 which I accepted. He claimed and I accepted that he had been attacked by his relatives over this dispute. In considering the level of risk and type of harm he faces I will consider the past events only so much as to inform a forward looking perspective.
When asked about the current situation of the inheritance dispute, the applicant said that he is not aware of where it stands. It is agreed that the dispute began in 2013 and the courts appear to have sided with the opposing family as early as 2014. I also accept as fact that he had been physically attacked by a relative and that they tried to run him over. I also note that at every stage the police were available to him. The applicant provided documentary evidence of this. Furthermore, the prosecutor’s office took up his case which is supported by the documentary evidence he provided. But then he claims that the courts threw out his case without providing any documentary evidence to support this claim. He also claims that there is corruption in the courts but provided no evidence of such claims. His only justification for this view was that he expected the judge to charge the man who assaulted him but when this didn’t happen he felt that the judge was biased and working for them. While it is possible that the opposing family are influential such that they have corrupted the judicial system it is also possible that the courts upon hearing the matter found in favour of the opposing family. Not having being provided any court documents on this case to verify the claimed outcome and considering the speculative nature of the applicant’s claim together with the absence of any corroborative evidence I reject his claim that the opposing family have manipulated the courts to prevent him from accessing justice.
On balance, considering that the applicant’s mother claims that his brother has been harmed recently and taking into consideration his past experiences in relation to this dispute I find that the applicant faces a real risk that the opposing family may pursue the applicant on the basis that the dispute is not settled. I also find that the applicant has to date and will in the future be able to access state protection as I have not accepted the applicant’s claims that the judiciary has been corrupted. For this reason I find that the applicant could obtain from the authorities protection such that he would not face a real risk of significant harm.
Consideration of claims – being perceived as an Israeli spy
The applicant fears that he will be seen as a traitor and an informant because he was freely able to leave the country. He fears being fingered by the opposing family in the inheritance dispute which would then lead to being targeted by one of the anti-Israeli armed militias.
I put to him that it is very difficult for me to believe that just because someone accuses another person of being a spy that these groups will then identify him and assassinate him. I put to him that he could tell his brother to tell people that his cousins are spies. He responded that his cousins didn’t travel so they haven’t anything to prove that they could be spies unlike him which suggests that he fled. He claims that he heard from his mother that when he left to Australia his relatives started talking about him being a spy. I put to him that people leave Palestine all the time, they go to Jordan, Europe elsewhere, why is his case different. He said that because of the problem with his extended family and the inheritance issues it is a risk.
I read to the applicant from a DFAT report:
Contacts also told DFAT that even a rumour or suggestion that someone was passing information to Israel or was supportive of Israel could taint them, and their relatives, and would result in them being ostracised and distrusted by their community. The likelihood of being a suspected collaborator increases based on the amount of contact an individual has with Israeli authorities and the intensity of this contact. The risk would be higher for Palestinians in Israeli detention.[27]
I put to him that being ostracised and distrusted doesn’t amount to serious or significant harm. He responded that what I read is completely different to what is the experience. They are very strict and fundamentalist there and very severe. People could approach the person being accused of being a traitor and call for their death. At any time someone could approach him and accuse him of speaking to the Israeli authorities.
[27] Department of Foreign Affairs, DFAT Thematic Report Palestinian Territories, 15 March 2017
He also claimed that he will be questioned by the Palestinian Authority upon return. They will suspect him of being affiliated with the Israelis because he was able to get a visa to leave.
The applicant has expressed a fear of being identified as a traitor and targeted by anti-Israeli militia, an outcome that I accept amounts to significant harm. The applicant has not presented any evidence nor has the Tribunal found evidence to suggest that someone in his circumstances would face a real risk of such an outcome other than claims by his mother that his relatives were talking about him being a spy and fears that the opposing family could make such an accusation. I place little weigh on the hearsay evidence of his mother for the reason that I am unable to test his mother’s credibility and I find the applicant’s fears of the opposing family identifying and then using the strategy of accusing the applicant of being a spy as speculative. As such I find that the applicant faces a remote chance of significant harm for the reason of being accused by the opposing family or his wider relations of being a spy.
I do not accept that the Palestinian Authority will suspect him of being affiliated with the Israelis because he was able to get a visa for the reason that his actual reason is well supported by documentation—in other words he can explain why he left by telling the truth and providing the evidence and under those circumstances I do not accept that he faces a real risk of significant harm.
Consideration of claims – generalised violence
The applicant was assaulted in July 2012 by people he referred to as Jewish fanatics. He also claims to have witnessed various forms of violence including killings and shootings. The Department of Foreign Affairs summarises the violent confrontations over the years as:
There has been repeated conflict between Israel and the Palestinians and Arab countries since 1948, with periods of intense hostilities during the Six Day War (1967), the Yom Kippur War (1973), the First Intifada (1987-1991), the Second Intifada (2000-2005) and Israel-Gaza conflicts (2008, 2012 and 2014).[28]
[28] Department of Foreign Affairs, DFAT Thematic Report Palestinian Territories, 15 March 2017 at [2.52]
Specific to the West Bank in recent years DFAT writes:
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.[29]
[29] Department of Foreign Affairs, DFAT Thematic Report Palestinian Territories, 15 March 2017 at [2.53]
I accept that the harm suffered by the applicant in 2012 and the violence he has witnessed alongside that described by DFAT amounts to significant harm. I now turn my mind to whether the applicant faces a real risk of such harm.
The applicant lives in [Refugee Camp 1], West Bank. Country information suggests that this location was severely affected during the second intifada but according to one source, UNRWA, while incursions still take place they are now on a more ‘irregular basis’.[30] For this reason I do not accept that the applicant’s place of residency raises his individual exposure above that of the general population. Section 36(2B)(c) notes that there is taken not to be a real risk that a non-citizen will suffer significant harm if the ‘real risk is one faced by the population of the country generally and is not faced by the non-citizen personally’. In this instance the significant harm that could occur to the applicant including for example a repeat of the attack by ‘Jewish fanatics’, which he acknowledged was random, does not amount to a real risk of significant harm for reasons of s26(2B)(c), namely that it is a risk faced by the population of the Palestinian Territories generally.
Other claims not expressly raised
[30] [Source deleted].
The applicant has not expressly identified a claim upon the basis of an inability to obtain and maintain a livelihood based upon his [injury] and having completed high school nevertheless I now turn my mind to it. At the hearing I put to him that I saw [that] it appeared functional. He explained that he uses [details deleted]. [Details deleted]. I find that the applicant, having worked while in [Australia], will not be hampered in finding and maintaining work as any other Palestinian male who has not completed high school. For this reason I find that the applicant does not face a real risk of significant harm for the reason of having limited usage of his right hand.
The applicant borrowed money from his brother-in-law to fund his travel to Australia. No suggestion of a dispute between him and brother-in-law was raised such that this loan would escalate in a way that it leads to a real risk of significant harm for the applicant. Without any evidence that it would I do not accept that the applicant faces a real risk of significant harm for the reason of having an outstanding loan from his brother-in-law.
The applicant has claimed that he fears being forced into an arranged marriage. The applicant is a young adult who has a capacity to earn a livelihood. He has established roots in a community in which he was educated and raised. While his family could put pressure upon him to marry someone I find that such pressure would not amount to significant harm in this applicant’s circumstances and that he would not succumb. I also find that while his father may harbour the knowledge of his son’s homosexuality I do not accept that he would use it to leverage his son to marry or wield such information in any other way as the risk to his and his wider family’s honour would be at stake.
The applicant was accused of having an inappropriate relationship with a girl whose family he suspected subsequently organised a man to threaten him. I accepted that these events occurred. In considering whether the applicant upon return to the Palestinian Territories would in the reasonably foreseeable future face a real risk of significant harm from the family I first turn to past events as an indicator of possible future harm. That at the time of the rumours of the inappropriate relationship the applicant was met by a man who threatened him without any further action being taken I find suggests that at that time the severity of the family’s vendetta was low. Considering that several years have passed since that event and that the family’s motivation to harm him amounted to a man threatening him with no follow up action leads me to not accept that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of return to the Palestinian Territories.
Cumulative
100. Having found that each of the claims listed above do not meet the threshold of a real risk of significant harm I now turn my mind to consider them cumulatively. The specific circumstances of this applicant do not lend themselves to bundling all of the claims together. In other words, that he has an injured arm does not influence the risk he faces of state or non-state actors finding out that he is homosexual. Instead, I have considered those permutations which exacerbate or enliven risks or extenuate the harm. The one posing the greatest risk to the applicant is the opposing family accusing the applicant of being a homosexual. While this is possible I find that the risk that this will occur is not a real risk for the reason that the applicant is not a central party to the dispute. His problems arose when he supported his [brother]. That the applicant has shown no interest in pursuing it while he is in Australia and his [other brother] has not faced further problems following his return leads me to conclude that he would not be pursued by the opposing family were he to return. All other permutations I find to be of a lower level of risk.
101. Having concluded that the applicant is excluded from consideration of 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).
102. 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
103. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Denis Dragovic
Senior Member
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