1601961 (Refugee)

[2017] AATA 280

1601961 (Refugee) [2017] AATA 280 (13 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601961

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Mila Foster

DATE:13 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2017 at 4:00pm

CATCHWORDS

Refugee – Protection visa – Lebanon – Religion – Jehovah’s Witness – Door-to-door proselytising – Threats of physical harm – Not a compelling witness – Not registered as a religious group – Limits on religious practices – Police corruption

LEGISLATION

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

CASES

MIMAC vSZRHU [2013] FCAFC 91

Chan Yee Kin v MIEA (1989) 169 CLR 379

MZAIU v MIBP [2015] FCCA 1898

SZRTC v MIAVC (2014) 224 FCR 570

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2016 to refuse to grant the applicant a protection 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] August 2015. Essentially, the applicant claims she will be harmed if she returns to Lebanon because she is a Jehovah's Witness. The delegate did not find the applicant credible, did not accept the applicant was a Jehovah's Witness and on that basis refused to grant the visa.

   CRITERIA FOR A PROTECTION VISA

3. 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). Relevantly, s.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 because the person is a refugee. See the attachment to this decision for these and the other provisions of the Act referred to below.

4. Subsection 36(2) of the Act, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. These provisions mean that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply. The Full Federal Court in MIMAC vSZRHU [2013] FCAFC 91, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

   Meaning of a refugee: s.5H(1)

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a).

   Meaning of well-founded fear of persecution: s.5J

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

7. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.

   Effective protection measures: s.5J(2) and s.5LA

8. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

9. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

   Behaviour modification – s.5J(3)

10. Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.

    The reason/s for and the nature of the persecution: s.5J(4)

11. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

    Instances of serious harm – s.5J(5)

12. For the purposes of s.5J(4), s.5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Sur place claims - s.5J(6)     

13. Subject to s.5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Subsection 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

    Mandatory considerations

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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. DFAT produced such a report on Lebanon on 18 December 2015 (DFAT Country Report).

    THE APPLICANT’S CLAIMS AND EVIDENCE

15. The applicant presented her claims and evidence in her protection visa application, during an interview with the delegate [in] January 2016, and at a hearing before me on 13 and 28 October 2016.

16. Evidence provided in support of her protection visa application included the following:

    a.a statutory declaration made by the applicant [in] August 2015,

    b.a document, in Arabic, which her migration agent indicated was her Lebanese ‘bloodcard’,

    c.photographs said to be of the applicant’s baptism,

    d.an undated letter signed by three people claiming to be elders of the [Location 1] (spelt [differently] in the applicant’s statutory declaration) congregation of Jehovah's Witnesses in Lebanon, and

    e.a letter dated [in] August 2015 from elders of the [Suburb 1] Congregation of Jehovah's Witnesses.

17. I have listened to a recording of the applicant’s interview with the delegate and an account of the evidence she gave during the interview was included in the delegate’s decision record.

18. Documents submitted to the Tribunal in support of the applicant’s application for review included the following:

    a.a letter dated [in] October 2016 from elders of the [Suburb 1] Congregation of Jehovah's Witnesses,

    b.a ‘no blood document’ dated 12 December 2015,

    c.a statutory declaration made by the applicant’s [Relative A], [named], on 17 October 2016,

    d.a statutory declaration made on 19 October 2016 by, [Leader A], an elder of the [Suburb 1] Congregation of Jehovah's Witnesses,

    e.written submissions by the applicant’s migration agent made before and after the hearing, and

    f.oral evidence given by the applicant’s [Relative A] and [Leader A] at the hearing.

19. According to the applicant’s claims and evidence she was born in Syria, is a national of Lebanon and does not have the right to enter and reside in any country other than Lebanon. She is [an age] year old married woman from Lebanon. She has [number] adult sons, [number] of whom are married. Her husband and sons reside in Lebanon. They are all Jehovah's Witnesses. She was born into the Catholic religion and became a Jehovah's Witness in 2005; her husband was born a Maronite Catholic and became a Jehovah's Witness in about 2010. She has been a member of the [Location 1] Jehovah's Witnesses congregation in Beirut since 2005.

20. She made the following claims in her statutory declaration:

    a.Her religion is not legally recognised in Lebanon even though the constitution provides for freedom of religion.

    b.Jehovah's Witnesses is regarded as a political organisation allied to the Zionist movement.

    c.Her religion requires her to attend congregation meetings and preach. Jehovah's Witnesses do not have the legal right to congregate to worship and are not permitted to preach to persons of other faiths.

    d.Jehovah's Witnesses are denied basic rights including the right to bury their dead and marry in accordance with their religion.

    e.The most significant impediment to their religious freedom is the risk associated with preaching and attending gatherings. They are forced to congregate in secret locations and the police often raid suspected places of worship and detain members. The police have raided her place of worship about five times in the last few years. The local authorities act on the direction of mainstream religious groups and deny Jehovah's Witnesses protection.

    f.There is increasing hostility towards Jehovah's Witnesses in Lebanon due to rising religious extremism. Significant numbers of Syrian and Iraqi refugees who are prevalent in Lebanon hold extremist religious views.

    g.As a result of the rise in hostility and lack of protection, Jehovah's Witnesses are forced to restrict their religious activities and avoid attending gatherings.

    h.Spreading the good news of the gospel is one of the main tenets of the Jehovah's Witnesses faith. This involves preaching to all. Muslims do not tolerate Jehovah's Witnesses preaching to them and the authorities regard this activity as troublemaking.

    i.She has encountered an increasing number of incidents while preaching where her personal safety has been threatened. On one occasion, she was threatened with physical violence by a man who objected to her preaching in his building. She had to hide in the building’s lift to avoid harm.

    j.Her husband and children have also faced increasing violence and recently a gun was held to her husband’s head.

    k.Members of her congregation and other congregations have reported increasing incidents of threats and violence being perpetrated during preaching activities.

    l.She suffers from [a medical condition] which impedes her ability to defend herself or avoid harm. As a Jehovah's Witness her special medical needs cannot be catered for in most hospitals. She has been refused medical treatment because she is a Jehovah's Witness and may require a blood transfusion during a procedure.

    m.She has been attending the [Suburb 1] Jehovah's Witnesses congregation since arriving in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether, based on the claims I accept, the applicant satisfies the refugee criterion and if not whether she satisfies any of the other criteria in s.36(2). For the following reasons, I have concluded that the applicant meets the refugee criterion and that the matter should be remitted for reconsideration.

    The testimony of the applicant and the witnesses  

22. Having listened to the delegate’s interview with the applicant and taken oral evidence from her myself, I can understand why the delegate did not find the applicant credible. I did not find her a compelling witness. Other than the account she gave about an incident involving a man who tried to hit when she came to his door to preach shortly before she left Lebanon, her oral evidence was generally vague, disjointed, and rambling. The applicant claimed in her statutory declaration that she had experienced an increasing number of threats to her personal safety while preaching, and she reiterated that claim at the hearing. Yet I found it most difficult to elicit clear and precise details from her about that harm. On the occasions I was able to obtain some detail from her, her evidence did not seem to support her claim that she was harmed for reasons of her religion.

23. To illustrate, when I asked the applicant for examples of the past harm she had experienced other than the incident which occurred shortly before she left Lebanon, her response was hard to follow. She referred, amongst other things, to an incident which occurred when she asked that a car parked across her driveway be moved and being hit on the head by a young man. She mentioned the persecution of Jehovah's Witnesses and knife attacks during the civil war, and her husband being threatened with a gun to his head. When I questioned how the car incident was related to religion, her response was equally jumbled and hard to understand and included references to being in a highly populated Muslim area, segregation, people not being normal because of the war, differences in religion, the party system, Muslims being against Christians for 35 years, the build-up of hatred, and Jehovah’s Witnesses being aligned with Jesus Christ. None of these matters in and of themselves indicate that the person who harmed the applicant on that occasion did so for reasons of religion. Further, when I sought to clarify when this car incident occurred, the applicant replied it was in 1990 or 1995 which is well before she became a Jehovah's Witness and thus could not have been related to her being a Jehovah's Witness. Similarly, when I questioned her about the knife attacks she referred to given the 15 year civil war in Lebanon ended in 1995, 10 years before she became a Jehovah's Witness, she seemed to suggest that a knife attack had occurred about 5 or 10 years ago when one of her sons was studying at home and she asked some people outside her home to quieten down. When I queried how that was related to religion, the applicant response was unclear. She referred vaguely to an environment of harassment, and said they went directly to her son, and that she was emotionally and psychologically upset. None of this indicates that religion was a factor in the incident.

24. The fact the applicant was only able to provide clear and precise details about one incident of past harm for reasons of her religion despite claiming to have experienced harm on several occasions, left me with the impression that she had either rehearsed her testimony about that one incident and /or that her other claims of past harm for reasons of religion were not true.

25. I found the applicant’s [Relative A] a similarly unconvincing witness. Her [Relative A] also claimed to have experienced instances of harm in Lebanon because she is a Jehovah's Witness and, like the applicant, claimed to have experienced an incident while doing door-to-door preaching shortly before she decided to leave Lebanon and seek protection in Australia. She was keen to tell me about that incident but, like the applicant, when I sought details about other instances of harm she was vague and unforthcoming.  

26. [Leader A] on the other hand was a better witness. I found his testimony measured, thoughtful, forthcoming, clear and precise. He testified that he did not know the applicant in Lebanon and that they met through the [Suburb 1] congregation where he is an elder. He testified that while preaching in Lebanon he had been threatened with clubs and thrown against a wall. He said his wife had water thrown on her from a window while she was preaching and that a group of students had once planned to attack his daughter because she is a Jehovah's Witness but the attack did not occur because his son, who is not a Jehovah's Witness, threatened the students. 

27. Due to the unsatisfactory nature of the applicant’s testimony I have doubts whether her claims about past harm due to her religion are entirely true. However, for reasons which I explain further below I am not able to confidently find that she has never been harmed reasons of religion.

    The applicant’s nationality and third country protection

28. The applicant has consistently claimed to be a national of Lebanon. I sighted her Lebanese passport at the hearing. I thus accept that she is a national of Lebanon.

1. The applicant claims and her passport confirms that she was born in Syria. According to her protection visa application both her parents were born in Lebanon and are now dual Lebanese and [Country 1] nationals. Generally speaking, countries tend not confer nationality on a person purely on the basis of the country of their birth. Usually a person must also be a descendent of a national of the country in which they were born. Syria’s current nationality law confers nationality upon a child born in Syria if the father is a Syrian national.[1] I note that this law post-dates the applicant’s birth. However, in the absence of any evidence to indicate that the applicant acquired Syrian nationality merely by virtue of having been born in Syria, I accept that she is not a national of Syria.

   [1] Syrian Law Journal, ‘The Right to Syrian nationality’, 23 June 2016, /index.php/right-syrian-nationality/.

2. As stated above, Australia does not have protection obligations in respect of a non-citizen who has a right to enter and reside in a third country, if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied. According to information from DFAT and the Syrian Tourism Ministry,[2] citizens of Arab states can enter Syria without an entry visa and remain in Syria for up to 15 days without what was is referred to as permission of residency. However, Arabs and foreigners born in Syria are said to be spontaneously granted permission of residency. The information indicates that residency permission does not include a permission to work and that Lebanese citizens should report to the nearest police station within six days of entry to obtain an ID card to facilitate their stay and movement within Syria. According to DFAT, a residency permit is normally valid for six months but also may be valid for up to one year. Thus, the information indicates that by virtue of being born in Syria the applicant has a right to enter and remain in Syria for a period of at least up to six months. However, the question is whether that right amounts to a right to enter and reside of the kind referred to s.36(3).

   [2] Tribunal file at ff.92-93.

3. In considering whether an applicant has a right of residence for the purposes of s.36(3), the Tribunal is not required to examine or consider any particulars or circumstances of an applicant in the third country other than as required by the exceptions in ss.36(4)-(5A)).[3] However, the situation in Syria is widely known. The civil war which has been going on there for five years now is the deadliest conflict of the 21st century and a humanitarian catastrophe.[4] More than 400,000 people have been killed and about 12 million people, about half the country’s pre-war population, have been displaced.[5] DFAT and the United States Department of State (USDOS) report that the security situation is extremely dangerous and unpredictable and that no part of Syria is safe from violence.[6] Given those conditions, I find that the applicant’s right to enter and remain in Syria is not a right to enter and reside, temporarily or permanently, of the kind referred to in s.36(3).[7]

   [3] MZAIU v MIBP [2015] FCCA 1898 (Judge McGuire, 29 July 2015) at [18], [21].

   [4] Al Jazeera, ‘Syria’s Civil War Explained’, 7 February 2017, news/2016/05/syria-civil-war-explained-160505084119966.html.

   [5] Ibid and United States Institute of Peace, ‘The Current Situation in Syria’, 13 December 2016

   [6] DFAT, Syria travel advice, 15 September 2016, Countries/middle-east/Pages/syria.aspx; USDOS, ‘Syria Travel Warning’, 11 October 2016,

   [7] In reaching that conclusion I have had regard to the obiter observation of Flick J SZRTC v MIAVC (2014) 224 FCR 570 at [48] that a right to enter into a third country but thereafter remain in economic or physical conditions so devoid of any acceptable standard may be found to not constitute a right of residence of the kind described [in s.36(3)].

4. There is no evidence before me that the applicant has a right to enter and reside in any other country. I thus find that s.36(3) does not apply to the applicant with respect to Syria or any other third country.

   Is the applicant a Jehovah's Witness

5. Despite the generally unsatisfactory nature of the applicant’s testimony during the course of the interview and the hearing, she did demonstrate a familiarity with and understanding of the beliefs and practices of the Jehovah's Witnesses religion.[8] Further, the photographic evidence, testimony of [Leader A], the letters from the elders of the congregations in Lebanon and Australia, and the blood cards support her claims that she became a Jehovah's Witness in 2005 and has been a practising Jehovah's Witness since then. I thus accept that the applicant has been a Jehovah's Witness since 2005 and that her practice in Lebanon and Australia has included attending Jehovah's Witness gatherings and door-to-door preaching.

   [8] In this regard I have had regard to information on the official Jehovah's Witnesses website about the beliefs and religious practices of Jehovah's Witnesses:

6. The applicant has not claimed nor does the evidence suggest that she will be persecuted in Lebanon because of her religious activities in Australia. Hence, s.5J(6) is not a relevant consideration in this case nevertheless I do believe that she has engaged in those religious activities as part of her religious practice and not for the purpose of strengthening her claim to be a refugee.

   Information about the treatment of Jehovah's Witnesses in Lebanon

7. In assessing the applicant’s claims I have had regard to the DFAT Country Report as well as information from a number of sources about the treatment of Jehovah's Witnesses in Lebanon. There is limited independent evidence to support the applicant’s claims. In fact two recent reports, one by the Minority Rights Group International (MRG) [9] and the other by the United Nations Special Rapporteur on freedom of religion or belief (the Special Rapporteur),[10] report no physical violence or persecution against Jehovah's Witnesses in Lebanon.[11]

   [9] El Rajji, R., The leaves of one tree: Religious minorities in Lebanon (MRG Report), Minority Rights Group International, 10 December 2014,

   [10] Report of the Special Rapporteur on freedom of religion or belief on his mission to Lebanon (Special Rapporteur Report), 30 November 2015, Issues/Religion/A.HRC.31.18.Add1.pdf.

   [11] MRG Report, p.4 and Special Rapporteur Report at [25].

8. The following is a summary of the information I have had regard to in making my decision.   

9. Lebanon is a country of religious diversity. An estimated 56 per cent of the population are Muslim, about 35 per cent are Christian, approximately 5 per cent is Druze and there are small numbers of Jews, Bahais, Buddhists and Hindus. [12]  Of the Muslim population, about 28 per cent are Sunni Muslims, about 20 per cent are Shia and there is small number of Alwaites and Ismailis.[13] The two largest Christian groups are Maronites and Greek Orthodox Christians but there are many other Christian groups including Assyrians, Chaldeans, Copts, Roman Catholics, Baptists, and Mormons.[14] According to the 2016 Jehovah's Witnesses Yearbook, there were 57 Jehovah's Witnesses congregations in Lebanon in 2014, 66 people were baptised in 2015 and the peak number of ‘publishers’[15] in 2015 was 3,734.[16]

   [12] USDOS, 2015 International Religious Freedom Report – Lebanon (USDOS 2015 Religious Freedom Report), 20 May 2015, p.2, index.htm?year=2014&dlid=238466# wrapper.

   [13] Ibid.

   [14] Ibid.

   [15] I understand the term ‘publishers’ to refer to those who do door-to-door preaching.

   [16] Watch Tower Bible and Tract Society of Pennsylvania, 2016 Yearbook of Jehovah's Witnesses, January 2016, p.182-183,

10. Religious groups in Lebanon may apply to the government for official recognition. However, Article 9 of the Lebanese Constitution provides for absolute freedom of conscience without reference to recognition.[17] Further, the Constitution protects the free exercise of religious rites as long as public order is not disturbed, and provides for equality before the law and enjoyment of the same civil and political rights for all.[18]  By law, an individual is free to convert to a different religion although the law does not address freedom to proselytise.[19] In 2009, the Ministry of the Interior allowed all citizens to remove their religion from their ID card and civil registry papers.[20]

    [17] MRG Report, p.3.

    [18] Ibid and Special Rapporteur Report at [10].

    [19] USDOS 2015 Religious Freedom Report, p.3.

    [20] MRG Report, p.3 and Special Rapporteur Report at [43].

11. Official recognition confers certain benefits on religious groups. For example, baptisms and marriages performed by such groups are recognised by the government, they are entitled to tax-exemptions, can own property collectively, and have the right to administer their own family and personal status matters in areas such as marriage, divorce, child custody and inheritance.[21] As there is no civil marriage or civil court in Lebanon this means that unrecognised religious groups cannot perform legally recognised marriages or divorce proceedings, or determine inheritance issues.[22] The sources indicate and I accept that Jehovah's Witness are not a recognised religious group.[23] However, I have found no evidence that the Jehovah's Witnesses community in Lebanon has ever applied for recognition in Lebanon. The applicant claimed at the hearing that Jehovah's Witnesses have not sought recognition because it would be necessary to indicate some political affiliation in the application for recognition and Jehovah's Witnesses are not political. I accept that Jehovah's Witnesses regard themselves as politically neutral and do not vote.[24] However, according to the independent evidence before me, a religious group seeking recognition must submit a statement of its doctrine and moral principles to the cabinet which then assesses whether the group’s principles accord with the government’s perception of popular values and the constitution.[25] There is no indication that a political affiliation must be nominated. I thus do not accept the reason proffered by the applicant for why Jehovah's Witnesses in Lebanon have not applied for recognition.

    [21] USDOS 2015 Religious Freedom Report, p.3 and Special Rapporteur Report at [42], [44].

    [22] MRG Report, p.3.

    [23] DFAT Report at [3.36], Special Rapporteur Report at [22] and MRG Report, pp.2-3.

    [24] Jehovah's Witnesses website, ‘Why Do Jehovah's Witnesses Maintain Political Neutrality’,

    [25] USDOS 2015 Religious Freedom Report, p.3 and Special Rapporteur Report at [42].

12. I note that [Leader A] claimed that Jehovah's Witnesses is a banned religion in Lebanon. In support of that assertion he referred me to a Response to Information Request prepared by the Immigration and Refugee Board of Canada.[26] The source of the information about the ban was a submission made by the European Association of Jehovah's Christian Witnesses (EAJCW) to the United Nations Universal Period of Review (UPR) in 2010. I have been unable to obtain that submission but located a submission made by the EAJCW to the United Nations UPR in 2015 which also refers to the banning of Jehovah's Witnesses in Lebanon.[27] Their assertion that Jehovah's Witness is banned in Lebanon is based on a 1964 recommendation by the Israel Boycott Office of the League of Arab Nations Secretariat which the EAJCW said ‘effectively’ bans the worship of Jehovah's Witnesses in all Arab countries.[28] The EAJCW states that in 1971 the Lebanese Council of Ministers approved the suggestion to ban Jehovah's Witnesses in Lebanon.[29] The use of the word ‘effectively’ by the EAJCW raises questions about what the recommendation and subsequent approval actually stated and whether, in fact, there was any such ban. The EAJCW does not indicate that the ‘ban’ is enshrined in any law in Lebanon, or officially enforced or applied by the Lebanese authorities. Further, I found no independent evidence to support the existence of such a ban. Having regard to the independent evidence before me, I do not accept that Jehovah's Witnesses is a banned religion in Lebanon and conclude that the Jehovah's Witnesses religion is not a registered religion in Lebanon because the Jehovah's Witnesses have not sought official recognition.

    [26] Immigration and Refugee Board of Canada, ‘Lebanon: Situation of Jehovah's Witnesses, including treatment by society and authorities; state protection available in cases of discrimination or mistreatment (2006-November 2013), 12 November 2013, RirRdi/Pages/index.aspx?doc=454896&pls=1.

    [27] The European Association of Jehovah's Christian Witnesses, Contribution to the Report of the U.N. High Commissioner for Human Rights for the 23^rd session of the UPR (2-13 November, 2015), 18 March 2015,

    [28] Ibid at [4].

    [29] Ibid.

13. Additionally, I find that it does not follow that the lack of official recognition means that it is illegal for Jehovah's Witnesses to practise their religion in Lebanon. As stated above the Constitution provides for freedom of conscience without reference to recognition and for freedom to practise provided public order is not disturbed. The sources I have consulted indicate that unrecognised groups including Jehovah's Witnesses are generally able to perform religious rites and assemble together without interference from the authorities.[30] Thus, I do not accept the applicant’s claim that Jehovah's Witnesses are not permitted to gather together to worship and practise their religion or that they have to do so in secret and in small numbers to avoid persecution by the authorities. Instead, I conclude that they do so because they are not a recognised religious group and hence to ensure public order is not disturbed. Further, the other discrimination she claims Jehovah’s Witnesses are subjected to by the State such as not being able to legally marry are the result of the group not obtaining recognition rather than intentional acts by the State to discriminate against or disadvantage Jehovah’s Witnesses.

    [30] DFAT Report at [3.36]; USDOS 2015 Religious Freedom Report, p.4; MRG Report, p.3; and Special Rapporteur Report at [45].

14. In relation to the applicant’s claim that she and other Jehovah's Witnesses have been harmed while proselytising, I accept that Jehovah's Witnesses believe they are commanded by the Bible to proselytise to the unconverted[31] and that as a genuine, practising Jehovah's Witness the applicant would perform door-to-door preaching if she returned to Lebanon. As I have noted above the law does not address the freedom to proselytise however I have found no evidence to support the applicant’s claim that proselytising is unlawful in Lebanon. Further, while the sources I have consulted indicate that proselytising is viewed negatively in Lebanon there is limited evidence of Jehovah's Witness being subjected to physical violence or threats of violence whilst engaging in door-to-door preaching. For example, several years ago the USDOS reported that the clerical establishment strongly discourages such activity[32] and in 2008 a news article reported a Jehovah's Witness from Lebanon claiming he was beaten sometimes whilst proselytising.[33]  More recently Freedom House reported that proselytising is strongly discouraged by religious leaders and communities, sometimes with the threat of violence.[34]  In contrast, DFAT assesses that unrecognised religious groups are generally able to proselytise without attracting official or societal violence.[35] Further, while the respondents interviewed by the MRG, which included Jehovah's Witnesses, gave accounts of societal discrimination and verbal abuse, none mentioned attacks or incidents of physical violence against them.[36] Similarly, the Special Rapporteur reported that although members of the Jehovah's Witnesses community felt exposed to stereotyping and discrimination they confirmed there was no religious persecution in Lebanon and that they could live in safety and in accordance with their religious convictions.[37]  Hence, it appears that the applicant has exaggerated the extent to which she and other Jehovah's Witness face serious harm in Lebanon.

    [31] Jehovah's Witnesses website, ‘Why do Jehovah's Witnesses Preach From House to House?’,

    [32] USDOS, 2011 International Religious Freedom Report - Lebanon, p.6,   documents/organization/193107.pdf.

    [33] Nash, M, ‘Faith comes knocking’, NOW Lebanon, 16 November 2008,

    [34] Freedom House, 2016 Country Report – Lebanon,

    [35] DFAT Report at [3.36].

    [36] MRG Report, p.4.

    [37] MRG Report, p.4.

    Does the applicant have a well-founded fear of persecution in Lebanon?

15. I am not bound by the findings and decisions of other Tribunal members but I can have regard to them. In recent years Tribunal members have accepted as credible claims made by Jehovah's Witnesses from Lebanon that they have experienced physical harm and threats of physical harm in the course of undertaking door-to-door preaching.[38] Having regard to the claims of other Jehovah's Witnesses from Lebanon and the albeit limited independent evidence about attitudes towards proselytising and harm experienced by Jehovah's Witnesses while door-to-door preaching, I accept that the applicant and other Jehovah's Witnesses in Lebanon have been physically harmed and/or threatened with  physical harm for reasons of their door-to-door preaching.

    [38] They include cases 1504203, 141886 and 1418759 which the applicant’s migration agent brought to my attention.

16. Having regard to that past harm and the independent evidence, I find there is a real if not very high chance that in the reasonably foreseeable future the applicant will subjected to verbal abuse, verbal threats of physical harm and/or actual physical harm while door-to-door preaching by a person or persons she preaches to. I find that such harm, individually or cumulatively, amounts to persecution involving serious harm and that the reason for the persecution would be due to negative attitudes towards the Jehovah’s Witnesses religion and/or proselytising. I thus find that the persecution would be systematic and discriminatory and for reasons of religion. The evidence before me does not suggest that this persecution would be confined to one part of Lebanon. I therefore find that the real chance of persecution relates to all areas of Lebanon. In addition, I find that it would not be a reasonable step to take to avoid the persecution for the applicant to cease door-to-door preaching because it forms an important part of her religious practice as a Jehovah's Witness.

17. In relation to whether effective measures are available to the applicant in Lebanon to protect her against the persecution she would face, I note that according to the DFAT Country Report, some Shias claim that the ISF, Lebanon’s police and security body, has a partisan bias towards Lebanon’s Sunni community.[39] Further, the U4 Anti-Corruption Resource Centre reports that police corruption is a serious problem in Lebanon and that because employment in the police is based on the confessional power-sharing arrangements, maintenance of patronage networks rather than equal treatment is encouraged.[40] This is particularly significant in the applicant’s case given Jehovah's Witnesses are not, by virtue of not registering as a religious group, part of the confessional political system in Lebanon. The USDOS reports that torture occurred in certain police stations and while the government denied the use of torture, the authorities acknowledged violent abuse sometimes occurred during preliminary investigations at police stations.[41] And although the police are subject to laws against bribery and corruption, a lack of enforcement limited the effectiveness of the laws, and officials often engaged in corrupt practices with impunity and on a wide scale.[42] This information leads me to conclude that Lebanon does not have a reasonably effective police force and hence I find that effective protection measures provided by the State are not available to the applicant. In addition, there is no evidence before me to indicate that there is any other party or organisation in Lebanon that could provide protection to the applicant against the persecution she faces from non-state agents in the course of her door-to-door preaching. I therefore find that effective protection measures as defined in s.5LA are not available to the applicant.

    [39] At [5.9].

    [40] U4 Anti-Corruption Resource Centre, Overview of corruption and anti-corruption in Lebanon, 15 October 2012, p. 4, expertanswer-350.pdf.

    [41] USDOS, 2015 Human Rights Report – Lebanon, p.4,   organization/253147.pdf.

    [42] Ibid, p.25.

1. On the basis of the above findings, I conclude that the applicant has a well-founded fear of persecution in Lebanon within the meaning of s.5J.

   Refugee criterion

2. Having found that the applicant has a well-founded fear of persecution in Lebanon, I find that she is a refugee within the meaning of s.5H. I am therefore satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   DECISION

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

   Mila Foster
   Member

   
   

   ATTACHMENT  -  Extracts from Migration Act 1958

   36Protection visas – criteria provided for by this Act

   …

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

   (a)   a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

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

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

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

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

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

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

   (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

   (4) However, subsection (3) does not apply in relation to a country in respect of which:

   (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

   (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

   (a) the country will return the non-citizen to another country; and

   (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

   (5A) Also, subsection (3) does not apply in relation to a country if:

   (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

   (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

   5 (1) Interpretation

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H  Meaning of refugee

   (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)            in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)            in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.

   Note:    For the meaning of well‑founded fear of persecution, see section 5J.

   (2)Subsection (1) does not apply if the Minister has serious reasons for considering that:

   (a)   the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

   (b)   the person committed a serious non‑political crime before entering Australia; or

   (c)   the person has been guilty of acts contrary to the purposes and principles of the United Nations.

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

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

   (b)   significant physical harassment of the person;

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

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

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

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

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   …

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.