1517061 (Refugee)

[2016] AATA 4749

1517061 (Refugee) [2016] AATA 4749 (6 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517061

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:6 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 06 December 2016 at 4:00pm

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.

CATCHWORDS

Refugee – Protection visa – Lebanon – Religion – Christianity – Converted to Christianity in Australia – Fear of ex-wife’s family – Demands of payment of dowry – Insufficient information in support of claims – No appearance at hearing

LEGISLATION

Migration Act 1958, ss.36(2)(a)-(c), s.438, s.499

CASES

MIEA v Guo

(1997) 191 CLR 559 at 596

Nagalingam v MILGEA

(1992) 38 FCR 191

Prasad v MIEA

(1985) 6 FCR 155 at 169-70

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 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [age] and a citizen of Lebanon. He applied for the visa [in] May 2014 and the delegate refused to grant the visa [in] December 2015.

3. According to his application for a protection visa, the applicant was born in [Lebanon]. He is catholic. He came to Australia in 2008 on a Spouse visa. Upon his arrival he met a group of Christians and he was introduced to Christianity. He found himself ‘spiritually connected’ and attended church. His wife found out and left him. He is unable to return to Lebanon as his family and community will have him killed for bringing shame to the family. The applicant further stated ‘please refer to my statement which will be provided at a later date’. No further statements were submitted to the Department by the applicant.

4. In support of his application for a protection visa, the applicant provided the following documents:

   ·A birth, Baptism and Confirmation Certificate, indicating that he was baptised and confirmed according to the [church], [in] September 2014;

   ·A psychological Report, authored by [name] [in] June 2010, stating that the applicant has developed ‘anxiety, depression and suicidal ideation as a result of his relationship with his ex-wife.

   ·Copy of an Interim Intervention Order, dated [in] December 2009, naming the applicant as a protected person and his ex-wife as the respondent.

   ·An Application and Summons for an Intervention Order made by the applicant against his ex-wife [in] November 2009

5. The applicant was interviewed by a delegate of the Minister [in] September 2015. At the interview, the applicant provided additional information and claimed to fear his ex-wife’s family because they have demanded that he pays a dowry of AUD $[amount]. He stated that the family have connections to ‘unsavoury characters’. Under Lebanese law he will go to jail if he did not pay the dowry.

6. On 6 October 2016, the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 6 December 2016.

7. The applicant did not respond to the Tribunal’s invitation and the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. No further communication was received from the applicant. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

14. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

15. The Tribunal has significant problems with the applicant’s claims. The evidence presented by the applicant to the department is not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution for a Convention reason in Lebanon or that 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.

16. There is insufficient information before the Tribunal in relation to the claimed dowry and whether, in fact, it was recorded as a condition or a clause in the marriage contract. It is unclear as to why the family of the applicant’s ex-wife have not approached the applicant in Australia for the payment of the dowry. It is also unclear why the applicant is unable to pay the dowry now.

17. With regard to the applicant’s claims regarding his conversion to Christianity, there is insufficient information before the Tribunal in relation to why exactly the applicant would face harm in Lebanon and who exactly would harm him. Whilst in his application for a protection visa the applicant claimed that he fears his family and ‘community’, he has not provided any further persuasive information or details. Indeed, the applicant has a number of siblings in Australia, but he has provided no details in relation to the extent of their current knowledge or their reaction to his conversion.

18. The Department’s file contains a Notification Regarding the Disclosure of Certain Information under s.438 of the Act. The Notification covers information provided by the applicant’s former spouse to a Departmental officer concerning one of the applicant’s previous visa applications, as well as information provided by her at an interview at a Australian overseas mission concerning aspects of her relationship with the applicant. The Notification states that the information was given to an officer of the Department in confidence.

19. The Tribunal has considered the information covered by the Notification and it is satisfied that the information was given to an officer of the Department in confidence. The Tribunal, however, does not consider the information to be relevant to the review. The information covered by the disclosure does not shed any light on, add to or undermine the credibility of the applicant’s claims for protection.

20. Given the lack of information identified above, without more detail, it is difficult to know what significance can be attached to the applicant’s assertions. He has not provided any further information to the Tribunal to determine if he has suffered persecution in the past; whether his fear of facing persecution in the future is owing to a Convention ground or if his fear is well-founded.

21. In view of the insufficient information and lack of detail contained in the applicant's claims, the Tribunal is not satisfied that he has been persecuted for a Convention reason in the past, or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal, therefore, is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

22. For the same reasons, the Tribunal is not satisfied that 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.

23. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

24. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

25. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Shahyar Roushan
    Senior Member