1614946 (Refugee) - [2020] AATA 660

1614946 (Refugee) [2020] AATA 660 (4 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1614946
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Denis Dragovic
DATE:4 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 04 February 2020 at 11:22am

CATCHWORDS
REFUGEE – protection visa – Lebanon – refugee application refused – legislative amendments to Migration Act – complementary protection – real risk of serious harm in receiving country – fight at wedding and attack at festival – further threats by men involved – fear of those men and police – men’s political connections – inconsistent evidence – religion – Sunni Muslim – fear of Shia-based Hezbollah and pro-Syrian forces – general economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(aa), (2A), 48A, 65
Migration Regulations 1994 (Cth), Schedule 2
Migration Amendment (Complementary Protection) Act 2011
CASE
AMA15 v MIBP [2015] FCA 1424
SZGIZ v MIAC (2013) 212 FCR 235
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 and Border Protection 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 on 21 November 2013 and the delegate refused to grant the visa on 8 September 2016.
The applicant was invited to appear before the Tribunal to give evidence and present arguments. The applicant’s representative submitted a signed notice dated 16 October 2019 (Tribunal f.37) from the applicant requesting that the decision be made on the papers. Subsequently, following a request by the Tribunal for the applicant to respond to a written question, the applicant through his representative requested a hearing. A hearing was held on 29 January 2020.
It is not in dispute that the applicant was born on [date] and is from [Village], Akkar, Northern Lebanon district. I viewed a copy of the applicant’s passport and as such I accept that the applicant is a citizen of Lebanon.
RELEVANT LAW
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.
For…

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.

Continue reading 1614946 (Refugee)

Details

AGLC: 1614946 (Refugee) [2020] AATA 660
Case: [2020] AATA 660
Decision Date: 4 February 2020

CaseChat Overview and Summary

The applicant sought a protection visa, claiming fear of harm upon return to Lebanon. The dispute concerned whether the applicant met the criteria for complementary protection under the *Migration Act 1958* (Cth). The decision was made by Senior Member Denis Dragovic of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant faced a real risk of significant harm in Lebanon due to fear of Hezbollah and pro-Syrian forces, or due to the general economic conditions. The Tribunal was required to consider the definition of "significant harm" as set out in section 36(2A) of the Act, which is an exhaustive list. The Tribunal also had to determine if any risk faced by the applicant was general to the population and not faced by him personally, or if relocation within Lebanon would mitigate any such risk.

The Tribunal reasoned that the applicant had not demonstrated a fear of Hezbollah targeting him personally, noting that Hezbollah controls specific areas of Lebanon and allows non-Shi'a to worship freely. Country information indicated that Hezbollah engages in political partnerships with non-Shi'a communities, including Sunnis, and that the conflict in Syria, a stated reason for potential recruitment, was nearing an end. Regarding pro-Syrian forces, the Tribunal found that while indiscriminate violence occurred in Lebanon, the applicant had not shown a real risk of intentional harm as defined by the Act. Concerning economic conditions, the Tribunal acknowledged the difficulties in Lebanon but found that the applicant had family support and could find work, even if at a lower rate than desired, and therefore did not face a real risk of arbitrary deprivation of life due to an inability to subsist. The Tribunal also considered the applicant's separation from his Australian family, concluding it did not constitute significant harm under the Act.

The Tribunal concluded that the applicant did not face a real risk of significant harm in Lebanon, either individually or cumulatively, and therefore did not satisfy the criteria for complementary protection. Accordingly, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Prior to the hearing and at a stage when the applicant had consented to a decision being made on the papers, I undertook the counter-intuitive approach of providing by correspondence the s.438 certificate despite it covering documents not relevant to the review and despite the applicant not having sought documents relevant to the review through the Freedom of Information process. This was undertaken out of an abundance of caution to provide procedural fairness. The representative responded that the applicant would not be providing further submissions. Evidence and findings of factPrevious applications and decisions In the original protection visa application received 15 August 2011 the applicant claimed to fear harm because he was involved in a fight during a wedding. He claimed in his protection visa application form that some men approached his girlfriend and ‘tried to act smart with her’ and comment on her. He states that he couldn’t hold back so he hit them. He claimed that they retaliated and one had a gun. It is not clear from his written claim whether the applicant was claiming that the man with the gun subsequently shouted or shot. He then claimed that there was confusion before the police came. He claimed that he was blamed. He claimed that as he didn’t want to go to jail he applied for a visitor visa and came to Australia. The applicant claimed that he feared for his life because he was afraid of the police. He also claimed to fear the men he engaged in a fight as he claimed that they were the sons of politicians. He claimed that they are after him and want to have him beaten up and jailed. He claims that as politicians have a lot of power no one will investigate or arrest the others involved. He claims that they are also partly responsible for the melee. As the applicant’s first application was deemed invalid a second application was lodged and received 13 October 2011. In this application the applicant claims that following the fight at the wedding party he went to a traditional festival and saw the same men. They attacked him according to the applicant. He claims that he received considerable bruising from the encounter. The applicant again repeated his fears of the police and the men as they are sons of politicians. The applicant then made a second protection visa application which was received on 21 November 2013. It was accepted for the reasons explained in [6]–[11]. The following are the responses to the relevant evidentiary questions:Q43: Why did you leave that country? ‘I fear returning to Lebanon on the basis of the ongoing political, social and economic threats to my personal safety and capacity to subsist. I solely rely on complementary protection for assessment of my claims. I will be submitting a detailed statement in due course.’ Q44: Have you experienced harm in that country? (The ‘No’ box was ticked.)Q45: What do you fear may happen to you if you go back to that country? ‘I will suffer significant harm arising from the current economic and political situation in my country. I will be submitting a detailed statement in due course.’Q.46: Who do you think may harm/mistreat you if you go back? ‘Hizballah and pro-Syrian forces in Lebanon. General economic situation.’Q47: Why do you think this will happen to you if you go back? ‘Because I am Sunni Moslem.’Q48: Do you think the authorities of that country can and will protect you if you go back? (The ‘No’ box was ticked). ‘I will be submitting a detailed statement in due course.’Q49: Do you have any documentary evidence to support your claim for protection (including but not limited to membership cards, court documents, photographs, press articles)? (The ‘No’ box was ticked).

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Hezbollah and pro-Syrian forces The applicant has provided a general claim of fearing harm. He has not claimed to have been a critic of Hezbollah or politically active against pro-Syrian forces. He is claiming that as a Sunni he faces harm. I read to the applicant country information from DFAT and asked for his response:Hezbollah exercises effective control over sections of Lebanese territory, particularly in parts of South Lebanon, southern Beirut, and parts of the Beka’a Valley.[1]I explained that he lives in northern Lebanon while according to the country information Hezbollah controls southern Lebanon. The applicant said that he fears agents of Hezbollah. He said that there is an area next to his where there are Shia. I put to him that his governorate is predominantly Sunni and Christian with a minority of Shia. He clarified that he fears the Shia because they have spies among the Sunnis and Christians. Hezbollah does allow adherents of non-Shi’a religions to worship freely in the areas under its control.[2]The applicant said that it is right but they will recruit people. I clarified and asked whether he has a fear of Hezbollah targeting him. He said that they harm people by taking them to fight in Syria where they get killed. I put to him that the fighting in Syria is coming to an end[3] to which he said that he doesn’t watch the news and doesn’t believe it. [1] Department of Foreign Affairs and Trade, ‘Country Information Report: Lebanon’, 19 March 2019 at [3.32][2] ibid[3] ‘The Syrian Civil War Might Be Ending, but the Crisis Will Live On’, 23 December 2019 and ‘The Syrian War is Coming to an End’, 8 April 2019 I summarised an article about Hezbollah from Foreign Policy magazine[4] in which the author explains how Hezbollah receives support from non-Shia communities. The article states: As Hezbollah has set its sights on cross-sectarian, national-level power as a political party as well as a militant group, support from non-Shiite communities has become an ever more important part of its calculus. It has been able to capitalize on feelings of popular discontent among all of Lebanon’s sects and today enjoys more influence among Christians, Sunnis, and Druze than ever before. Founded as a Shiite fundamentalist organization in the mid-1980s, Hezbollah released an amended manifesto in 2009 that de-emphasized its Islamist background and underscored its interest in Lebanon’s stability and the fight against Israel. By this time, the group had already been working to facilitate cooperation with other sects, signing a memorandum of understanding with the Free Patriotic Movement (FPM), a Christian-majority party, in 2006.But it wasn’t until the May 2018 parliamentary elections that Hezbollah was able to significantly increase its influence among non-Shiite sects in parliament. Not only did the elections that year see Hezbollah’s bloc gain seats, but the FPM, still its ally, became the most powerful Lebanese Christian party. In addition, a group of six pro-Hezbollah Sunni deputies were elected to parliament, and the traditionally dominant anti-Hezbollah Sunni party, the Future Movement led by Prime Minister Saad Hariri, lost a third of its seats.“We are very delighted with the victories our allies in the Sunni community have made,” a Hezbollah official told me in Beirut’s southern suburbs. “You don’t have the Future Movement being the only bloc for the Sunnis.” Hanin Ghaddar, a researcher at the Washington Institute for Near East Policy, concurred that deep disappointment with the Future Movement has left Sunnis with few political options.…Sheikh Maher Hammoud, the imam of the Quds Mosque in Sunni-majority Sidon and perhaps the most influential Sunni advocate for Hezbollah and its allies in the city today, puts the support of Sunni communities for Hezbollah at “at least a third.” According to a pair of surveys conducted by the Pew Research Center, favorable views of Hezbollah among Lebanese Sunnis rose from 6 percent in 2013 to 9 percent in 2014. Since then, data on the matter has been scant, but the election of Hezbollah-allied Sunnis to parliament in 2018, who replaced Future Movement deputies in three key seats, suggests that the numbers have likely grown. Ghaddar said that while by and large Sunnis still have mixed feelings about Hezbollah, the group’s outreach strategy in the community is working.[4] Kranz, M, ‘Hezbollah’s Rainbow Coalition’, Foreign Policy, 9 August, 2019 >The applicant had no comment. I asked the applicant why he thinks that Hezbollah would forcibly recruit a Sunni such as himself into a Shia army that is fighting in Syria against rebels who are mainly Sunni. The applicant said that the opposition in Syria included more than just Sunni forces. Based upon country information stating that Hezbollah controls southern areas and the applicant lives in the northern most district along with the willingness of Hezbollah to allow other sects to practise their faith and the political partnerships being created between Sunni groups including individual Sunnis aligning themselves with Hezbollah politically along with the ending of the conflict in Syria and the implausibility of Hezbollah forcibly recruiting Sunnis to fight in Syria, I find that the applicant does not face a real risk of significant harm from Hezbollah for reasons of being Sunni.Regarding pro-Syrian forces, country information notes that there have been violent incidents ‘related to the Syrian conflict…across Lebanon in recent years’.[5] The violence mentioned in the DFAT report is perpetrated through indiscriminate mechanisms such as detonation of bombs including suicide attacks. [5] Department of Foreign Affairs and Trade, ‘Country Information Report: Lebanon’, 19 March 2019 at [2.44]As the applicant’s claims were only being considered against complementary protection, I explained to the applicant the definition of significant harm from s.36(2A). I note that it is an exhaustive list. I explained in summary that of the five, four use the terms ‘will be carried out’ or ‘subjected to’, terminology which infers an intent by someone against the applicant, as is clarified in s.5(1) where the words, ‘intentionally inflicted’, ‘intended to cause’ or ‘the act or omission’ are used in reference to the definition of torture, cruel or inhuman treatment and punishment or degrading treatment or punishment. As such for the applicant’s claims to be founded there would need to be someone who is intentionally causing the applicant the type of harm described in s.5(1). The use of indiscriminate weaponry such as suicide bombs as referenced in the DFAT report I find does not meet this test. For this reason I find that the applicant does not face a real risk of the death penalty; torture; cruel or inhuman treatment or punishment; or degrading treatment or punishment.Section 36(2A) also lists arbitrary loss of life as significant harm for the purposes of s.36(2)(aa). The UK government website on travel advice to Lebanon[6] lists recent terrorist incidents:·3 June 2019, a suspected militant killed 2 Lebanese army soldiers and one Lebanese policeman in Tripoli. The militant himself died in the subsequent operation by the Lebanese security agencies.·14 January 2018, a small explosion occurred near Al-Bustan Street in Saida (Sidon). One person was injured.·28 and 29 June 2017, 4 attackers exploded suicide belts in a refugee settlement in Arsal. Follow-up security investigations are ongoing.·31 August 2016, an explosion at the Ksara roundabout near Zahle resulted in one death and 11 injuries.·27 June 2016, a series of suicide bomb attacks in Al Qaa resulted in 5 deaths and 21 reported wounded.·12 April 2016, a car exploded outside Ain El Hilweh Palestinian refugee camp in Saida (Sidon), causing at least one death.·12 November 2015, there were explosions in Burj-al-Barajneh, in the southern suburb area of Beirut, 43 people were killed and 239 injured.I put this list to the applicant and asked for his comment as it relates to the risk he faces. I explained that I thought that this constituted a limited number of attacks such that he wouldn’t face a real risk of harm. He said that there is no guarantee about life. [6] United Kingdom Foreign Travel Advice I find that the incidence of attacks listed above would remain on trend or reduce based upon the Syrian conflict nearing an end. Considering the relative infrequency of the attacks alongside the size of the country I find that the applicant does not face a real risk of arbitrary deprivation of life arising from pro-Syrian or other terrorist groups and their activities now or into the reasonably foreseeable future. Economic situationI summarised to the applicant the below country information from DFAT on the economic situation in Lebanon, which states the following:Lebanon has a free-market economy and a strong laissez-faire commercial tradition. While the government does not restrict foreign investment, the investment environment features excessive regulation, institutionalised corruption (see Corruption), arbitrary licensing decisions, complex customs procedures, high tariffs and fees, archaic legislation, and inadequate intellectual property rights protection. The economy is service-oriented: key sectors include banking, real estate, and tourism. Lebanon’s gross domestic product (GDP) was an estimated USD52.7 billion in 2017, with a real growth rate of 1.5 per cent.…Lebanon continues to face several long-term structural weaknesses that predate the Syrian crisis, including political dysfunction, weak infrastructure and poor service delivery. Chronic fiscal deficits have increased Lebanon’s debt to GDP ratio, which is the third highest in the world. These factors combined to slow economic growth to the one to two per cent range between 2011 and 2017, after four years of averaging 8 per cent growth.…GDP per capita was last recorded at USD7191 in 2017. Wealth and income are, however, not evenly distributed: Lebanon has some of the highest levels of wealth and income inequality in the world. The World Bank estimates that some 200,000 additional Lebanese have been pushed into poverty as a result of the Syrian crisis, adding to the previous one million poor (defined as living below USD3.84 per capita per day). Densely populated cities have limited housing stock, and the price of shelter and food has risen considerably. Social protection, government support, and access to employment is far more limited in mountainous rural areas than the coastal belt, and poverty is particularly acute in the north of the country and in the Beka’a Valley.Unemployment is a major problem in Lebanon, particularly for the young. The official unemployment rate is low: Trading Economics put it at 6.7 per cent at the end of 2017. This rate, however, measures only the number of people actively looking for a job as a percentage of the overall labour force, and considerably understates the true number of Lebanese who are either out of work or underemployed. In August 2017, the labour minister estimated that the overall unemployment rate was 25 per cent, with unemployment among those under 25 years of age at 37 per cent.[7][7] Department of Foreign Affairs and Trade, ‘Country Information Report: Lebanon’, 19 March 2019 at [2.8]–[2.11] The applicant responded that that is why the people are now on the streets and uprising. I acknowledged the economic situation in Lebanon was poor but I noted to the applicant that the country remains a middle income country as defined by the World Bank.[8] [8] Those with a GNI per capita between $3,956 and $12,235 (2018), The World Bank in Middle Income Countries, >I asked the applicant why he wouldn’t be able to find a job in Lebanon. He said that if he would find a job for $10 an hour a Syrian would take it for half that or less. I asked why he wouldn’t take it for the same rate as a Syrian. He said that it’s not enough. I put to him that it is enough for the Syrian. He said that they live in tents. I put to him that he has family in Lebanon. He responded that he has [a number of siblings] along with his parents. I asked why he wouldn’t be able to live with them to which he responded that they all live in one home in a house with two bedrooms. He again repeated that there are no jobs and that he can’t go back because he wouldn’t be able to find work. At the end of the hearing the applicant asked if he was to go back what would he do with his wife and two children. This information was not available at any earlier stage of his application process. I asked the applicant about his family. He said that he has two children aged [age] and [age] who are both Australian citizens and he is married to a [Nationality]-Australian. He said that she wouldn’t go to Lebanon as she is scared about the situation in Lebanon. I asked why as she wouldn’t hold the same fears as he would, namely being forcibly recruited by Hezbollah or claiming to have been involved in a feud with some men. He said that she is scared because of the general situation. I asked if there was a reason why his children couldn’t come and visit him. He responded that their mum would not come to Lebanon and as such the children could not come. I find the applicant’s separation from his family does not amount to significant harm within the context of s.36(2)(aa) and the exhaustive list of what defines significant harm as listed at [12]. I note that there is no claim of any intent by any party to prevent his family from seeing him and no evidence that suggests that there would be any impediment for them seeing him.[9] I have also considered the risk of arbitrary loss of life of his children and his wife and find that they face the same level as he faces and as such any psychological harm that he faces from any harm they would endure would be at a level of risk that does not reach a real risk. [9] I reviewed sources including Refworld, CISNET and Google. The definition of significant harm is found in s.36(2A). It is an exhaustive list. Of the five sub-points three may relate to a situation which may arise from economic circumstances: (a) the non-citizen will be arbitrarily deprived of his or her life; 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.Acknowledging the various different employment figures I note that the applicant has family support and he has confirmed that he can find work, albeit work that doesn’t pay as much as he hopes. For these reasons I find that the applicant does not face a real risk of arbitrary deprivation of life due to an inability to subsist.Regarding whether he faces cruel or inhuman treatment or punishment or degrading treatment or punishment, as noted earlier there needs to be someone who is intentionally causing the applicant such harm via economic levers. Country information on the economy listed above does not indicate that there is individual discriminatory treatment in employment that would target someone of the applicant’s profile.[10] The applicant has not claimed or provided any information to suggest that there is. [10] ibidAs such I find that the applicant does not face a real risk of significant harm arising from the economic circumstances prevailing in Lebanon into the reasonably foreseeable future. CumulativelyI have also considered the applicant’s circumstances as a Sunni who fears Hezbollah and other pro-Syrian forces living in an economically depressed country apart from his family. Considered cumulatively I find that the applicant does not face a real risk of significant harm into the reasonably foreseeable future. ConclusionFor the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under Complementary Protection. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Denis DragovicSenior Member

Ratio Decidendi

Legal Principle Established

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.Mandatory considerations In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 Attached to the Departmental file [number] was a s.438 certificate regarding the disclosure of certain information. The folios covered by the certificate are correctly described as containing third-party information and the reason given for not releasing those documents is the privacy of third parties. I find that the certificate is valid. At the hearing I explained to the applicant that a certificate was on the file but nevertheless summarised the content of the material behind the certificate. I explained that it was the internal working documents upon which the Minister had chosen not to intervene in response to the applicant’s request for Ministerial Intervention. I explained to the applicant that if there was adverse information contained within the document I would be obliged to provide it to him. I explained that there was no adverse information. The document prepared by the Department for the Minister’s analysis included the then representative’s submission that the applicant’s grandmother requires care and as such the applicant’s departure from Australia would create hardship for an Australian citizen. These claims and related information are not relevant to the review and as such I have given them no weight. Within the document there is a reference to the then delegate’s decision, a summary of which appears in the current application’s delegate decision record which was provided by the applicant to the Tribunal and as such is exempt from s.424A/AA requirements (see s.424A(3)(b)). Prior to the hearing and at a stage when the applicant had consented to a decision being made on the papers, I undertook the counter-intuitive approach of providing by correspondence the s.438 certificate despite it covering documents not relevant to the review and despite the applicant not having sought documents relevant to the review through the Freedom of Information process. This was undertaken out of an abundance of caution to provide procedural fairness. The representative responded that the applicant would not be providing further submissions. Evidence and findings of factPrevious applications and decisions