1608337 (Refugee)

[2016] AATA 4660

1608337 (Refugee) [2016] AATA 4660 (4 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608337

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:4 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 04 November 2016 at 2:15pm

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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

   Background, Claims and Evidence

2. The applicants are citizens of Lebanon. They applied for protection visas [in] November 2013. The first named applicant (the applicant) submitted a Form 866C and her own claims for protection. The second named applicant (the applicant mother) also submitted a Form 866C and her own claims for protection. The third named applicant (the applicant father) submitted a Form 866D, for members of the family unit who do not have their own claims for protection but are included in the application.

   The Applicant

3. The applicant is [age] years old. She was born and resided in [Akkar]. She has completed [number] years of education. She is physically and intellectually disabled.

4. In her application for a protection visa she stated that she was born a ‘normal’ child. At the age of [age] she became ill and due to lack of medical services she suffered from [medical condition]. She became housebound ever since. She only ventured out to visit a doctor or a physiotherapist. On these occasions she was subjected to ridicule. People laughed at her and she felt ashamed, confining herself to her house. She became sick and had to go to hospital. In order to avoid these situations, her parents confined her to her house until she came to Australia. In Australia she has been able to walk without a walker and she can walk in the streets without any fear of ridicule. She fears being mistreated by members of the community in Lebanon.

   The Applicant Mother

5. The applicant mother is [age] years old. She was born and resided in [Akkar]. The applicant is the youngest of her [surviving] children. She has been the applicant’s primary carer since her illness. In her application for a protection visa she stated ‘my harm comes from the harm that my daughter had experienced from community we live in’. He daughter’s suffering became ‘unbearable’ and she was confined to home. She felt powerless watching what was happening to her daughter. She fears the community in Lebanon because of her daughter’s disabilities. The applicant mother stated that there are no ‘programs’ for her daughter to help her become self-reliant.

   Submissions

6. In a covering submission, the applicant’s then migration agent submitted that the applicant is mentally disabled and comes from [one] of the most disadvantaged and impoverished parts of Lebanon. Throughout her life she has suffered from ‘systematic intimidation and discrimination’ at the hands of the community where she lived. If she were to return to Lebanon, she will be subjected to ‘severe harm’ in Lebanon due to her membership of the particular social group of ‘women in Lebanon’ and the ‘sub-social group’ of ‘mentally disabled’. The Lebanese government is unable to protect her. The government does not provide any educational, social or health programs for citizens in the applicant’s situation. As a result, the applicant was left vulnerable and unable to cope with the ‘systematic ridicule of her community’, which left her confined to her house. The ridicule directed towards the applicant was also extended to her parents. Since arriving in Australia, her mental health has improved. She has been encouraged to go out and she is not fearful of ridicule or intimidation.

7. In support of the applications, the applicant’s submitted letters from their medical insurer addressed to the ‘treating doctor’, briefly describing the ailments suffered by each applicant. In the letter relating to the applicant it was stated that she has intellectual and physical disabilities that require ‘follow up and continuation of care’.

8. Other material was also submitted in support of the applications, including an April 2003 paper by Eddie Thomas and Sylvana Lakkis, titled ‘Disability and Livelihood in Lebanon’. The paper essentially discusses lack of access to education by children with disabilities and lack of access to employment and the labour market by people with disabilities in Lebanon. 

9. The applicants attended a Departmental interview [in] March 2014. The applicant and her mother gave oral evidence. Where relevant, the applicants’ evidence at the interview is referred to below.

10. The delegate refused the application [in] March 2014 and the applicant applied for a review of the delegate’s decision.

    Review Application

11. The applicants appeared before the then Refugee Review Tribunal (RRT) on 8 October 2014 (the first hearing). Only the applicant and the applicant mother gave oral evidence to the RRT. Where relevant, the applicant’s oral evidence at that hearing is referred to below.

12. On 24 October 2014, the RRT affirmed the delegate’s decision not to grant her a protection visa.

13. [In] April 2015, the then Assistant Minister for Immigration and Border Protection decided not to consider a request to exercise her public interest power under s.417 of the Act. In support of the request, the applicants had submitted that the circumstances in Lebanon have changed exceptionally. There have been multiple bombings, killing sprees and many kidnappings and abductions of both army and civilians. There have been sightings of ISIS militants in the applicant's hometown and many people from her village have been abducted and killed.

14. The applicant appealed the RRT decision to the Federal Circuit Court of Australia and the matter was remitted by consent to be determined according to law.

15. The matter is now before the presently constituted Tribunal (the Tribunal) pursuant to the order of the Court.

16. The applicants appeared before the Tribunal on 28 October 2016 to give evidence and present arguments. The Tribunal received oral evidence from the applicant, the applicant mother and the applicant father. The Tribunal also took oral evidence from the applicant’s [brother]; the applicant’s [sister-in-law]; the applicant’s [sister] and the applicant’s [brother-in-law]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the DFAT Country Report Lebanon (published on 25 February 2014); the DFAT Thematic Report-Sectarian Violence in Lebanon (published on 18 December 2013); and DFAT Country Report Lebanon (published on 18 December 2015).

    Analysis, Reasons and Findings

22. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    The Applicant

23. The claims put forward to the Department on the applicant’s behalf were deceptively brief and simple. Whilst in his oral and written submissions to the Department and the RRT, the applicant’s then representative stressed that the applicant has suffered from ‘systematic intimidation and discrimination’ at the hands of the community and that she was unable to cope with the ‘systematic ridicule of her community’, no other meaningful information or details were provided in support of these claims.

24. The applicant herself gave oral evidence to the Department and the RRT. The Tribunal has listened to the audio recording of this evidence. The applicant also gave oral evidence to the Tribunal at the hearing held on 28 October 2016. At the same hearing, the Tribunal also took the opportunity to probe the applicant and her witnesses further in relation to matters that it felt were pertinent to the assessment of the applicant’s claims.

25. The applicant’s intellectual disability was reflected in the manner in which she presented her evidence and communicated her claims. At the Tribunal hearing, whilst there were limitations in the applicant’s ability to comprehend some questions and communicate more complex narratives and ideas regarding her circumstances in Lebanon, she was able to convey her core complaints and grievances simply, clearly and sincerely. These expressions were entirely consistent with what she had repeatedly conveyed to the Department and the RRT. The Tribunal has little doubt that the applicant’s evidence at the hearing represented a genuine account of her experiences in Lebanon.

26. The applicant stated at the hearing that ever since she could remember, she had been subjected to ridicule, laughter, mockery, scorn and mimicry in her village in Lebanon by children, as well as adults. She was repeatedly called ‘idiot’ and ‘crazy’. These incidents occurred on every occasion that she left or was carried out of her house. On each occasion she felt extremely upset. She cried, screamed and demanded to be taken inside the house. Even when she was inside her house, the children climbed to the window to frighten her. Being inside made her ill with fever and vomiting, but she did not want to go out. When she had to visit the hospital, her family carried her out, which again exposed her to taunts and mockery.

27. The applicant mother gave evidence in support of her daughter. Whilst her capacity to communicate clearly appeared to be affected by her advanced age, physical frailty and illiteracy, the Tribunal found her evidence consistent, compelling and unblemished. The applicant mother stated that the applicant had shown great sensitivity to the treatment she had been subjected to on a regular basis since she was a child. She stated that, in response to the taunts and mockery from children and adults, the applicant became extremely agitated. She cried, screamed and her arms and legs stiffened which restricted her movements and bodily functions. She confined herself indoors until it became unbearable for her and when, at the insistence of her parents, she was brought out to sit on the veranda, she was again subjected to taunts and ridicule, which again forced her inside. The applicant mother stated that even when the applicant was inside the house, children threw pebbles at the windows or climbed up the windows to frighten her. 

28. The applicant’s [sister-in-law]also provided useful and frank evidence to the Tribunal in relation to the applicant’s circumstances in Lebanon. This evidence essentially related to her observations of the applicant’s situation during her visit to Lebanon in 2011. [The sister-in-law] stated that, during that visit, she had stayed with her parents-in-law for a period of three months. She stated the applicant’s disability has always been a ‘taboo’ subject amongst her siblings in Lebanon, who had felt embarrassed by their sister’s disability and were reluctant to acknowledge her circumstances. Moreover, they occasionally contributed to the ridicule she was subjected to. She stated that, during her visit in 2011, the applicant was mostly bedridden, she was unable to walk due to muscle stiffness in her legs and she was unable to use the bathroom unassisted or in a seated position. She did not want to go outside the house unless it was necessary for her to go to the hospital. [The sister-in-law] stated that, on one occasion, she repeatedly pressed the applicant to go outside for some fresh air. When the applicant eventually agreed and was taken to the veranda, children started to gather. She was taunted and ridiculed. The children also threw empty coke bottles and food scraps at her. She stated that she observed the applicant becoming extremely distressed and agitated. She started screaming and crying. She asked to be taken inside and she did not want to see anyone. [The sister-in-law] stated that it was not uncommon for adults to join the children in ridiculing the applicant and taunting her by shouting ‘when will you get married?’ and ‘when will you live by yourself?’. She stated that the applicant’s physical and psychological health had improved dramatically in Australia. She is not fearful of going outside. She has grown in independence and self-reliance. She is able to walk and use the bathroom without assistance. [The sister-in-law] added that the applicant has been prescribed anti-depressants to cope with her pre-existing depression and anxiety.

29. [The sister-in-law]’s evidence was corroborated by her husband and the applicant’s [brother].  

30. Following the hearing, the Tribunal received a letter from [the applicant’s GP], dated [October] 2016. In his letter, [he] stated that he has been the applicant’s GP since her arrival in Australia and that he has been treating her for anxiety and depression. He stated that, when the applicant arrived in Australia, she was suffering from ‘[medical conditions]’. [The GP] stated the applicant ‘relates having suffered from persistent verbal abuse and harassment whilst living overseas due to her being intellectually delayed’.

31. The Tribunal accepts the evidence provided by the applicant and members of her family, which it considers to be consistent, credible and reliable. The Tribunal also places weight on [the GP]’s evidence in relation to the applicant’s psychological state when she arrived in Australia. The Tribunal accepts that the applicant was subjected to discrimination, in the form of ridicule, verbal abuse, taunts and harassment, due to her disabilities. The Tribunal is of the view that, ordinarily, this type of discrimination may not constitute serious harm. The Tribunal, however, must determine whether, in the circumstances of this particular case, the form and extent of the discrimination the applicant was subjected to amounts to persecution for a Convention reason.

32. In Chan v MIEA it was recognised that persecution has traditionally taken a variety of forms of social, political and economic discrimination.[1] Justice McHugh in Applicant A v MIEA, observed that:

    Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group.[2]

    [1] (1989) 169 CLR 379 at 430 per McHugh J.

    [2] (1997) 190 CLR 225 at 258, per McHugh J.

33. In Chan v MIEA McHugh J stated:

    …to constitute “persecution” the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purposes of the Convention and Protocol. Measures “in disregard” of human dignity may, in appropriate cases, constitute persecution.[3] (emphasis added)

    [3] (1989) 169 CLR 379 at 430, per McHugh J.

34. Following the introduction of s.91R, in MIMA v Haji Ibrahim McHugh J further explained:

    The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[4] (emphasis added)

    [4] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].

35. His Honour described persecution for the purpose of the Convention as, ordinarily:

    ·unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason

    ·which constitutes an interference with the basic human rights or dignity of that person or the persons in the group

    ·which the country of nationality authorises or does not stop, and

    ·which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.[5]

    [5] Ibid at [65]

36. More recently, in WZARV v MIBP, the High Court held,

    It is persecution, involving serious harm inflicted by the violation of fundamental rights and freedoms, from which the Convention and s.91R of the Act are concerned to provide asylum. Both the Convention and s.91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence.[6] (emphasis added)

    [6] MIBP v WZAPN; WZARV v MIBP (2015) 320 ALR 467 per French CJ, Kiefel, Bell and Keane JJ at [71], Gageler J agreeing.

1. In SCAT v MIMA, in relation to claims made by a Sabean-Mandaian family to have been subjected to consistent verbal harassment for the reason of their religion, the Federal Court noted:

   If people are, from an early age, considered by the great majority of the people in the society in which they live to be “dirty”, are positively treated as if they are dirty, and if there is otherwise widespread and far reaching discrimination against them, it requires no degree in psychology to accept that this may well be very harmful to mental well-being. [7]

   [7] [2003] 76 ALD 625 at [21].

2. In SBTF v MIAC, the Federal Court cited SCAT v MIMA with approval and observed:

   It is necessary, if the appellant is to avail himself of the obligation Australia owes under the Refugee Convention, to establish that the persecution which he suffers involves serious harm to him. Section 91R of the Act gives instances of what will amount to serious harm. Section 91R(2), however, is not to be understood as meaning that other forms of serious harm not addressed in s 91R(2) would not satisfy s 91R(1). Section 91R(2) specifically states that the instances which are given in that subsection are not to limit what might amount to serious harm for the purpose of s 91(1)(b). SCAT v Minister for Immigration and Multicultural Affairs 76 ALD 625 supports the appellant’s contention that psychological harm may be serious harm within the meaning of s 91R.[8]

   [8] [2007] FCA 1816 (28 November 2007) at [48].

3. The Tribunal has accepted that the applicant was subjected to discrimination, in the form of ridicule, verbal abuse, taunts and harassment throughout, her life by the population of the town in which she resided in Lebanon. The Tribunal accepts that the conduct directed towards the applicant was unjustifiable, intensive, repetitive and prolonged. The Tribunal finds that the conduct had caused her distress and much humiliation, clearly interfering with her dignity. The Tribunal further accepts that the abhorrent and sustained nature of the discrimination directed towards the applicant had significantly contributed to the applicant suffering from psychological harm, in the form of severe depression and anxiety, which, in turn, had caused recurrent [symptoms].  

4. In assessing the gravity of the harm the applicant was subjected to, the Tribunal has also had regard to her intellectual and physical disability. The Tribunal is of the view that the applicant’s disability had rendered her highly vulnerable and defenceless against the discrimination she was subjected to.[9] The evidence given on her behalf suggests that, regardless of her developmental delays, she is emotionally fragile and had shown a high level of sensitivity to the discrimination directed at her, particularly as she had grown older.  The Tribunal finds that, in the circumstances of this case, the discrimination the applicant was subjected to in Lebanon was so substantial as to amount to persecution.

   [9] See, for example, SZBQJ v MIMIA [2005] FCA 143 (Tamberlin J, 28 February 2005); SZBBP v MIMIA [2005] FMCA 5 (Driver FM, 18 January 2005); and VBAO v MIMIA (2006) 233 CLR 1.

5. In December 2015, DFAT provided the following information in relation to people with disabilities in Lebanon:

   People with Disabilities

   3.74 Lebanon has signed the Convention on the Rights of Persons with Disabilities and has also passed a law concerning the rights of people with a disability. However, DFAT contacts note that Lebanese authorities are far from successfully implementing their obligations under these commitments.

   3.75 DFAT understands that people with a disability are particularly vulnerable. For example, the majority of children with special needs are denied access to private education and there are limited public educational facilities that provide targeted support for children with special needs. In addition, commitments by Lebanese authorities to ensure organisations offer employment opportunities to people with a disability are not enforced and public and private infrastructure does not take into account the accessibility needs of people with a disability.

   3.76 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.[10] (emphasis added)

   [10] DFAT, Country Information Report – Lebanon, 18 December 2015.

6. The Tribunal finds that people with disabilities in Lebanon constitute a particular social group within the meaning of the Convention. The Tribunal accepts, therefore, that people with disabilities form a particular social group in Lebanon for the purposes of the Convention. The Tribunal is satisfied that the persecution directed at the applicant was essentially and significantly for the reason of her membership of the particular social group of people with disabilities in Lebanon.

7. The Tribunal is satisfied that, if the applicant were to return to Lebanon, there is a real chance that she would be subjected to the intensive, repetitive and prolonged discrimination she has been subjected to in the past. The Tribunal is satisfied that this discrimination would be at the same oppressive level and that the applicant cannot be expected to tolerate it. The Tribunal is satisfied that such treatment would amount to persecution within s.91R(1)(b) of the Act. The Tribunal is satisfied that the essential and significant reason for the persecution feared is the applicant’s membership of a particular social group, namely people with disabilities in Lebanon. On the basis of the evidence before it, the Tribunal is not satisfied that State protection is available to the applicant in Lebanon. There is no evidence before the Tribunal to suggest that there is an area in Lebanon where the applicant can avoid the type of societal discrimination she is fearful of. The Tribunal is not satisfied that the applicant would be able avoid the harm she fears by internally relocating within Lebanon. The Tribunal, therefore, is satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   The Applicant Mother

9. In her application for a protection visa, the applicant mother claimed ‘my harm comes from the harm that my daughter had experienced from community we live in’. At the hearing, she stated that she was not subjected to harm in Lebanon, but she reiterated that she suffered because of her daughter’s suffering. She became upset by the treatment her daughter was subjected to.

10. In a letter, dated [October] 2016, [the GP] stated that when the applicant mother first presented to him, she was suffering from anxiety and depression ‘related to difficult social circumstances surrounding [the applicant]’. The letter did not provide any further details. The Tribunal appreciates that witnessing the repetitive and prolonged discrimination against her daughter must have been very upsetting and distressful for the applicant mother. The Tribunal also appreciates that raising a disabled child and being her primary carer in Lebanon must have been a very challenging task, that the Tribunal has no doubt the applicant mother had tirelessly undertaken with selflessness and dedication. However, it is not clear from [the GP]’s letter whether the ‘social circumstances’ mentioned by him refer to the societal discrimination directed at the applicant, lack of access to services or, more generally, the difficulties faced by the applicant mother in raising a disabled child in Lebanon. There was no other information before the Tribunal to satisfactorily explain the link between the applicant mother’s psychological state and the discrimination directed towards the applicant. The applicant mother’s own evidence at the Departmental interview and the Tribunal hearing did not suggest, and the Tribunal is not satisfied, that the pressure brought to bear upon the applicant mother through the harassment suffered by the applicant was the reason behind her psychological condition. The Tribunal, therefore, is not satisfied that the applicant mother’s experiences can be characterised as serious harm amounting to persecution for a Convention reason in Lebanon. The Tribunal is not satisfied that, if the applicant mother were to return to Lebanon, there is a real chance that she will be subjected to serious harm within the meaning of the Convention.

11. The evidence before the Tribunal points to fears and concerns by the applicant mother in relation to general violence and tension in Lebanon. The Tribunal appreciates that she is apprehensive and concerned, particularly because of her advanced age. However, there is no evidence before the Tribunal to suggest that the tensions or lack of general security she is concerned about is faced by her personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose her to a real chance of persecution for a Convention reason.

12. The Tribunal, therefore, is not satisfied that the applicant mother has a well-founded fear of persecution for a Convention reason.

13. The Tribunal has considered whether the applicant mother meets the complementary protection criterion in s.36(2)(aa).

14. Having considered the applicant mother’s claims and circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant mother being removed from Australia to Lebanon, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that she will suffer harm from the authorities that would involve the infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that she will suffer arbitrary deprivation of her life or the death penalty. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant mother being removed from Australia to Lebanon, there is a real risk that she will be subjected to significant harm.

15. With regard to the applicant mother’s general concerns in relation to tension, instability and war in Lebanon, under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, lack of general security and the instability the applicant mother fears are faced by the population generally and not by her personally. The Tribunal finds that there is taken not to be a real risk that the applicant mother will suffer significant harm in Lebanon as a result of general lack of security and instability.

16. The applicant father applied for a protection visa by relying on his membership of the applicant’s family unit. He has not made his own specific claims for protection. However, it is arguable that the claims in relation to tension, instability and general violence in Lebanon also apply to him. For the reasons already provided in relation to the applicant mother’s claims in this regard, the Tribunal is not satisfied that the general security situation in Lebanon would expose him to a real chance of persecution for a Convention reason. The Tribunal, therefore, is not satisfied that the applicant father has a well-founded fear of persecution for a Convention reason. The Tribunal finds that there is taken not to be a real risk that the applicant father will suffer significant harm in Lebanon as a result of general lack of security and instability. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant father being removed from Australia to Lebanon, there is a real risk that he will be subjected to significant harm.

17. The Tribunal is not satisfied that the applicant mother and the applicant father are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa).

18. However, the Tribunal is satisfied that the applicant is a dependent child of the applicant father and the applicant mother. The Tribunal is satisfied that the applicant father and the applicant mother are members of the same family unit as the applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

19. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Shahyar Roushan
    Senior Member