1516248 (Refugee)

Case [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,

Continue reading 1516248 (Refugee)

Sign in free to access the full text

Details
AGLC
1516248 (Refugee) [2019] AATA 4304
Case
[2019] AATA 4304
Decision Date

CaseChat Overview and Summary

The applicant, a Lebanese national, sought review of a delegate's decision to refuse his second application for a Protection (Class XA) (Subclass 866) visa. This second application, lodged in March 2014, relied on amendments to the Act that introduced claims for 'complementary protection'. The delegate had refused the application in November 2015, considering both refugee and complementary protection criteria. The applicant then applied to the Tribunal for a review of this refusal.

The primary legal issue before the Tribunal was whether there were substantial grounds to believe that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon. This required the Tribunal to assess the applicant's claims under both the refugee protection criterion (s.36(2)(a) of the Act) and the complementary protection criterion (s.36(2)(aa) of the Act), particularly in light of his mental health conditions and the availability of mental health services in Lebanon. A further issue arose regarding the Tribunal's jurisdiction to review the applicant's refugee protection claims, given the history of previous applications and the introduction of new legislative provisions.

The Tribunal considered the evidence presented, including medical reports concerning the applicant's mental health and his capacity to participate in proceedings, as well as country information regarding Lebanon. The Tribunal noted that while the delegate found the applicant's fear of harm based on religion or political opinion could amount to persecution, this fear was not considered well-founded in the applicant's circumstances. The delegate had also found that although mental health care in Lebanon was not as advanced as in Australia, services were available, and the applicant would be able to access them, thus not meeting the complementary protection criterion. The Tribunal also addressed the jurisdictional question, acknowledging the applicant's submission that the 2014 application should be treated as a new and separate application requiring consideration of all requisite criteria, including both refugee and complementary protection.

The Tribunal affirmed the delegate's decision. It found that the applicant did not meet the criteria for a protection visa, concluding that there was no real risk of significant harm to the applicant if he were returned to Lebanon.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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 The applicant provided evidence during the second hearing. An outline of his oral evidence follows. 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. [Omitted]. 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. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. [Omitted]. 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. [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. 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. [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. 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.

Decision

Reasons for decision

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 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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