1605781 (Refugee)

[2018] AATA 4998

1605781 (Refugee) [2018] AATA 4998 (5 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605781

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:5 November 2018

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 05 November 2018 at 1:21pm

CATCHWORDS

REFUGEE – protection visa – Lebanon – imputed political opinion – mental illness – religion – religious delusions of being a prophet – unpredictable behaviour expressing religious views – threats from religious militia – non-compliance with medication – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2

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 on 4 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [an age]-year-old national of Lebanon and a Sunni Muslim. He has [specified family members]. One of his [siblings] resides in [another country]; his other [siblings] reside in Lebanon with his parents. He has [specified relatives] in Australia. He has lived in Lebanon [and two other countries] prior to arriving in Australia. He graduated from [a foreign college] in [year], and he has travelled extensively to a number of countries since, working as [an occupation] for [an international business]. Prior to joining [that business], he had worked as [two specified roles] from 2009 to 2010. He has previously travelled to Australia on [number] occasions in the period from 2012 to 2014.

3. Most recently, he arrived to Australia on a [temporary] visa [in] December 2014. He later departed Australia [in] March 2015 and returned [in] August 2015. He lodged an application for protection on 16 October 2015 and his application was refused by a delegate of the Minister of Immigration on 4 April 2016.

   Application for a protection visa

4. In his protection visa application, the applicant made the following claims.

5. His close childhood friend, [Mr A], who is his neighbour, is now a believer of the Islamic State. The applicant was verbally abused by [Mr A] (aka [Mr A’s alias]) because he had offended his religious beliefs by swearing at him and insulting ISIS. He received death threats more than several times. A few days before he left Lebanon, he was physically abused by two strangers on a bike. The strangers attacked him using their hands and a piece of metal; he was hit on the back of his head and his back. The strangers were armed and they threatened to kill him and tried to steal his passport. He was convinced the strangers were sent by [Mr A]. He cannot relocate because [Mr A] has contacts with other Muslim extremists all over the country and he sought revenge on him because he had offended his religious beliefs. If he were to seek help from the government, he would put his family in danger from extremists and [Mr A].

6. In support of his application, the applicant submitted the following documents;

   ·Email, dated 1 March 2016, containing several indistinct images.

   ·Email, dated 1 March 2016, containing photos of [Mr A], untranslated [online] messages and an untranslated [social media] message from [Mr A’s alias].

   ·Email, dated 2 March 2016, containing images of a police report the applicant filed in relation to a purported assault [in] July 2015.

   ·Email, dated 2 March 2016, containing a report from a physiotherapist dated 30 September 2014, in relation to his foot pain and a legal physician report on the injuries sustained by the applicant after the assault.

7. The applicant was interviewed by a delegate of the Minister on 3 March 2016. Where relevant, his oral evidence to the delegate is referred to below.

8. The delegate found the applicant’s claims not credible and refused his application for a protection visa.

   The review application

9. The applicant applied for a review of the delegate’s decision on 26 April 2016. He was represented by a registered migration agent in connection with the review.

10. On 19 September 2018, the applicant provided to the Tribunal a copy of a mental health assessment, dated [in] July 2018, prepared for the purpose of a court report in relation to a charge of stalking/intimidation against the applicant. The report states that the applicant has a diagnosis of [Condition 1] and has had multiple psychiatric admissions to hospitals in Lebanon and Australia. He was last discharged from hospital in May 2018. The report also indicated that the applicant is ‘insightless’ and does not agree with the diagnosis. He had been non-compliant with his medication for 12 months. It was stated that the applicant had been engaging in risk taking behaviour and harbouring the belief that the government has been monitoring him and people are trying to hurt him. He is unwilling to accept ongoing treatment voluntarily, stating that medication has never worked for him.

11. The applicant also submitted a large number of documents, relating to his past psychiatric admissions and diagnosis, documenting his history and significant level of impairment.

    The hearing

12. The applicant appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The applicant was assisted by an interpreter in the Arabic and English languages. Where relevant, the applicant’s evidence to the Tribunal is referred to below.

    The certificate

13. The Department’s file relating to the applicant’s protection visa application contained a s.438(1)(a) certificate in respect of certain documents on that file. It is appropriate to address the validity of the s.438(1)(a) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest, must be capable of forming ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence’.

14. The folios subject to the s.438(1)(a) certificate consisted of a copy of  a ‘consent to identification test’ and authorised officer’s declaration and the Department’s internal disclosure decision checklist. The only reason stated in the s.438(1)(a) certificate was that the information contained in the folios identified was related ‘to internal working documents and business affairs’. The Tribunal is not satisfied that this reason provides a sufficient basis for public interest immunity. The Tribunal finds the certificate to be invalid and it has proceeded to treat the document in the usual way as if there was no certificate.

    CRITERIA FOR A PROTECTION VISA

15. 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, he or she 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.

16. 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 because the person is a refugee.

17. 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). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

18. 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. 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, which are extracted in the attachment to this decision.  

19. 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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

20. 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 – 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

22. The medical evidence submitted, which the Tribunal accepts, indicate that the applicant has a diagnosis of [Condition 1]. The Tribunal accepts that he has had multiple psychiatric hospital admissions due to psychosis, including on four occasions in Lebanon and on seven or eight occasions in Australia. In 2017 alone, he was hospitalised on four occasions. His first admission was in his [age range] in Lebanon where he was diagnosed with drug induced psychosis and [Condition 1]. Most recently, he was admitted to [a mental health facility] [in] April 2018 with [specified conditions]. The applicant has been prescribed with psychotropic medication; however, it has been reported that he has been non-compliant with medication for 12 months. In addition, during his mental health assessment [in] May 2018, he denied a range of psychotic symptoms and disagreed with his diagnoses.

23. According to the medical evidence submitted to the Tribunal, the manifestation of behaviours that underlies the applicant’s diagnoses include: [details deleted]. More importantly, in so far as it is relevant to the assessment of the applicant’s protection claims, he believes that he is being monitored and watched by the government and he believes that he is a prophet and the Archangel Gabriel, a belief he has harboured for a number of years, and that he was sent to teach the world to love. The Tribunal accepts this medical evidence.

24. The applicant’s evidence at the hearing was consistent with the contents of the medical evidence submitted. His evidence was reflective of the beliefs underlying his diagnosis and his lack of insight into the complexities of his diagnosis and the recommended treatment. However, far from being incoherent, the applicant was lucid and articulate when presenting his evidence in relation to the behavioural manifestations of his mental illness. He was forthright in acknowledging his inexplicable behaviour when he has been divorced from reality and he was candid in explaining how his behaviour has impacted his safety in the past.

25. In his evidence, the applicant referred to the unpredictability of his behaviour and his inability to stop himself from expressing a view or taking certain actions in situations that could put him in imminent danger. The Tribunal accepts that, on one occasion, in the midst of conflict between armed militia groups in the streets of Beirut in 2008, affected by psychosis, paranoia and hallucinations, the applicant had ran out of his house, charging towards a government building. He was immobilised when a soldier hit him on the head with the butt of his rifle. He lost consciousness and woke up in a hospital. The Tribunal also accepts that, on another occasion, the applicant had inadvertently driven his car across the Syrian border. Upon being stopped by Syrian border police, the applicant had demanded to see Bashar al-Assad and was promptly escorted to [a] prison, where he was detained until his father was able to produce hospital records to demonstrate that he is mentally ill. The applicant told the Tribunal that he ‘speaks up’ and he does ‘things’ in response to what he sees others say or do. He believes he is a prophet and he acts upon his beliefs. He is not a practising Muslim, he considers only God to be the ultimate decision maker and he believes what is written in sacred texts can be altered.

26. The Tribunal notes that DFAT’s most recent Country Information Report in relation to Lebanon does not specifically address mental illness. However, in relation to people with disabilities, the report states:

    DFAT understands that people with a disability are particularly vulnerable… Overall, DFAT assesses that people with a disability face a high risk of official and societal discrimination, and that Lebanese authorities regularly fail to ensure adequate support for people with a disability.[1]

    [1] DFAT, DFAT Country Information Report – Lebanon, 23 October 2017.

27. The Tribunal accepts that, as a consequence of his mental illness, the applicant’s behaviour can be unpredictable and unfiltered. The applicant’s claims as reflected in his application for a protection visa and Departmental interview, including his encounters with his neighbour, as well as others, culminating in him being assaulted in July 2015, when placed in the context of his mental illness, do not appear to be incredible or implausible.

28. In an article published in The New Yorker, Elias Muhanna noted:

    In Lebanon, you can’t say whatever you want, at least not about religion. The country may have the most liberal press in the Arab world, but, given Lebanon’s diverse sectarian makeup and volatile politics, journalists and artists tend to treat the subject of faith carefully.[2]

    [2] Muhanna, E, ‘The Fate of a Joke in Lebanon’, The New Yorker, 26 September 2015, <

29. The applicant resided in Tripoli with his parents. As suggested by the sources consulted by the Tribunal, Tripoli’s Sunni-majority population has a historical tendency toward radicalism, and the ‘place [is] constantly on the verge of violent conflict and the city ‘seems to lie in ISIS’s shadow’.[3] Raphael Lefevre has observed:

    [T]he rise of Sunni extremism in the Syrian conflict has unleashed disturbing religious and security dynamics in Lebanon, with al-Qaeda affiliates that are fighting in Syria, such as the Nusra Front and the Islamic State of Iraq and the Levant, launching Lebanese chapters.

    Nowhere is this spillover starker than in the northern port of Tripoli, Lebanon’s second-largest city, where local sectarian and political tensions have been severely exacerbated.[4]

    [3] Anderson, S, ‘In Northern Lebanon, Life Under ISIS’s Shadow’, New York Magazine Intelligencer, 14 September 2014, <

    [4] Lefevre, R, ‘The Roots of Crisis in Northern Lebanon’, Carnegie Middle East Centre, April 2014, <

30. The general sensitivities surrounding the subject of faith and the prevalence of radical Islamic view in northern Lebanon recently combined to shock many Lebanese nationals when a cleric and his brothers murdered a man and mutilated his body in the northern district of Dinniyeh after a ‘blasphemous slur’ was attributed to the victim. Reportedly, the victim had ‘[mentioned] God over the high prices’.[5]  

    [5] Shock in Lebanon as Man Killed in 'IS-Like' Fashion over 'Blasphemy', Naharnet, 28 August 2018, <

31. The Tribunal is of the view that the applicant’s persistent delusions that he is a prophet or the Archangel Gabriel and his propensity to express, both in words and action, these delusions in any setting and in an unpredictable manner, would be regarded by many in Lebanon as highly offensive to religious sentiments, particularly by those who would be unaware of the applicant’s mental illness. The Tribunal finds that, if the applicant were to return to Lebanon, he would continue to express publicly and privately the firmly held delusional beliefs associated with his mental illness. The evidence before the Tribunal and the applicant’s pattern of behaviour in the past suggest that, in expressing and acting upon his beliefs, he may engage in unpredictable, reckless, irrational, antagonising and, ultimately, self-destructive behaviour. The applicant has shown a tendency to deny or disapprove of his own diagnoses. It is, hence, unlikely that he will seek appropriate medical treatment on his own volition, and given the lack of mental health services and facilities available in Lebanon,[6] the Tribunal is of the view that the applicant is unlikely to receive medical attention or treatment for his condition.

    [6] El-Jardali, F, Yehia, F, ‘K2P Policy Brief: Securing Access to Quality Mental Health Services in Primary Health Care in Lebanon’,  Knowledge to Policy (K2P) Center, Faculty of Health Sciences, American University of Beirut, April 2014, 33.16-17;  ‘Young people are changing the face of mental health in Lebanon’, Positive News, 11 May 2015, CXBD6A0DE1968.

32. The Tribunal, therefore, is satisfied that, if the applicant were to return to Lebanon, there is a real chance that he would face significant physical harassment and significant ill-treatment at the hands of religious groups and/or members of the general public. The Tribunal is satisfied that such treatment would amount to serious harm under s.5J(4)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s.5J(4)(c). The Tribunal is satisfied that the real chance of persecution relates to all areas of Lebanon. The Tribunal is satisfied that the applicant’s views and behaviour will impute him with an adverse religious profile or political opinion, which is the essential and significant reason for his fear of persecution.

33. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

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

    Shahyar Roushan
    Senior Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

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

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

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

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    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.

    …

    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 them 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.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)    disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)    the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)    the characteristic is not a fear of persecution.

    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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …