1514520 (Refugee)

[2016] AATA 4822

1514520 (Refugee) [2016] AATA 4822 (23 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514520

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Giles Short

DATE:23 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies paragraph 36(2)(a) of the Migration Act.

Statement made on 23 December 2016 at 10:07am

CATCHWORDS

Refugee – Protection visa – Lebanon – Religion – Jehovah’s Witness – Divorced woman – Proselytising – Legally recognised marriages – Threats of physical harm – Limits on religious practices – Forced from homes

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91R, 499
Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1

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

INTRODUCTION

1. [The applicant] is a citizen of Lebanon.  She has said that she comes from Beirut and that she left Lebanon because she was unable to practise her faith as a Jehovah’s Witness freely.  Her application for a protection visa was refused by a delegate of the Minister for Immigration and she has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issue in this review is whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Lebanon.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Lebanon?

   [The applicant’s] claims

2. [The applicant] is aged in her [age range].  She has said that she is divorced and that she has two young adult daughters who remain in Lebanon.  She has said that in Lebanon she was self-employed as [an occupation].  In her application for a protection visa she said, as referred to above, that she had left Lebanon because she had been unable to practise her faith as a Jehovah’s Witness freely.  She said that she had had to adopt significant self-imposed restrictions in practising her faith, for example limiting her preaching activities, limiting her fellowship with other Jehovah’s Witnesses and limiting her worship.  She said that if she were to practise her faith in the way which was required she would encounter hostility and she would risk being physically abused by people who were hostile to Jehovah’s Witnesses.  She said that she would also be legally barred from privileges which other citizens took for granted including worshipping in a Kingdom Hall, being married under Jehovah’s Witnesses’ rites, burial and other privileges.  She said that the authorities would not protect her as they were hostile to her religion.

3. [In] May 2014 [The applicant’s] representatives produced to the Department a copy of an undated letter from a Jehovah’s Witness congregation in [her local town] in Lebanon confirming that [the applicant] had been a baptised publisher in the congregation since [February] 1987 and that she shared regularly in all the preaching activities and attended the meetings on a regular basis.  They also produced a copy of a letter dated [in] May 2014 from the [Suburb 1] Congregation of Jehovah’s Witnesses which said that since her arrival in Australia [the applicant] had been attending meetings twice a week and participating in all aspects of the holy Christian field service.  The letter said that it would be very hard for her to do this in Lebanon without living in fear and experiencing prejudice and emotional distress.  The letter said that the authorities in Lebanon would not be willing to protect her since she was known to be a Jehovah’s Witness.  [The applicant’s] representatives also produced a copy of a ‘No Blood’ Advanced Health Care Directive signed in Australia [in] May 2014.

4. [The applicant] was interviewed by the primary decision-maker in relation to her application [in] September 2015.  A further letter from the [Suburb 1] Congregation of Jehovah’s Witnesses dated [in] August 2015 was produced at the interview.  The letter is in almost identical terms to that dated [in] May 2014 except that it provides some examples of holy Christian field service (for example witnessing from door to door, making return visits etc) and, where the previous letter said that the authorities were not willing to protect [the applicant] since she was known to be a Jehovah’s Witness, this letter said that she had faced very hard times within the community and from the authorities since she was known to be a Jehovah’s Witness.

5. At the interview [the applicant] said that everything in her application was correct.  She said that her mother had belonged to the Orthodox Church but had converted to the Jehovah’s Witness faith when she ([the applicant]) had been [age] or [age] years old and had taken her along to Jehovah’s Witness meetings.  [The applicant] said that she had been baptised as a Jehovah’s Witness [in] February 1987 and that her ex-husband had also been a Jehovah’s Witness but he had left the faith three or four years after they had married.  She said that her Lebanese Civil Status document stated that she was an Assyrian Orthodox Christian because she and her husband had had to convert to this faith in order to divorce each other (since Jehovah’s Witnesses are not formally recognised by the Lebanese authorities).  [The applicant] was able to answer some questions about the fundamental tenets of the Jehovah’s Witness faith and the delegate accepted that she was a Jehovah’s Witness as claimed.

6. [The applicant] said that in Lebanon there had been two meetings of the Jehovah’s Witnesses each week and she had attended both.  She said that she had preached and witnessed in Lebanon and she had sometimes encountered real violence.  She said that once they had knocked her with the butt of a pistol and another time they had drawn a weapon on her.  She said that they had pushed her to the ground and they had poured dirty water on her.  She said that they had had to be careful who they preached to and that she had not been able to distribute Jehovah’s Witness magazines openly.  She said that her children had also been subjected to some violence at school and on one occasion they had been expelled from a school because they had not wanted to practise what the school had wanted.  She confirmed that both her daughters were Jehovah’s Witnesses.

7. [The applicant] said that she had had to change her address seven times and each time she had been kicked out because she was a Jehovah’s Witness.  She said that once she had been attacked by a crowd in a Muslim community.  She said that the neighbours had banned their children from playing with her children because they had found out that she was a Jehovah’s Witness.  She said that the neighbours had told other people not to have anything to do with them because they were blasphemous.  [The applicant] said that after she had left Lebanon her landlord had asked her two daughters to move out of the apartment she had been renting but she said that this had been because the apartment building had been sold and some of the tenants had been asked to move out.  She said that she and her daughters had been living in this apartment since 2001.

8. [The applicant] said that she had visited people’s homes in the course of her [work] and that her clients had known that she was a Jehovah’s Witness but had accepted this so long as she did not talk about her religion.  She said that her clients had come from a mixture of religious backgrounds, both Muslim and Christian.  She said that some clients had reacted badly to her being a Jehovah’s Witness and had asked her to leave.

9. [The applicant] said that if she went back to Lebanon she would not be able to witness or to attend her congregation freely.  She said that she could face persecution if people found out that she was a Jehovah’s Witness.  She said that they heard a lot of abuse from others.  She said that she would not enjoy the same freedom as here if she went back to Lebanon.  She referred to the fact that the government did not recognise the Jehovah’s Witnesses and she said that they were not protected by the government.  She said that if you asked for assistance no one would help you.  She said that many times she had not been able to sleep at night because of the fear that someone might attack her and her daughters.  She said that she had not had the opportunity to flee Lebanon earlier.

10. [The applicant] said that it was not the Government of Lebanon which was persecuting Jehovah’s Witnesses but the society.  She said, however, that the government could not offer protection.  She said that when, for example, she had been asked to leave when she had been doing her work, the government had not had any interest in this.  She said that there was emotional pressure on her and on her children.  She said that the Jehovah’s Witnesses met in people’s homes.  She said that when she had told her daughters about the freedom here they had been quite excited for her.  She said that her daughters were asked all sorts of questions at university.  She said that Christians and particularly Jehovah’s Witnesses were being threatened in the current situation in Lebanon.  She said that being a divorced woman and a sole parent could be quite difficult.

11. On 2 December 2016 [the applicant’s] representatives produced to the Tribunal copies of a ‘No Blood’ Advanced Health Care Directive signed [in] April 2016 and the biodata page of a new passport issued to [the applicant] [in] 2016 (together with a copy of the biodata page of her old passport).  They also produced a further letter dated [in] November 2016 from the [Suburb 1] Congregation of Jehovah’s Witnesses which is in identical terms to the letter dated [in] August 2015 produced to the Department.  They also produced a statutory declaration from [Mr A] who said that he had known [the applicant] for a long time, that she had always been a Jehovah’s Witness, that he knew that she had suffered for her faith because of discrimination against her as a Jehovah’s Witness and that her daughters had suffered similar experiences.  He said that he believed that she would be subjected to danger, physically and emotionally, if she returned to Lebanon.  [The applicant’s] representatives also produced a letter from [Mr B], an elder of the [Suburb 1] Congregation of Jehovah’s Witnesses, who said that he would be attending the hearing before the Tribunal as a witness in order to give more details about the treatment of Jehovah’s Witnesses in Lebanon.

12. In a brief submission to the Tribunal dated 5 December 2012 [the applicant’s] representatives referred to her claims.  They submitted that Jehovah’s Witnesses in Lebanon practised their religion in a very restricted manner, that they met in secret locations and that they limited core tenets of their faith including preaching.  They submitted that Jehovah’s Witnesses were not protected by the authorities because their preaching activities were regarded as troublemaking.  [The applicant’s] representatives referred to no independent evidence in support of their submissions.  They submitted that if there was little evidence of the persecution of Jehovah’s Witnesses in Lebanon this was because of the self-imposed restrictions on their activities.

    Discussion of [the applicant’s] claims

13. At the hearing before me [the applicant] said that her [daughter] had got married and was living with her husband in [location].  She said that her other [daughter] was living with her own widowed mother in [a different town] in Beirut.  She confirmed that both her daughters were Jehovah’s Witnesses as were her mother, [and other relatives].  She confirmed that she had been [self-employed] in Lebanon.  She said that she was not working in Australia.

14. I asked [the applicant] how she practised her faith now she was in Australia.  She said that she did preaching and she attended her meetings with freedom.  She said that this had been what she had been unable to do in Lebanon.  She said that she attended meetings at a Kingdom Hall twice a week.  She said that when she had first come she had engaged in preaching on a daily basis but now she did this twice a week or when she had the opportunity.  She said that usually she preached to people who spoke Arabic because she did not understand English.  She said that they gave them a list of addresses of people who were Arabic-speaking and they went and knocked on their doors, knowing that they were Arabic-speaking.  She said that when she met someone, for example when shopping or having coffee, she was not afraid to express her faith or to tell people about it.  She said that she also distributed Jehovah’s Witnesses literature which she had not been able to do in Lebanon.

15. I noted that [the applicant] had produced evidence that in Lebanon she had also been attending meetings of the Jehovah’s Witnesses.  She confirmed that they did not have meeting places named Kingdom Halls in Lebanon but that they met in people’s private houses.  She said that they had been so careful and that they had not talked about it in the street.  She said that they used to be attacked when they had been there so they had had to cancel the meeting or they had had to say that there was no meeting in those houses.  She said that some of the brothers had had their cars broken and some people had yelled and abused them.  She said that they would go to these meetings two by two so no one would feel that they were going to attend a meeting and give them problems.  She said that they had not made any noise so that the neighbours would not notice and give them problems.  She said that they had not been able to sing and they had only spoken in low voices to avoid problems.  She said that they had moved from one house to another house.

16. I noted that [the applicant] had said that these meetings had been held in people’s private homes and I put to her that they would therefore have been just like any other gathering of friends at a private home.  [The applicant] agreed but she said that sometimes they would know that they were meeting there and the neighbours would give them trouble.  I put to her that this must mean that the neighbours had known that it had been a Jehovah’s Witnesses’ meeting but she had been saying that they had had to go to these meetings two by two and I could not understand that this would have been necessary for what would just have been a gathering of friends at a private home.  [The applicant] said that if they saw them going all together they would know that there was a meeting.  She said that if these people knew you were one of the Jehovah’s Witnesses they started watching you and they gave you trouble.

17. I asked [the applicant] who had known that she was a Jehovah’s Witness.  She said that her parents’ neighbours had known but that at the last place where she had lived, where she had been renting, no one had known that she was a Jehovah’s Witness.  She said that she had lived at this address since 2000 or 2001 or 2002, she was not sure.  She said that, if someone from the Jehovah’s Witnesses came and visited them, then they would know that they were Jehovah’s Witnesses and they would give them trouble and they would start persecuting them.  I put to her that she had said that she had lived at the same address for ten years and no one had known that she was a Jehovah’s Witness.  [The applicant] said they would know from their behaviour, from their clothes or the way they were dressing up.  She said that when she had moved to this address she had stopped interacting with people.  She said that she had been busy working.  She said that she when she had started attending the meetings they had started knowing that she was one of the Jehovah’s Witnesses and she had started to be attacked by the neighbours.

18. I put to [the applicant] that according to the evidence which she had produced she had been attending meetings throughout this period, ever since she had been baptised.  [The applicant] said that this was correct but the meetings had been in different places.  She said that she had changed the way she had gone to meetings because they had had people blocking their way.  She said that when they had seen them they had recognised them from what they had been wearing.  She said that they had had to put their holy books in bags like shopping bags.

19. I asked [the applicant] what had been distinctive about their dress.  She said that they dressed neatly and they did not go and do the activities other people were doing.  She said that people would know from the way they looked, the way they dressed up and the way they behaved and they would start watching them because they would think that you were going to do something when you were attending your meetings and then they would know.  She said that when they dressed up - when she wore a dress and her daughters wore skirts - they would know that they were from the Jehovah’s Witnesses.  I asked how this would distinguish them from any other Christian family in Lebanon.  [The applicant] said that when they were going to attend meetings they would go and change their clothes and then people would know that they were Jehovah’s Witnesses.  She said that everyone in the area knew each other so if you went to your work all day and then you went home to change to attend the meeting they would know.  She said that she had stopped going to a few places because the neighbours had been able to tell that she was a Jehovah’s Witness.  She said that they had also asked her to attend a few of their celebrations and she had not done this.  She said that because they had been in the same area they had been able to sit in their shops and to watch her coming and going.

20. [The applicant] said that she had been kicked out of a few places where she had been living because they had found out that she was a Jehovah’s Witness.  I put to her that she had said that she had lived at the same address since 2000 or 2001 or 2002 and that no one had known that she was a Jehovah’s Witness.  [The applicant] said that in the beginning they had not known that she had been one of the Jehovah’s Witnesses and she had avoided interacting with them to avoid problems.  She said that a few people in the area had not provided her with stuff because they had known that she was a Jehovah’s Witness.  I asked her how they had known.  [The applicant] said that they had known from the people who did the preaching.  She said that it was easy to know in Lebanon.  She repeated that people could tell from the way they dressed up, from their behaviour and because they did not join people in their celebrations and ceremonies.

1. [The applicant] said that people would ask about your religion and if you said Christian they would ask you why you were there and what you were doing there.  She said that some of the neighbours who had known had told everyone.  She said that when you did not celebrate with them and when you did not wear a cross they would start to know that you were a Jehovah’s Witness.  She said that when you behaved well they would want to know why you were like that.  She said that Jehovah’s Witnesses did not swear and they did not use bad language.  She said that they did not do anything wrong and they were good people.  She said that in this way people could tell that they were Jehovah’s Witnesses.

2. [The applicant] said that she had engaged in preaching door to door in Lebanon.  She said that she had preached in all areas because everyone spoke Arabic.  She said that you would be persecuted or you would be under pressure depending on the area to which you went.  She said that she had preached door to door in the area where she had been living in Lebanon but this had been a big area with different nationalities.  With regard to the problems which she had encountered she said that once someone had had a firearm and had started threatening her.  She said that this person had said that he would kill her next time or that he had threatened that he would use his gun if she did not leave and had kicked her.  She said that this had happened a few times.

3. [The applicant] said that her [Relative 1] had tried to baptise her daughter.  She said that sometimes people had thrown dirty water on them and had insulted them and kicked them.  She said that she was scared now.  She said that there had been two people carrying firearms in a few different places when they had been preaching and one of them had hit her on her head with a gun.  She said that they had kicked them and they had said that if they saw them again in that area they would kill them.  She said that on another occasion someone had had a firearm which they had used in the war and this person had also kicked them and had said that if he saw them again in the area he would kill them.  She said that if they had preached in an Islamic area they would have been hit and she had been afraid to go back to this area.  She said that her [Relative 1] had also had a gun and had threatened to use it if she did not leave.  She said that her [Relative 1] had asked her to leave because she had not been joining them in their celebrations.

4. I noted that [the applicant] had said that her daughters and her mother were Jehovah’s Witnesses and I asked her if they were having particular problems in Lebanon.  [The applicant] said that her father had hit her mother a lot because she had been a Jehovah’s Witness.  She said that her mother had been kicked out from her house on more than one occasion.  She said that her mother had not been free until her father had passed away.  She said that for sure they had lots of problems in Lebanon but she was not going to talk about it.  She said that it was up to them whether they were able to handle it or not.  She said that she knew that if her daughters were preaching there they would be kicked and verbally abused.  She said that her daughters had even been kicked out of their school because of their faith.  She said that when she had had to change their school she had been told not to say that they were Jehovah’s Witnesses otherwise they would not be in school.  She confirmed that both her daughters had been able to go to university but she said that they had never said that they were Jehovah’s Witnesses.

5. I explained to [the applicant] that the reason I was asking her these questions was that I had to look at what problems she would have if she went back to Lebanon.  I noted that her mother and her daughters were all still there and they were Jehovah’s Witnesses so it was relevant if they were having particular problems which she wished to tell me about.  [The applicant] said that as long as you were in Lebanon and you were a Jehovah’s Witness you would always have problems.  She said that the problems her mother and daughters were facing were that they would be kicked out from houses and people would talk about them badly, they had to change the places where they met and they would be persecuted.  She said that preaching was not that easy - you had to think a few times before you did it - and they were not able to distribute their magazines with freedom.  She said that if you were going to preach in Lebanon you would be persecuted.  She said that if she went back to Lebanon she would be living in the same fear in which she had been living before.  She said that being a single woman she would not be able to practise her faith as she was doing here and she would be hiding her faith.  She said that as a woman by herself she would not have any protection.  She said that she would have limited freedom and she would not be able to be preaching properly with freedom.  She said that she would have to put limits for her whole life.

6. I noted that the Australian Department of Foreign Affairs and Trade produced reports in relation to countries around the world and the Tribunal was required to take into account the assessments made by the Department.  I put to [the applicant] that the Department said that there were a small number of Jehovah’s Witnesses in Lebanon and that, although the religion was not officially recognised, people were able to convert to that religion, to take part in religious meetings and to preach without attracting official or societal discrimination or violence.[1]  [The applicant] said that they were able to convert in Lebanon but the government would be chasing them and persecuting them.  She said that even if the government ignored it people from other religions would follow them.  She said that as Jehovah’s Witnesses they would be persecuted and they would be hit as she had been but sometimes people would not talk about this.  She said that now a new incident had happened: someone had been watched and then he had been hit and they had torn his books but they were not able to disclose his name or his situation.  She said that they had to keep this secret because they did not want to cause any harm to someone else.

   [1] DFAT Country Information Report - Lebanon, 18 December 2015, paragraphs 3.36, 3.39.

7. I put to [the applicant] that what the Department had said about Lebanon was also supported by United Nations Special Rapporteur on freedom of religion or belief who had said that religious persecution was unknown in Lebanon.  He had said that this had been confirmed by members of non-recognised communities such as the Jehovah’s Witnesses who had told him that they could live in Lebanon safely and in accordance with their religious convictions.[2]  [The applicant] said that they did not have freedom to express their beliefs.  She asked who was going to protect them when they were attacked and when people tried to limit their services and meetings.  She referred to the fact that Jehovah’s Witnesses were not officially recognised.  She said that they had to live carefully, with caution.  She said that she had been living there, this had been the way she had been living and she knew lots of people who were living like this, with caution and with lots of fear.  She said that they had to think where they went to preach.  She said that they had to accept this way because they did not have anywhere else to go.

   [2] UN Human Rights Council, ‘Report of the Special Rapporteur on freedom of religion or belief on his mission to Lebanon’, 30 November 2015, A/HRC/31/18/Add.1, paragraph 25.

8. [The applicant] said that not everyone would give the correct evidence because they were scared in Lebanon.  She said that if they disclosed everything then the government would put limits on the services and activities of the Jehovah’s Witnesses.  I noted that they were not recognised by the government now.  [The applicant] said that you could not tell everything to the United Nations because if the government knew about it they would limit their freedom and their meetings.  I noted that it was because the Jehovah’s Witnesses were not officially recognised that they met in people’s private homes.  [The applicant] agreed but she said that if any reports were disclosed about what they were going through the government would know about it and would minimise or stop their meetings.  She said that the government knew that the Jehovah’s Witnesses existed but it did not recognise them.  She said that if anything happened the government should not know about it and this was why they did not tell everything they were going through as Jehovah’s Witnesses.

9. [The applicant] asked that the Tribunal take evidence from two witnesses.  [Mr A] said that he knew [the applicant] personally from Lebanon because they were somehow related and he knew her history.  He said that she had been persecuted by her own father who used to hit her mother and their children after they had come back from meetings.  He said that although [the applicant] had married another Jehovah’s Witness he had changed his faith and her former husband had also hit her and their children.  He said that it had been hard for her to divorce her husband because she had not been allowed to divorce him under Lebanese law because she was a Jehovah’s Witness and they were not recognised in Lebanon.

10. [Mr A] said that it was normal for Jehovah’s Witnesses to have this persecution from society, not from the government.  He said that in Lebanon there was not one community but many communities.  He said that if you preached in a Muslim area your life would be in danger.  He said that he had experienced this himself.  He said that because of his preaching in Lebanon he had been threatened with death many times, he had been arrested many times and this would happen to any Jehovah’s Witness.  He said that they had high key and low key: some people would suffer persecution more than others, depending on their case, their family, society, and where they lived.  [Mr A] said that he knew that [the applicant] had suffered from her father, from her husband and from the community.  He said that it had been hard for her to make a living because people had not wanted her to come to their houses to work for them because she was a Jehovah’s Witness.  He said that it was a relief for someone who wanted to practise their beliefs to be in Australia because it was scary to practise your faith in Lebanon to the extent that they did not say anything about what they did in Lebanon.  He said that if he were asked if they were persecuted in Lebanon he would not say anything because if this got to the government it would make trouble for all the Jehovah’s Witnesses.

11. I noted that the problems with [the applicant’s] father and her former husband were in the past and that the test I was applying looked to the future.  [Mr A] said that [the applicant] would not be able to practise her faith freely in Lebanon.  She would have to live in fear because of practising her faith.  He said that they had to put limits on what they did or to reduce what they did in order to avoid trouble.  He said that if [the applicant] went back to Lebanon she would again reduce her worship, her preaching and her attendance at meetings.

12. I referred to the fact that the UN Special Rapporteur on freedom of religion or belief had been told by the Jehovah’s Witnesses in Lebanon that they could live there safely and in accordance with their religious convictions.[3]  [Mr A] said that he was not sure who the UN Special Rapporteur had talked to but it was hard for any Jehovah’s Witness to practise their faith freely.  He suggested that maybe someone had been afraid to tell the Special Rapporteur everything.  He said that the elders would usually advise them not to say anything because they did not want to stir society or the government against them.  He said with regard to his personal experience in Lebanon that he had been in Australia for ten years but that before he had left he had experienced persecution: he had been threatened many times and he had been kicked out of houses.  He said that it was normal for them to be kicked out of houses but it was life-threatening.

    [3] UN Human Rights Council, ‘Report of the Special Rapporteur on freedom of religion or belief on his mission to Lebanon’, 30 November 2015, A/HRC/31/18/Add.1, paragraph 25.

13. In response to questions put by [the applicant’s] representative [Mr A] said that it was a requirement for Jehovah’s Witnesses to preach or to witness to everyone, regardless of the other person’s religion.  He said that because of the situation in Lebanon you were in more trouble if you preached to a Muslim so they were scared to go and preach to non-Christians more than Christians.  He said that they did not discriminate - they knocked on all the doors - but because of the situation it was hard.  He said that for Jehovah’s Witnesses it was an order from Jesus Christ to preach to all people, citing Matthew 28:19-20.  He said that if they did not do this because of fear it was against their beliefs.  He said that the real persecution was not from the government itself although they had no protection from the government: the real persecution was from society.  He said that any individual could persecute them and no one would hold them to account because Jehovah’s Witnesses were not protected.

14. [Mr B] said that he served as an elder in the [Suburb 1] Congregation of Jehovah’s Witnesses.  He said that [the applicant] had used some expressions which were exclusively used by the Jehovah’s Witnesses, for example with regard to the dress issue.  He said that other Christian communities in Lebanon were very modest and also had manners and they really respected this but the Jehovah’s Witnesses took extra steps, according to their beliefs, for example with regard to the length of skirts for women and a formal way of dressing for men which was not very usual in Lebanon.  He said that businessmen and businesswomen might dress like this but the Jehovah’s Witnesses dressed in this manner and they could be easily recognised because of this.  [Mr B] said that the level of understanding of some Jehovah’s Witnesses could differ.  He said that [the applicant] had a strong faith but her education had been limited so that she might come across sometimes as not giving the right answer due maybe to her background and the fear she had suffered.  He said that because she was not used to expressing herself and she had been under so much pressure she had not opened up.

15. [Mr B] referred to the fact that the Jehovah’s Witnesses were not officially recognised in Lebanon.  He said that some of them were fortunate enough not to be under persecution due to their own circumstances or the positions which they held in the public sector or who they knew.  He said that some of them might not be aware of what other Jehovah’s Witnesses went through because they themselves were not experiencing this.  He said that, as for the UN Special Rapporteur, these reports were not accurate all the time.  He referred to the fact that the Jehovah’s Witnesses were not recognised and he suggested that the government regarded them as a benign cancer: they were not welcome and communities could act as vigilantes to protect their own churches and their own faith against them.  He said that even if a crime was committed the government would not interfere because there was a deep vacuum in applying the law in many areas in Lebanon.  He said that although the government was not persecuting Jehovah’s Witnesses in an unbearable way, they were not offering them protection.

16. [Mr B] said that being a social worker himself he had met some of the Jehovah’s Witnesses who had been affected by this and it had had an unbelievably negative effect on their lives.  He said that some of them were still suffering emotionally and mentally from the torment they had been through in Lebanon.  He said that he believed that [the applicant’s] fear was genuine.  He said that there was persecution everywhere in Lebanon.  He said that nationalism in Lebanon was a big issue and students at school were under great pressure on days like Flag Day and Independence Day.  He said that conscripts performing their military service were also under pressure and at risk of physical and mental harm.  He said that Hezbollah and its Christian allies were in power in Lebanon and the Jehovah’s Witnesses felt cornered and pointed at.  He said that this was why many Witnesses were fleeing.  He said that there were over 3,000 Witnesses left in Lebanon but many thousands had left for countries like Australia, Canada and the USA as well as countries in Africa and South America.

17. [The applicant’s] representative submitted that, despite what the UN Special Rapporteur on freedom of religion or belief had said in the passage which I had quoted, the report went on to state that the Jehovah’s Witnesses seemed to attract more social and religious prejudice than others because of their beliefs and preaching methods.  He said that the report gave as an example that the group had reportedly been denounced by a priest on a weekly television programme and that there had also been reports that members might be more vulnerable to harassment from the security forces.  He said that the report stated that some Jehovah’s Witnesses interviewees expressed their mistrust of law enforcement agencies and that the continued exclusion of a significant number of religious minorities including the Jehovah’s Witnesses, though currently manifesting in various forms of discrimination, could have more serious implications if the country witnessed another outbreak of sectarian violence.  He said that the report stated that even if religious extremism lost its momentum these minorities would still remain vulnerable until full recognition was achieved.[4]

    [4] [The applicant’s] representative was in fact quoting not from the report of the UN Special Rapporteur on freedom of religion or belief, as he said, but from a briefing prepared for Minority Rights Group International, ‘The leaves of one tree: Religious minorities in Lebanon’, December 2014, quoted in one of the unpublished Tribunal decisions which were subsequently produced, [Case number 1], 1 April 2016.

18. [The applicant’s] representative submitted that this accorded with [the applicant’s] claims that, given the lack of protection afforded to the Jehovah’s Witnesses, they had to resort to self-imposed restrictions rather than relying on the authorities.  He also referred to a submission made by the European Association of Jehovah’s Witnesses in March 2010 which said that some hostile people verbally or physically attacked Jehovah’s Witnesses or even threatened to accuse them before the police, knowing the negative decrees issued against them, and that, being banned, it was difficult to Jehovah’s Witnesses to defend their religion and beliefs before a court.  [The applicant’s] representative submitted that this again pointed to their vulnerability as a direct consequence of not being formally recognised.

19. [The applicant’s] representative submitted that these reports painted a picture of the potentiality of harm due to the fact that the Jehovah’s Witnesses were not a recognised religion.  He submitted that if [the applicant] returned to Lebanon and actively proselytised, there was a real chance that she might be verbally or physically abused by other villagers or other third parties or that she might even be detained by the police which he submitted was ‘tantamount to persecution’.  He submitted that the Tribunal should accept that the only way [the applicant] would be able to avoid this degree of harm would be if she did what she had in the past in Lebanon by significantly modifying her behaviour and not practising her religion in the way that she should.  He referred to [Mr A’s] evidence that there was a potential for harm if Jehovah’s Witnesses preached to Muslims and to [the applicant’s] own evidence that her children had had to conceal their religion when they had been at school and university.  [The applicant’s] representative referred in this context to the decision of the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473. He submitted that if [the applicant] had to abstain from practising her religion in order to avoid actual or threatened harm this indicated that she had a well-founded fear of harm in Lebanon for reasons of her religion.

1. [The applicant’s] representative said that [the applicant] had contrasted her mode of practice in Australia with that in Lebanon.  He submitted that there had been a stark contrast and that she had said that she engaged in indiscriminate door to door knocking in Australia (whereas, as referred to above, this was not her evidence).  He submitted that she had also said that she distributed material at shopping centres and that she spoke to people of all races and creeds.  He submitted that this was something she would not be able to do in Lebanon and that she would have to be very selective who she preached to in Lebanon.  He submitted that she would not be able to preach in certain areas or to certain individuals.  He submitted that this imposed unreasonable restrictions on the core tenets of her faith, for example that as a Jehovah’s Witness she was required to preach in areas where there were non-Christians and there was potential for hostility.  He submitted that not being able to do this rendered adherence to her faith untenable.

2. [The applicant’s] representative said that [the applicant] would be vulnerable as a Jehovah’s Witness woman which he submitted was a separate and distinct claim.  He submitted that [the applicant] was obviously more disposed to mistreatment because she was a woman having no male protection.  He submitted that the mistreatment of women in Lebanon generally remained a pressing legal and factual concern and he said that he would submit reports about this to the Tribunal.  He submitted that women in Lebanon in general did not have adequate legal protection.  He submitted that as a Jehovah’s Witness woman [the applicant’s] level of vulnerability would be greater than a normal Lebanese woman.  He referred to [Mr A’s] evidence that [the applicant] had previously been subjected to physical violence from her husband and her father and he submitted that as a woman living on her own who was required to engage in preaching activity [the applicant] would be vulnerable in the future to physical harm by third parties or even members of her own family who maintained their hostility towards the Jehovah’s Witnesses.  He referred to the evidence that some members of the family were Jehovah’s Witnesses and he submitted that others were ‘fiercely opposed to the Jehovah’s Witnesses faith’.

3. I asked [the applicant] herself if there was anything further which she wanted to say before I closed the hearing.  She said that she really had suffered in Lebanon as a woman.  She said that she was still suffering from what she had gone through.  She said that did not want to go back to Lebanon because she had not been able to practise her religion with freedom.  She referred to the fact that she had not been able to attend her daughter’s wedding in Lebanon.  She said that she wanted to live a safe and stable life.  She said that it was hard to be a woman by yourself, working and looking after your children, in Lebanon.  She said that because she was a Jehovah’s Witness she had been under more pressure because she had felt rejected by society.  She said that because she was a divorced woman this made the situation harder.

4. In a brief submission emailed to the Tribunal later the same day [the applicant’s] representatives repeated in summary what had been said in oral submissions.  They attached copies of two unpublished decisions of the Tribunal relating to Jehovah’s Witnesses from Lebanon, [case number] (23 August 2016) and [Case number 1] (1 April 2016), and material downloaded from the internet relating to the situation of women and domestic violence in particular in Lebanon.  In a further and longer submission dated 9 December 2016 [the applicant’s] representatives referred to her claims and to information relating to the situation of the Jehovah’s Witnesses in Lebanon dating from between 2005 and 2007.  They also made submissions with regard to the law and they referred to a number of decisions of the Refugee Review Tribunal (as well as the decision [Case number 1] referred to above) in which the Tribunal had found in favour of applicants who were Jehovah’s Witnesses from Lebanon.  On 15 December 2016 they provided the Tribunal with a copy of yet another unpublished decision of the Tribunal relating to Jehovah’s Witnesses from Lebanon, [case number] (14 December 2016).

   Conclusions

5. I accept that [the applicant] is a Jehovah’s Witness, as she claims.  This is supported by her own oral evidence, the documentary evidence she produced to the Department and the Tribunal and the evidence of the two witnesses who gave oral evidence at the hearing before me.  It is notorious that, as indicated by the name, the Jehovah’s Witness faith involves going from door to door and preaching or witnessing - proselytising - and I accept that this is integral to [the applicant’s] faith.  This finding is supported by [the applicant’s] own evidence and that of [Mr A].  I accept that in the course of preaching in this manner in Lebanon [the applicant] encountered hostility, that she was verbally abused, that on more than one occasion she was threatened with a gun and that people kicked her, hit her and threatened to kill her.  I accept that if she returns to Lebanon now or in the reasonably foreseeable future she will continue to engage in preaching in this manner and that she will continue to be harassed, threatened and physically attacked as she has been in the past.

6. As I put to [the applicant], the Australian Department of Foreign Affairs and Trade has said that there are a small number of Jehovah’s Witnesses in Lebanon and that, although the religion is not officially recognised, people are able to convert to that religion, to take part in religious meetings and to preach without attracting official or societal discrimination or violence.[5]  This view is supported by the United Nations Special Rapporteur on freedom of religion or belief who has said that religious persecution is unknown in Lebanon.  He said in his report that this was confirmed by members of non-recognised communities such as the Jehovah’s Witnesses who told him that they could live in Lebanon safely and in accordance with their religious convictions.[6]  However I accept that, as [the applicant] herself and the two witnesses said, there may be reasons why the Jehovah’s Witnesses to whom the United Nations Special Rapporteur spoke did not tell him about the problems they were encountering.

   [5] DFAT Country Information Report - Lebanon, 18 December 2015, paragraphs 3.36, 3.39.

   [6] UN Human Rights Council, ‘Report of the Special Rapporteur on freedom of religion or belief on his mission to Lebanon’, 30 November 2015, A/HRC/31/18/Add.1, paragraph 25.

7. [Mr A] said in his evidence that the elders would usually advise them not to say anything because they did not want to stir society or the government against them and [the applicant] herself said you could not tell everything to the United Nations because if the government knew about it they would limit their freedom and their meetings.  I accept that because the Jehovah’s Witnesses are such a small community in Lebanon they may be reluctant to antagonise the government by telling people from other countries or the United Nations about the problems they are encountering.  As referred to in the Tribunal’s decision [Case number 1] from which [the applicant’s] representative quoted at the hearing before me (and to which I am indebted for relevant references), there is independent evidence suggesting that there is hostility towards Jehovah’s Witnesses in Lebanon, not just from Muslims but also from Maronite Christians.  Father George Rahme denounces the Jehovah’s Witnesses on his weekly television programme broadcast from Lebanon throughout the Middle East and one media report quotes a Jehovah’s Witness saying that he has had doors slammed in his face and that he has been assaulted and beaten when preaching door to door.[7]

   [7] Matt Nash, ‘Faith comes knocking’, Now Lebanon, 16 November 2008, CX236701; ‘In Muslim Middle East, Jehovah's Witnesses congregate in secret’, Los Angeles Times, 17 April 2010, CX247271.

8. As referred to in the Tribunal’s decision [Case number 1], the European Association of Jehovah's Christian Witnesses said in 2010 that ‘[s]ome hostile people verbally or physically attack Jehovah's Witnesses, even threaten to accuse them before the police, knowing the negative decrees issued against them. Being banned, it is difficult for Jehovah's Witnesses to defend their religion and beliefs before the court.’[8]  The Minority Rights Group International briefing said that ‘[s]ome religious groups, such as Jehovah’s Witnesses, seem to attract more social and religious prejudice than others because of their beliefs and preaching methods. For instance, the group was reportedly denounced on a number of occasions by a priest on his weekly television programme. There have also been reports suggesting that members may be more vulnerable to harassment from security forces.’  It said that ‘[a]lthough no respondents mentioned specific attacks or incidents of physical violence against them, there were accounts of verbal abuse and acts of discrimination that at times created a sense of exclusion’.[9]

   [8] Immigration and Refugee Board of Canada, ‘Lebanon: Situation of Jehovah's Witnesses, including treatment by society and authorities; state protection available in cases of discrimination or mistreatment (2006-November 2013), 12 November 2013, LBN104650.E.

   [9] Rania El Rajji, ‘The leaves of on tree: Religious minorities in Lebanon’, Minority Rights Group International, December 2014, downloaded from accessed 5 December 2016.

9. I accept that, as [the applicant] said herself, and as confirmed by the witnesses who gave oral evidence, although the government is not persecuting Jehovah’s Witnesses, they do not offer them protection, meaning that if Jehovah’s Witnesses engaged in preaching encounter persecution they cannot turn to the authorities for help.  The High Court has said that the test for the availability of state protection is that the state is obliged ‘to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’.[10]  I do not accept on the evidence before me that the Government of Lebanon meets international standards as referred to by the High Court[11] with regard to the protection it affords to Jehovah’s Witnesses who face a real chance of persecution while engaging in preaching activities.  Since the evidence suggests that the treatment of Jehovah’s Witnesses is the same throughout Lebanon, I consider that there is no part of that country to which [the applicant] could reasonably be expected to relocate where she would be safe from the persecution which she fears.

   [10] See Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [26] per Gleeson CJ, Hayne and Heydon JJ.

   [11] See Respondents S152/2003, cited above, at [26] and [27] per Gleeson CJ, Hayne and Heydon JJ.

10. I consider that the harm which [the applicant] fears amounts to persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Migration Act 1958 in that it involves significant physical harassment or ill-treatment.  I consider that her religion is the essential and significant reason for the persecution which she fears, as required by paragraph 91R(1)(a), and that the persecution which she fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c), in that it is deliberate or intentional and involves her selective harassment for a Convention reason.

    CONCLUSIONS

11. I find that [the applicant] is outside her country of nationality, Lebanon. For the reasons given above, I find that she has a well-founded fear of being persecuted for reasons of her religion if she returns to Lebanon now or in the reasonably foreseeable future. I find that she is unwilling, owing to her fear of persecution, to avail herself of the protection of the Government of Lebanon. There is nothing in the evidence before me to suggest that she has a ‘right to enter and reside in’ any country other than her country of nationality, Lebanon, of the kind referred to in subsection 36(3) of the Migration Act.[12] It follows that I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently she satisfies the criterion set out in paragraph 36(2)(a) of the Migration Act for a protection visa.

    [12] See Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU (2013) 215 FCR 35.

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies paragraph 36(2)(a) of the Migration Act.

    Giles Short
    Senior Member

    
    

    ATTACHMENT A - RELEVANT LAW

13. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Refugee criterion

14. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.  Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

15. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

16. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

17. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

    ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

18. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

    ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

19. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

20. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

    ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

1. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

   ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

   Complementary protection criterion

2. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

3. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.

   Credibility

4. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

   ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

5. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

   ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

6. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.