1516248 (Refugee)

[2019] AATA 4304

1516248 (Refugee) [2019] AATA 4304 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516248

DIBP REFERENCE:  CLF2014/44069

COUNTRY OF REFERENCE:                  Lebanon

MEMBERS:Deputy President Jan Redfern (Presiding)

Member Sean Baker

DATE:9 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa.

Statement made on 9 August 2019 at 10:30am.

CATCHWORDS:

REFUGEE – Protection (Class XA) (Subclass 866) visa – application for protection on basis of complementary protection grounds – meaning of ‘degrading treatment or punishment’ and ‘cruel or inhuman treatment or punishment’ – no substantial grounds for believing that, as a necessary and foreseeable consequence of removal there is a real risk of the applicant suffering significant harm – applicant found not to be a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) – recommendation for Ministerial intervention – decision affirmed

JURISDICTION – visa application purportedly made under ‘refugee criterion’ and ‘complementary protection grounds’ in circumstances where a previous application on the refugee criteria has been assessed and refused – both criteria considered by the delegate - discretion to lift bar under s 48B of the Migration Act 1958 (Cth) not exercised – current application found to be made on complementary protection grounds only – validity, scope and effect of the current application – impact of s 48A of the Migration Act 1958 (Cth) – application not invalidated by inclusion of refugee criterion claim – jurisdiction to assess claim under refugee criterion not enlivened by wrongful exercise of power by delegate – impact of s 415 of the Migration Act (Cth)

PRACTICE AND PROCEDURE – assessment of capacity to instruct representative and participate in hearing under s 425 of the Migration Act 1958 (Cth) – previous adjournment requests in light of the applicant’s mental health conditions – applicant found to have capacity having regard to contemporaneous medical report – measures put in place to accommodate applicant’s vulnerabilities

LEGISLATION:

Migration Act 1958 (Cth), ss 5(1), 5(1)(b), 36, 36(1A), 36(2A)(d), 36(2A)(e), 36(1B), 36(1C), 36(2), 36(2)(a), 36(2)(b), 36(2)(aa), 36(2)(c), 46, 46(1)(d)(ii), 47, 47(3), 48, 48A, 48A(1), 48(1)(a), 48(2), 48A(2)(aa), 48B, 50, 65, 351 412, 414(1), 499

Migration Amendment (Complementary Protection) Act 2011 (No.121 of 2011)

Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (No.113 of 2012)

Migration Regulations 1994 (Cth)

CASES:

BPX17 v Minister for Immigration and Border Protection [2018] FCA 763

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127

SZGIZ v Minister for Immigration [2013] FCAFC 71

SZGIZ v Minister for Immigration [2013] FMCA 215

SZRTN v Minister for Immigration and Border Protection [2013] FCA 1156

SZRTN v Minister for Immigration and Citizenship [2013] FCCA 583

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Zaburoni v The Queen (2016) 256 CLR 482

SECONDARY MATERIALS:

Administrative Appeals Tribunal, Guidelines for Persons Giving Expert and Opinion Evidence (30 June 2015, President Duncan Kerr J)

Administrative Appeals Tribunal, Guidelines on Vulnerable Persons (November 2018)

Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Convention relating to the Status of Refugees, opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954)

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Act – Ministerial powers – Minister’s guidelines on Ministerial powers (s 345, s 351, s 417, s 454 and s 501J)’

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’

Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’

International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976)

Minister for Immigration and Border Protection (Cth), Ministerial Direction No.56 - Consideration of Protection Visa applications, 22 June 2013

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 (Class XA) (Subclass 866) visa under s.65 of the Migration Act 1958 (the ‘Act’).

2. The applicant, who claims to be a citizen of Lebanon, applied for the visa [in March 2014]. The delegate refused to grant the visa [in November 2015] and the applicant sought review of this decision on 26 November 2015. The applicant provided a copy of the delegate’s decision to the Tribunal.

3. The applicant appeared before the Tribunal [in January 2017 and  November 2018] to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was unrepresented at the first hearing but represented at the subsequent hearing. There is no dispute that the applicant has mental health issues and the Tribunal formed the view that the first hearing could not proceed because the applicant was not able to actively participate in a hearing at that time. After a significant delay, the applicant’s condition stabilised and he was able, with the assistance of his representative, to participate in the hearing and provide evidence in support of his claims.

4. After the second hearing, the Tribunal was provided with expert medical reports about the applicant’s mental health and diagnosis. The Tribunal was also provided with a statutory declaration from the applicant clarifying certain aspects of his evidence. This was provided after the Tribunal sought further submissions from the applicant.

5. Having regard to the evidence provided to the Tribunal and the submissions made, we have concluded that the decision should be affirmed. Our reasons follow.

   BACKGROUND

6. The applicant is a Lebanese national. He arrived in Australia [omitted] on a visa. The visa ceased on September 2003. He applied for a Protection (Class XA) (Subclass 866) visa in October 2003, which was refused in March 2004. This decision was affirmed by the former Refugee Review Tribunal in September 2004.

7. The applicant made a number of applications for intervention by the Minister between 2006 and 2013, which were unsuccessful.

8. [In March] 2014, the applicant made a further application for a Protection (Class XA) (Subclass 866) visa, relying on amendments to the Act in March 2012 that allowed claims for ‘complementary protection’.[1] The delegate considered the claims made by reference to both the refugee and complementary protection criteria set out in the Act. The second application was refused in November 2015.

   [1] Subsection 36(2)(aa) was introduced by the Migration Amendment (Complementary Protection) Act 2011 (No.121 of 2011) and was subsequently amended by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (No.113 of 2012) to include the term ‘in respect of whom’ Australia has protection obligations.

9. The applicant applied to the Tribunal for review of this decision. The application for review was listed for hearing in January 2017 but, as already noted, could not be finalised at that stage. The Tribunal received reports from a treating clinical psychologist and psychiatrist about the applicant’s mental health and capacity to participate in the hearing. Based on these reports and the applicant’s evidence and presentation at the hearing, we formed the view we could not proceed and adjourned the review.

10. [In February 2017], a delegate of the Minister cancelled the applicant’s Bridging (Class WE) (Subclass 050) visa on the grounds that he had been charged with a number of criminal offences. The cancellation followed the arrest of the applicant and the laying of charges in relation to what is alleged to have been an abusive exchange between the applicant and an officer of the Department two days before the cancellation. The applicant was admitted to a mental health facility around the time of the cancellation. The cancellation was set aside and the criminal charges were subsequently withdrawn.

11. [In March 2017], the applicant’s current representative, who is a lawyer and registered migration agent, agreed to represent him for the purposes of this review. A series of further hearings were scheduled in [June, August 2017 and September 2017]. All had to be abandoned because material provided to the Tribunal indicated the applicant was not competent to attend a hearing during this period. This material included a letter from the applicant’s treating psychologist [omitted] dated 1 May 2017 and a statutory declaration from his representative dated 4 September 2017.[2] In October, November and December 2017 the applicant’s representative provided written submissions and evidence in support of the applicant’s claims, which included, among other things medical reports, country information and letters of support from various people such as the applicant’s case worker,[3] treating medical professionals and community members.[4] Details of the evidence provided in support of the claims are outlined later in our reasons.

    [2] The representative had previously provided a statutory declaration dated 1 September 2017 to a similar effect.

    [3] Including letters of support from [Person 2 of support service A] dated 6 October 2017; [Person 3 of support service B] dated 28 September 2017 and 2 November 2018; [Person 7 of support service C]dated 12 September 2018.

    [4] For example, a letter of support from [Person 8] dated 12 December 2016.

12. The Tribunal was unable to reach a favourable decision on this material alone and on 6 September 2018 advised a further hearing may be required. The representative expressed serious concerns about the applicant’s capacity to provide evidence, but attached a letter from [applicant’s treating psychologist], dated 14 September 2018, which indicated that if appropriate arrangements were made, [the psychologist’s] assessment was that the applicant would be able to give evidence. A resumed hearing was scheduled [in November 2018]. Prior to hearing the Tribunal received a request from the applicant to subpoena a number of witnesses. The request was refused and the Tribunal provided written reasons for its decision, dated 12 November 2018, which we will not repeat.

13. The applicant appeared at the hearing [in November 2018]. He gave evidence and presented arguments with the assistance of his representative. We are satisfied the applicant had capacity to give evidence and present his case but we acknowledge the applicant is vulnerable because of his mental health issues and the role of the representative in assisting the applicant was crucial. It is also relevant to note that procedures consistent with Administrative Appeals Tribunal, Guidelines on Vulnerable Persons (November 2018) were adopted by the Tribunal.

14. The Tribunal received very detailed written and oral submissions as well as further evidence from the representative before, during and after the hearing. These submissions and the representative’s considerable efforts to facilitate the applicant in giving evidence and presenting his case greatly assisted the Tribunal in conducting this review. As noted, the Tribunal also received further evidence from the applicant on 20 June 2019, at its request, clarifying aspects of his evidence at the second hearing.

15. The applicant’s representative contends that the Tribunal has jurisdiction, and therefore must consider, the applicant’s claims for protection under the refugee and complementary protection criteria. It is also contended, among other things, that the applicant’s mental health and the conditions in Lebanon are such that if the applicant is forced to return to Lebanon, he would suffer significant harm.

16. This case raises issues about the applicant’s mental health, the impact of this on the conduct of the review and the relevance of the applicant’s mental health to his claim for protection. The case also raises a preliminary issue about whether the Tribunal has jurisdiction to review claims that the applicant may make based on the refugee criterion, given his claim for protection based on this criterion has been previously determined and rejected.

    CLAIMS MADE BY THE APPLICANT

17. The applicant’s claims are set out in a statutory declaration made by the applicant on 19 March 2014, a letter from his former representative dated 24 June 2015 and submissions from his current representative dated 6 October, 30 November 2017 and 16 November 2018. The submissions attached evidence and information in support of the application. This evidence consisted of, amongst other things, medical reports and letters of support from various persons including the applicant’s treating medical professionals, caseworker and members of the Australian community. For example, the submissions dated 16 November 2018 attach a number of supporting documents, which consist of various medical reports, a letter from the applicant’s treating psychologist and a summary of the applicant’s medical history.

18. We also note that an email from the applicant’s representative dated 20 December 2018 provided further particulars of the applicant’s claims on the basis of his mental health issues, having regard to the evidence of [applicant’s treating psychologist and psychiatrist].

19. In summary, the applicant’s claims are as follows:

    (1)The applicant is [part of a small religious minority in Lebanon]. [That religious community is] under attack from fundamentalist Sunni Muslims.

    (2)[Omitted].

    (3)The applicant made an application for protection, which was refused. He made a number of applications for intervention by the Minister but these were refused. In the meantime, the situation in Lebanon worsened dramatically following the Syrian conflict. The sectarian violence from Syria has spilled over into Lebanon. [The religious minority that the applicant is a part of] have been prime targets of extremist Sunni terrorists in Lebanon. There is now a high level of discrimination towards [the religious minority that the applicant is a part of]. [Omitted].

    (4)[Omitted].

    (5)[Omitted].

    (6)The applicant claims that if he returns to Lebanon news of his return will spread given his family’s prominence in the community and he fears he will be killed before being able to return to [the particular region of Lebanon]. In any event, living in the village is like living in a prison. There is limited electricity, water and healthcare services.

    (7)The applicant would not be protected by the Lebanese government because he is a member of a minority and the Lebanese authorities have little control.

    (8)The applicant cannot relocate outside [the particular region of Lebanon]. He is vulnerable because of his mental health history and needs to stay in his community to avail himself of his family’s ongoing support.

    (9)After the applicant’s Protection visa application was refused in 2004, he was in immigration detention for [a period of time]. The applicant suffered from mental health issues and has been diagnosed with [a particular mental health condition]. He is vulnerable and returning to Lebanon would be detrimental to the applicant’s mental health. First, it would be difficult for the applicant to cope after having lived such a long time in Australia and having support networks in Australia, which would not be available in Lebanon. Secondly, the mental health services in Lebanon would not be adequate to assist the applicant. If the applicant is forced to return to Lebanon, he will face significant harm in the form of ‘degrading treatment or punishment’ and ‘cruel or inhuman treatment or punishment’. Lebanon is one of the few Arab countries that does not have a mental health policy in place. There is a deliberate failure of the Lebanese government to provide adequate services and there is a cultural stigma in the community attached to mental health issues. The applicant is estranged from his family, who have declared they will not accept him back or support him. We note this submission changed at the hearing, with the applicant providing a more nuanced description of his relationship with his family. The submission as it presently stands is set out later in our reasons.

    (10)The applicant has mental health issues and little hesitation about challenging authority. He is active on social media. His mental health and resultant behavioural issues may cause him to be viewed as a dissident, beyond help or an anarchist, leaving him open to persecution or prolonged detention.

    (11)The applicant also suffers from physical conditions, [omitted], which would further compound the applicant’s position if he returned to Lebanon, particularly given that the available health services in Lebanon are insufficient to cater to his specific needs.

    (12)The applicant is an extremely vulnerable individual and returning him to Lebanon would only serve to expose him to life threatening harm and cruel and degrading treatment.

    (13)This harm would be significant within the meaning of the Act because there was an element of intention by others, either by the State or the applicant’s family. This claim was explained in the applicant’s written submissions, both prior to and after the hearing, and is outlined in some detail later in our reasons. This claim was also the subject of further evidence by the applicant after the hearing.

20. In addition to the written material provided, the applicant gave evidence at the hearing in support of these claims.

    PRELIMINARY ISSUE

21. To understand how the preliminary issue arises in this case, it is instructive to summarise the relevant legislative provisions.

    The statutory framework

22. Section 65 of the Act provides that after considering a valid application for a visa, the Minister is to grant the visa if satisfied that the health criteria and any other criteria prescribed by the Act or Migration Regulations 1994 (the ‘Regulations’) in relation to the visa have been satisfied.

23. Section 36 sets out the requirements for protection visas. Subsection 36(1A) provides that an applicant for a protection visa must satisfy both of the criteria in subs (1B) and (1C), which relate to risks to Australia’s security or conviction of a serious crime that is a danger to the Australian community, and at least one of the criteria in subs (2). Subsection 36(2) sets out the criteria for protection visas and it should be noted, relevant to the facts of this case and the preliminary issue, that this provision has been amended over time.

24. The applicant made an application for a protection visa in 2003, which was rejected by a delegate of the Minister. The decision was affirmed by the former Refugee Review Tribunal in 2004. The claim was made pursuant to s.36(2) of the Act, as it then was, which provided two criteria for protection visas. The first criterion was that the applicant for the visa must be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention: refer s.36(2)(a) of the Act. The second criterion related to members of the same family unit of a non-citizen who has satisfied the first criterion: s.36(2)(b) of the Act. This does not apply to the applicant and he has never made a claim on this basis.

1. In March 2012 the Act was amended to, among other things, insert s.36(2)(aa) to afford complementary protection rights derived from Australia’s non-refoulement obligations under various international treaties to which Australia is a signatory.[5]

   [5] International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976); The Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

2. As such, since the 2012 amendments to the Act, an applicant may be granted a protection visa if he or she is able to establish they are a person in respect of whom Australia has protection obligations under the refugee criterion (as set out in s.36(2)(a)), or if not, on other complementary protection grounds (as set out in s.36(2)(aa)).

3. At the time the applicant made his second application for a protection visa, s.36(2)(a) provided that an applicant would meet the refugee criterion if he or she could satisfy the Minister they were a refugee as defined in Article 1 of the Convention Relating to the Status of Refugees (‘Refugee Convention’), being 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.[6]

   [6] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954); Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

4. Subsection 36(2)(aa) provides that 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 the person 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. This is known as ‘the complementary protection criterion’.

5. In this case, the delegate made an assessment of the applicant’s claims under both the refugee and complementary protection criteria.

6. The preliminary question for determination is whether we have jurisdiction on review to consider the applicant’s claims under the refugee criterion, or at all. To decide this question we must determine whether the current application is valid and its nature and scope.

7. Section 46 of the Act describes what constitutes a valid application and provides that an application is valid only if, relevantly, it is not prevented by s.48A of the Act.[7]

   [7] Section46(1)(d)(ii) of the Act.

8. Section 47 provides that the Minister must consider a valid application and, conversely, must not consider an application that is not valid.

9. Section 48A of the Act (as at the time of the applicant’s second application for protection and now) establishes a bar to further applications for protection after an application has been refused or cancelled. Given the interpretation of this provision is at the heart of the preliminary issue, we have extracted the provision in its entirety as follows:

   Non-citizen refused a protection visa may not make further application for protection visa

   (1)Subject to section 48B, a non-citizen who, while in the migration zone, has made:

   (a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa while in the migration zone.

   (1A)     For the purposes of this section, a non-citizen who:

   (a)has been removed from the migration zone under section 198; and

   (b)is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

   is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

   
   
   Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
   
   

   (1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.

   …

   (2)In this section:

   “application for a protection visa” includes:

   (aa) an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and

   (a)an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and

   (b)an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

   (c)an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992. [Emphasis in Original]

10. Section 48B provides that the Minister may determine s.48A should not apply to prevent an application for protection if he or she thinks it is in the public interest to do so. In other words, the Minister may lift the bar on making subsequent applications for protection. The power may only be exercised by the Minister and there is no duty to consider whether to exercise such discretion. If the Minister does exercise the discretion, he or she must provide certain information to Parliament about the determination to do so.

11. Section 50 provides that if an applicant makes a further application for a protection visa where the grant has been refused and finally determined the Minister is not required to reconsider any information considered in the earlier application.

12. In essence, the combined effect of ss.46, 48A and 48B of the Act is to prevent repeat applications for protection based on claims previously made when an applicant is in the migration zone unless the Minister determines it is in the public interest to do so. If the Minister allows a further application to be made under s.50 of the Act, any further consideration would generally be confined to new information.

    The decision of the delegate and the questions for determination

13. The delegate found that the claim by the applicant to fear harm based on his religion [omitted] and based on his political opinion [omitted] could amount to persecution but found that, in the applicant’s circumstances, the fear was not well-founded. The delegate considered the applicant’s mental health issues and found that while the country information indicated that the level of mental health care in Lebanon was not as high as it is in Australia, mental health services were nevertheless available and the applicant would be able to access these services. Accordingly, the delegate found that the applicant did not meet the criterion under s.36(2)(a). The delegate also considered that the applicant did not meet the complementary protection criterion in s.36(2)(aa), relying on the reasoning set out in respect of the refugee criterion. The delegate did not specifically address the applicant’s mental health issues in considering whether he faced a real risk of significant harm if he returned to Lebanon.

14. The fact the delegate assessed the applicant’s protection claim under s.36(2)(a) and made a finding that the applicant did not satisfy the refugee criteria does not, of itself, enliven the Tribunal’s jurisdiction. The Tribunal, like the delegate, only has power in respect of a valid application. If the delegate wrongly assessed an application for protection against the refugee criterion where there was no power to do so or where there was no such claim before the delegate, the Tribunal is not bound by this assessment nor does this create jurisdiction or an obligation to review. There is no dispute that the applicant’s first application for protection was based on the refugee criterion. It did not include a claim for complementary protection, which was unsurprising given this ground was not incorporated into s.36(2) at the time of the applicant’s first claim.

15. Because of the confusion created by the fact the delegate considered both criteria for protection, and because it was not entirely clear whether the applicant sought to prosecute his original refugee claim, the Tribunal wrote to the applicant’s representative on 20 October 2017 seeking submissions on whether the Tribunal had jurisdiction to review the applicant’s refugee protection claims.

16. The applicant’s representative submitted that the application for protection made by the applicant on [in March 2014] should be considered as a new visa application and must be considered as a separate application from the application that was previously lodged in October 2003. The delegate, in deciding the second visa application, was required to assess the application on its merits and to consider whether the applicant met the criteria for the particular class of visa claimed, namely the protection visa. Given the structure of the Act, it was submitted that the decision-maker is required to consider all of the requisite criteria for a protection visa, which includes both the refugee and complementary protection criteria. The Tribunal therefore must consider both criteria and this was:

    ….particularly the case in the present case given the period of time that has passed since the review applicant’s refugee claims were first considered by the [D]epartment and the [T]ribunal.

17. This submission appears to suggest that the application for protection made by the applicant in 2014 did in fact contemplate an application under both the refugee and the complementary protection criteria. Whether this is the case is a question of fact. If the application for protection made in 2014 was made in respect of both refugee and complementary protection criteria, there are questions about its validity, the scope and effect of the application and the nature of any review that can or should be undertaken by this Tribunal in the circumstances of this case.

18. In summary, there are a number of questions that arise in this case.

19. Was the application made by the applicant in 2014 an application for protection based on both the refugee and complementary protection criteria? If so, does this make the application invalid under s.48A? In the alternative, is the application severable? If the application is severable into two different claims, one under the refugee criterion and one under the complementary protection criterion, does s.48A apply to prevent the first application from being valid and therefore reviewable or is there an argument that the claim having been assessed by the delegate is reviewable and jurisdiction to assess the applicant’s claim under s.36(2)(a) is enlivened?

    What is the scope and effect of the second application for protection?

20. As already noted, the applicant made a further application for protection on [in March 2014].

21. The letter from the applicant’s former representative accompanying the application noted:

    As the Department will be aware, the complimentary (sic) protection provisions were introduced in March 2012 which meant the applicant’s claims were not assessed against these at the time of his decision. Following the decision SZGIZ v Minister for Immigration [2013] FMCA 215, we advise that the Applicant is now permitted to re-lodging his protection visa applications so that his claims may be considered against the additional criteria.

22. The representative was referring to a decision in the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) which was said to be authority for the proposition that an applicant who made a previous application for a protection visa on one criterion where the application was refused was not prevented from making a subsequent application relying on a different criterion. This reference is in error and may have been intended to refer to the decision of the Full Court of the Federal Court of Australia in SZGIZ v Minister for Immigration [2013] FCAFC 71, reversing the decision of the Federal Magistrate’s Court on appeal, which was to this effect. The Full Court (Allsop CJ and Buchanan and Griffiths JJ) considered the proper construction of s.48A and its impact on applications for protection on the basis of s.36(2) of the Act. The reasoning of the Full Court is pivotal to our findings in this case but before dealing with this it is first necessary to form a view about the nature and scope of the applicant’s second application.

23. The applicant’s statement in his second application outlined his fear of being harmed if he was forced to return to Lebanon and, in particular, addressed the issue of why he would suffer “significant harm”, being the term used in s.36(2)(aa).

24. The letter from the applicant’s former representative and the applicant’s statement suggest that the applicant was intending to make an application for protection under what was at that time the new complementary protection provisions set out in s.36(2)(aa) of the Act, as permitted by SZGIZ.

25. The applicant did not give evidence about his intention at the time of the first application but we have reviewed the second application and supporting material provided and, on balance, have concluded that the applicant’s second application was an application for protection under s.36(2)(aa) and not under ss.36(2)(a) and 36(2)(a) for the following reasons:

    (1)The letter accompanying the application expressly referred to SZGIZ, which was accepted at that time as judicial authority to permit the lodging of a further application under the complementary protection criterion where a previous application under the refugee criterion had been determined and refused;

    (2)In SZGIZ, there was no question of the applicant seeking to rely on the previous claim based on the refugee criterion, which suggests the applicant’s lawyers in the case were making the claim along similar lines to those made by the applicant in SZGIZ; and

    (3)The letter specifically referred to complementary protection and, while there is a reference to the applicant “re-lodging his protection visa applications” which would not have been permissible in any event, when the application is read as a whole the inference is that the applicant was directing attention to the criterion, albeit on similar factual matters to the claim made in respect of his previous refugee protection claim, to the complementary protection criterion.

26. If we are wrong about this and the applicant’s second application in 2014 is an application for protection under both ss.36(2)(a) and 36(2)(aa), the question then arises as to whether the application is valid given the terms of s.48A of the Act.

27. The decision record of the delegate notes that there were requests made by the applicant under s.48B in 2012 and that these applications, together with applications for Ministerial intervention under s.417, were either not allowed or not referred to the Minister because the Ministerial guidelines relating to the Minister’s discretionary power under s.351 of the Act were not met. It is also noted that these applications were finalised in 2012 and 2013, before the second application was made. The decision record does not refer to any further applications made under s.48B and there is no record, nor was there any submission or evidence to the effect, that such a request was made or that the s.48B discretion was exercised in the applicant’s favour.

28. As such, it appears, and there was no submission to the contrary, the Minister did not exercise discretion to lift the bar under s.48B to allow the applicant to make a claim for protection under s.36(2)(a) of the Act.

29. If the 2014 application was in fact an application for protection based on both the refugee and the complementary protection criteria, the questions that arise are: first, whether the whole of the application is invalid and secondly, if not, what falls to be determined by the Tribunal?

30. To answer these questions, it is important to understand judicial authority in relation to the interpretation of s.48A of the Act.

    Judicial authority

31. In SZGIZ the Full Court of the Federal Court found that s.48A did not preclude a second application for protection made under the complementary protection criteria where an earlier application for protection based on the Refugee Convention had been refused. According to the Full Court (Allsop CJ and Buchanan and Griffiths JJ) the relevant parts of the definition of an “application for a protection visa, where the grant of the visa has been refused” in s.48A(2)(aa) need to be read into the operative provision of s.48A(1) to give it contextual and linguistic sense: at [31]. It was also noted by the Full Court (at [35] to [38]) as follows:

    35.First, the structure of the definition provision in s 48A(2), defines “an application for a protection visa”, relevantly for the purposes of s 48A(1) by reference to whether the application is for a visa which relies on “a criterion” which is mentioned in any one of the four specified paragraphs in s 36(2) (i.e. s 36(2)(a), (aa), (b) or (c)). In other words, it is the presence of one of those stipulated criteria which determines whether a visa application is an application for a protection visa for the purposes of s 48A. Each of those criteria is different from the others. The first two criteria (i.e. s 36(2)(a) and (aa)) reflect essential – but not exhaustive – conditions to the grant of a protection visa on what can broadly be described as refugee and complementary protection grounds respectively. The last two criteria (i.e. s 36(2)(b) and (c)) reflect essential – but not exhaustive – conditions to the grant of a protection visa to a person who is a member of the same family unit as a person who has been granted a protection visa under either of the first two criteria respectively. The definition in s 48A(2) operates by reference to the situation where an application is made for a visa which has as one of its criteria any of the four criteria set out in s 36(2).

    36.Secondly, the use of the adjective “further” in s 48A(1) in the context of the phrase “further application for a protection visa” strongly indicates that the intention was to refer to a further application for a protection visa based on the same criterion relied upon in the earlier unsuccessful application for a protection visa. The point is reflected in the fact that one of the meanings given to the adjective “further” in the New Shorter Oxford English Dictionary (Clarendon Press, 1993) is as follows:

    further... 2 More extended, going beyond what exists or has been dealt with, additional (emphasis added).

    37. Thirdly, the reference in s 48A(1)(a) to “where the grant of the visa has been refused” (emphasis added) is plainly a reference to the refusal of an application for a protection visa made on the basis of one of the criteria mentioned in one of the four specified paragraphs in s 36(2).

    38.A construction of s 48A which confines its operation to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa (in the sense that both applications raise the same essential criterion for the grant of a protection visa) also accords with common sense. [Emphasis in original]

1. This issue was again considered by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 (‘SZVCH’).

2. The facts in SZVCH are similar to those in the present case in that the applicant made an earlier application for protection based on the Refugee Convention, which was rejected by a delegate of the Minister and by the former Refugee Review Tribunal. The applicant made a second application for protection on 18 March 2016 following the amendment of the Act in 2012 allowing complementary protection. The second application was said to be expressly made in reliance on s.36(2)(aa). As in this case, the delegate did not limit the consideration of the applicant’s protection claims to complimentary protection but also considered the claims under s.36(2)(a). The Tribunal, in affirming the decision, confined the review to the consideration of the complementary protection criteria.

3. The Minister submitted that because the application included claims previously made under the refugee criterion, the application was invalid by the operation of s.48A of the Act. It was further submitted that the construction of s.48A favoured by the Full Court in SZGIZ was inconsistent with other Full Federal Court authority and should not be accepted. An application for protection is an application for a visa of a particular class created by s.36 and it is not an application for a visa on the basis of a particular criterion.

4. In contrast, the applicant submitted (similar to the submissions now made) that once a further application was validly made under the Act, s.47 treated the whole of the application as a valid application and the decision-maker was required by s.65 to consider all the criteria of the visa class for which the application was made which included the criterion in s.36(2)(a) as well as s 36(2)(aa) of the Act. It was nonetheless conceded that the decision-maker would be entitled to conclude, having regard to s.50 and previous findings on information previously considered, that the criteria was not satisfied.

5. These were not the only submissions made by the parties but we have summarised the effect of the key submissions for context.

6. The Full Court (Kenny, Siopis and Besanko JJ, agreeing with Mortimer J in allowing the appeal but for different reasons), identified the primary question on the appeals as whether, having regard to SZGIZ and the provisions of the Act, it was permissible (or necessary) for the delegate (and thereby the Tribunal) to consider the applicant’s claims not only by reference to s.36(2)(aa), which was the basis for the second valid application, but also by reference to the criterion in s.36(2)(a), which could not have supported a valid application: refer at [27]. Their Honours accepted that while SZGIZ did not in terms address the primary question raised by the Minister, when the reasoning in the case and other relevant provisions in the Act are considered, the answer to this question must be “no”: refer at [33].

7. In other words, it was not permissible or necessary for a decision-maker to consider claims made under the refugee criteria which could not have formed the basis for a valid application. Section 47 requires the Minister to consider a valid application for a visa and must not consider an invalid application. This provision is complemented by s.65 and together the two provisions “strongly support the proposition that a delegate of the Minister cannot properly consider anything other than that which is the subject of a valid application”: at [36]. Relevantly, their Honours found as follows at [37]:

   Having regard to SZGIZ [2013] FCAFC 71; 212 FCR 235, the first respondent’s second protection visa application was valid only because it was based on the criterion in s 36(2)(aa), which was a different criterion from the criterion in s 36(2)(a) on which his first protection visa application was based. A second protection visa application based on s 36(2)(a) would clearly have been invalid and the Minister would have been unable to consider it: see s 47(3). It would defeat the evident purpose of s 47(3) to allow that the Minister could consider a criterion in the substantive decision-making processes, which if it was the basis of the visa applicant’s application would make that application invalid and could not be considered by the Minister. In this instance, therefore, the delegate ought not to have addressed s 36(2)(a) at all. Nothing turns on this, however, since the Tribunal in this case did “over again” that which the Migration Act required the delegate to do.

   [Later case citations omitted]

8. Subsection 414(1) provides that if a valid application for review is made under s.412, the Tribunal must review the decision. According to the Full Court, the Tribunal can exercise all the powers and discretions conferred under the Act but “it is not the case that the Tribunal is required to review on the merits that part of a primary decision that the primary decision-maker had no power to decide”: SZGIZ at [39]. Relevant to the submissions in this case, their Honours observed that they did not need to determine whether SZGIZ was in error (at [46]) but found as follows at [44]:

   For the reasons stated, the primary judge was in error in holding that it was open to the Minister’s delegate to consider the first respondent’s second application for a protection visa by reference to s 36(2)(a) as well as s 36(2)(aa). His Honour was also in error in holding that the Tribunal was obliged to consider the applicability of both criteria since the delegate had elected to do so. Contrary to his Honour, there was no jurisdictional error on the Tribunal’s part.

   Conclusion

9. Having regard to the authorities of SZGIZ and SZVCH, we find that the application would not be invalidated by the inclusion of claims under s.36(2)(a), however, it falls to be determined by reference to the criterion in s.36(2)(aa) alone. Consideration of the applicant’s claims by reference to s.36(2)(a) is not permitted, nor necessary, because of the operation of s.48A to the facts of this case. It is irrelevant that the delegate considered the claims under the refugee criterion and the Tribunal can only conduct a review under s.415 in respect of a valid application. The Tribunal can only exercise the powers that it is authorised to exercise in accordance with the Act and the wrongful exercise of powers by the delegate does not of itself enliven the powers of review by the Tribunal.

10. We therefore conclude that our review should be confined to considering the applicant’s claims having regard to the criterion in s.36(2)(aa) of the Act.

    RELEVANT LAW – PRINCIPLES

11. Subsection 36(2)(aa) sets out the criterion for complementary protection and provides that a person may meet the criteria for the grant of the visa if he or she is a non-citizen in Australia:

    …in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

12. For complementary protection to be engaged, the Tribunal must be satisfied there is a real chance the applicant will suffer “significant harm” (as opposed to “serious harm” under the refugee criteria) as defined by the Act. Without diminishing the complexities of the differences between the two criteria and how they may be applied in the particular circumstances of a case, the criterion for the harm suffered in respect of complementary protection is generally more difficult to establish than the criterion for harm suffered in respect of protection claims on the refugee grounds because significant harm is exhaustively defined in the Act: SZRTN v Minister for Immigration and Citizenship [2013] FCCA 583, upheld on appeal in SZRTN v Minister for Immigrationand Border Protection [2013] FCA 1156.

13. The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

14. Subsection 36(2A) provides that 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.

15. 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.

16. There are contentions made by the applicant’s representative that if the applicant is returned to Lebanon he would be subject to significant harm under s.36(2A) because he would face cruel or inhuman treatment or punishment or degrading treatment or punishment. These terms are defined in s.5(1) of the Act and given this is a critical issue in the case, we extract the provisions below:

    "cruel or inhuman treatment or punishment" means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    "degrading treatment or punishment" means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    [Emphasis in original]

17. It should be noted that both provisions require an element of intent. The meaning of this and how it should be interpreted given the facts in this case are considered in detail below.

    Section 499 Ministerial Direction

18. In accordance with Ministerial Direction No.56,[8] made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’ and PAM3 ‘Refugee and Humanitarian - Refugee Law Guideline’s – and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. We have considered relevant country information being the previous and updated DFAT Country Information Report - Lebanon (19 March 2019) and other material referred to by the applicant on the treatment of persons with mental health conditions in Lebanon, mental health facilities in Lebanon and the general situation in Lebanon. [9] Our findings are detailed below. We have also considered the Complementary Protection Guidelines which contain the Department’s interpretation of the Act and provide examples of circumstances which may or may not fall within the criteria in ss.36(2)(a) and (aa). To the extent that the Guidelines were relevant to the consideration of the decision under review, they were of limited assistance in the circumstances.

    [8] Minister for Immigration and Border Protection (Cth), Ministerial Direction No.56 - Consideration of Protection Visa applications, 22 June 2013.

    [9] For example,: Kerbage, H et al, ‘Mental health legislation in Lebanon: Nonconformity to international standards and clinic dilemmas in psychiatric practice’, International Journal of Law and Psychiatry (2015) < Lebanese Act no. 220/29/5/2000 Rights of mentally handicapped in Lebanon; Lebanese Act No. 574-11/2/2004 Patient Rights and Informed Consent; Lebanese Act No.673-16/3/1998 Narcotic Drugs and Psychotropic Substances and precursors; Chahine, L.M et al, ‘Mental Health care in Lebanon: policy, plans and programmes’, Eastern Mediterranean Health Journal - Volume 15 No.6 (2009); ‘WHO Aims Report on Mental Health System in Lebanon’, WHO and Ministry of Health (2010); Chammy, R et al, ‘Assessment of mental health and psychosocial support services for Syrian refugees in Lebanon, December 2013; Medecines sans Frontiers, ‘2008 International Activity Report – Lebanon’ (31 August 2009); ‘War takes its toll on civilian health: three-quarters of Lebanese adults have been exposed to traumatic events related to the country’s ongoing conflict, putting them at increased risk of mental illness’, New Scientist (2008); Ammar W et al, ‘Lebanon national health accounts’, World Health Organisation-Geneva (2000) < ‘Addressing mental health needs in Lebanon’, Humanitarian Practice Network (1 July 2011) CX319039; ‘Country Cooperation Strategy – Lebanon’, World Health Organisation (1 March 2010) CIS27486; United Nations, ‘Convention on the Rights of Persons with Disabilities’.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

    Outline of the evidence

20. The applicant provided evidence during the second hearing. An outline of his oral evidence follows.

21. The applicant arrived in Australia [omitted] as the holder of a [visa]. He said he did not want to leave Australia because he was scared.

22. [Omitted].

23. The applicant is suffering from several mental health and general health conditions. He does not take medication for his mental health conditions but feels that he is easily provoked. He takes [a prescription medication] in emergencies and sees his psychologist [omitted] every four months.

24. [Omitted].

25. [Omitted].

26. [Omitted].

27. [Omitted].

28. [Omitted].

29. [Omitted].

30. [Omitted].

31. [Omitted].

32. [Omitted].

33. [Omitted].

34. [Omitted].

35. [Omitted].

36. In support of the application, the applicant’s representatives provided the Tribunal with a number of written statements of support. The written statements demonstrate that the applicant has ties to the Australian community.

37. [Person 1] has been the applicant’s doctor since 2015 and provided a letter dated 16 February 2017 to the Tribunal. In that letter, [Person 1] opined that he did not believe the applicant was a risk to the community.

38. The applicant provided a number of letters of support from the community, including a letter of support dated 6 October 2017 from [Person 2, a case worker]. [Omitted]. The statement opines on the applicant’s mental health conditions, living arrangements, case management and support needs including medical treatment needs.

39. [Person 3] has been involved as the applicant’s caseworker at [a transitional housing provider for male asylum seekers]. [Person 3] has provided letters of support dated 28 September 2017 and 2 November 2018 which outline her understanding of the applicant’s mental health conditions, general health and circumstances, including details of his accommodation and engagement in meaningful activities in the community. [Person 3] also provided a report dated 14 February 2017 stating that she has known the applicant since November 2016. The Tribunal received oral evidence from [Person 3] at the first hearing, to the effect that she had known the applicant for some time and had never felt at risk.

40. At the first hearing, the Tribunal also received oral evidence from [Person 4], his wife and their daughter. [Omitted]. [Person 4] told the Tribunal he has known the applicant for at least seven years as at the date of the hearing. [Person 4, his wife  and daughter] all gave evidence that the applicant has a close relationship with their family. He has spent Christmas and other occasions with them and has gone with them to their farm. The applicant visits or speaks with [Person 4] almost on a daily basis. [Person 4] has assisted the applicant for several years with various practical and legal matters. The family trusts the applicant to assist [with the wife of Person 4’s] elderly mother and occasionally look after a new baby. [Person 4 and his family] said that sometimes the applicant has difficulty communicating but they have never felt threatened by him.

41. In addition, the Tribunal has been provided with a number of written statements from [Person 4]. The statements, dated 6 October 2017 and 1 December 2017 contain information consistent with the oral evidence provided by [Person 4]. Notably, in his statement of 1 December 2017 [Person 4] outlines the nature of their relationship and his understanding of the applicant’s situation, including the applicant’s mental health condition. [Person 4] expresses concern about the availability of medical facilities and treatment for mental health conditions in Lebanon as well as the stigmitisation of persons with mental health issues. [Person 4] also raises the consequences of the applicant’s deportation, including the impact that this would have on the applicant’s mental health and his ability to travel to other countries, [omitted]. [Person 4] also provides observations about the applicant’s relationship with his family, stating that they are ashamed of his mental health and would not willingly accept the applicant back into their lives. He recounts an incident in which the applicant’s brother visited Australia, but refused to see him and said that he did not care about the applicant or what might happen to him in the future.

42. [Person 5] provided a written statement dated 15 February 2017, she stated that she had known the applicant for approximately five years as at the date of the statement and met him though family members. She claims that in all of her dealings with the applicant, he has demonstrated high levels of decency, dignity, reliability, maturity and empathy.

43. [Person 6] is a retired lawyer and provided a written statement in support of the applicant, dated 14 February 2017. [Person 6] had known the applicant for approximately 13 years at the time of the statement. During that time, [Person 6] has provided the applicant with assistance in respect of his previous proceedings. He stated that in everyday situations the applicant is a “quiet, unobtrusive, peaceful and non-violent person.”

44. In written submissions dated 30 November 2017, it was contended that the applicant had “received multiple threats from his family members” and the applicant’s family have a “determined, subjective intent to bring about pain, suffering or humiliation”.[10] Following consideration of this contention the Tribunal wrote to the applicant’s representative requesting that the applicant identify the written or oral evidence which was relied on to support this claim.

    [10] Applicant’s submissions dated 30 November 2017 at [45] and [49].

100.   The applicant provided a statutory declaration dated 19 June 2019 in response to this request to the following effect:

(1)[Omitted].

(2)[Omitted].