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
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
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).
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
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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
1601961 (Refugee) [2017] AATA 280
Case
[2017] AATA 280
Decision Date
CaseChat Overview and Summary
This matter concerned an application for a protection visa by a woman from Lebanon. The applicant claimed that she feared persecution in Lebanon due to her religious beliefs as a Jehovah's Witness. She asserted that her religion is not legally recognised, that Jehovah's Witnesses are viewed as a political organisation, and that they face significant impediments to their religious freedom, including restrictions on congregating and preaching, denial of basic rights, and increasing hostility from the general population and authorities, exacerbated by the presence of extremist refugees. The applicant also detailed specific incidents of threats and violence directed at her and her husband, and noted her own medical condition which could be exacerbated by a lack of appropriate medical treatment due to her religious beliefs.
The legal issues before the court were whether the applicant satisfied the criteria for a protection visa under section 36(2) of the Migration Act 1958, specifically whether she met the definition of a refugee under section 5H, by having a well-founded fear of persecution for reasons of religion. The court was required to consider the applicant's claims in light of relevant country information and policy guidelines, and to determine if any actions taken by the applicant in Australia should be disregarded in assessing her fear of persecution, pursuant to section 5J(6) of the Act.
The court found that the applicant had a well-founded fear of persecution in Lebanon. It applied the principles outlined in the Migration Act, including the definition of a refugee and the meaning of a well-founded fear of persecution, considering that the fear must be for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and that there must be a real chance of persecution in all areas of the receiving country. The court also considered the provisions regarding effective protection measures and the modification of behaviour to avoid persecution. Crucially, the court determined that the applicant's claims, supported by her statutory declaration and other evidence, established a genuine fear of serious harm due to her religious beliefs and practices, and that she could not access effective protection in Lebanon.
The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the Migration Act, finding that she is a refugee in respect of whom Australia has protection obligations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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 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
Decision
Reasons for decision
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 The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Mila FosterMemberATTACHMENT - Extracts from Migration Act 195836Protection 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.
Ratio Decidendi
Legal Principle Established
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 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 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. 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. 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. 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, andf.oral evidence given by the applicant’s [Relative A] and [Leader A] at the hearing. 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.