1617142 (Refugee)

[2017] AATA 990

1617142 (Refugee) [2017] AATA 990 (7 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1617142

COUNTRY OF REFERENCE:                  Stateless / Lebanon

MEMBER:Melissa McAdam

DATE:7 June 2017

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 second named applicant satisfies 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 07 June 2017 at 11:32am

CATCHWORDS

Refugee – Protection visa – Stateless/Lebanon – Particular social group – Child of foreign father – Illegitimate children – Discriminatory laws

LEGISLATION

Migration Act 1958, ss 5(1), 36, 48A, 65, 91R, 91S, 499

Migration Regulations 1994, r 1.12, Schedule 2

CASES

Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
Koe v MIEA (1997) 78 FCR 289
SZGIZ v MIAC [2013] 212 FCR 315

SZEOH v MIMIA FMCA 1178

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).

   RELEVANT LAW

2. 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.

   Refugee criterion

3. 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).

4. 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.

5. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

6. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

7. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

8. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

9. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

10. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

11. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

12. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

13. 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’).

14. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

15. 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.

    Section 499 Ministerial Direction

16. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Member of the same family unit

17. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include dependent children.

18. The first named applicant is the [infant] son of the second named applicant.

    2012 Protection visa application

19. [In] February 2012 the applicants lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). 

20. The second named applicant claimed in this Protection visa application to fear family violence in Lebanon.

21. The first named applicant did not raise any protection claims in the Protection visa application to the Department.

22. [In] July 2012 the Delegate refused the application on the basis that the second named applicant was not a person in respect of whom Australia owed protection obligations under the refugee criterion and the complementary protection criterion. The Delegate refused the first named applicant as a member of the second named applicant’s family unit.

23. On 18 July 2012 the applicants applied for review of that decision to the Refugee Review Tribunal.  On 27 February 2013 the Refugee Review Tribunal affirmed the decision not to grant the applicants a protection visa.[1]

    [1] RRT Case Number 1210502.

    Current Protection visa application

24. Following the Full Federal Court judgment in SZGIZ v MIAC[2] the applicants were considered not prevented by s.48A of the Act from lodging another Protection visa application.

    [2] [2013] 212 FCR 315.

25. The first named applicant was therefore able to apply for a Protection visa again on the basis of both the refugee and complementary protection criteria.  The second named applicant was able to apply for a Protection visa again on the basis of her membership of the first named applicant’s family unit.

26. The applicants subsequently applied again to the Department for a Protection visa [in] April 2014 and the delegate refused to grant the visas [in] December 2014.  

27. The applicants applied for review of that decision to the Tribunal on 2 January 2015. [In] July 2016 the Tribunal (differently constituted) affirmed the Department’s decision.[3] 

    [3] AAT Case Number [information deleted].

28. [In] October 2016 the Federal Circuit Court[4] made an order quashing the Tribunal’s decision. The Court directed the Tribunal to reconsider and re-determine the application for review according to law.  The Court noted that the Minister, as First Respondent,:

    … concedes that the decision of the [Tribunal] dated [July] 2016 is affected by jurisdictional error. The first respondent concedes that the [Tribunal] failed to consider the second named applicant’s claim to fear harm as a result of his inability to reside in Lebanon on a permanent basis: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389.

    SUMMARY OF CLAIMS AND EVIDENCE

    [4] [Information deleted].

    Current Protection visa application

29. The second-named applicant presented the claims for protection on behalf of her son, the first named applicant. The following is a summary of the claims and information provided by her in their current Protection visa application:

    a.The first named applicant was born on [date] in [Australia].  His father is unknown. He has lived in Australia since birth. He is stateless.  His mother is not able to confer Lebanese citizenship on him under Lebanese law.  It amounts to severe discrimination against women.

    b.He will therefore not be able to remain on a permanent basis in Lebanon. As a non-citizen he will be deprived of basic human rights including the right to live with his mother, deprivation of family, and deprivation of adequate health care and education. The Lebanese state will deprive the first named applicant of a standard of living adequate for his physical, mental, spiritual, moral and social development.

    c.The second named applicant was born [in] Lebanon on [date]. She is a Lebanese citizen. She lived in Lebanon up until 2008. She has a [sibling] in Australia. Her parents [and other siblings] are living in Lebanon. She has another [sibling] in [another country].

    d.The applicants submitted the following documents:

    i.Copy of the first named applicant’s [Australian] Birth Certificate naming the second named applicant as his mother. The details of his father are left blank.

    ii.Copy of the bio-data page of the second named applicant’s Lebanese passport issued [in] 2007.

    iii.A letter from the Consul General of Lebanon in [City 1], dated [May] 2013, stating that the Consul General cannot issue a passport or travel document to [the first named applicant], who is born in [City 1], for the following reasons:

    ·The father is not mentioned on the Australian Birth Certificate.

    ·The father does not have Lebanese nationality.

    Departmental Interview

30. The following is a summary of the claims and information provided by the second named applicant who presented the applicants’ claims in the Departmental Interview:

    a.The second named applicant does not know the name of the father of the first named applicant. She had a relationship with someone else while married. Three months after the relationship she found out she is pregnant. She does not know if the father is her ex-husband or her lover.  She doesn’t believe it is her ex-husband.

    b.She was unsure if the relationship with the other man would last long. They went out together only twice while she was living in [City 2]. She is no longer in contact with him.  She does not know his full name. She does not know his nationality or where he came from.  He spoke English. She is not sure if he spoke Arabic. She called him [name] or something. She does not know if he is an Australian citizen or permanent resident. She was depressed at the time. It affected her memory.  

    c.She went to the Lebanese Consulate to try to register her son. She asked for a passport for her son. Her son is not recognised by Lebanese authorities

    d.Her family has a very strict mentality.  What she has done is against Shariah law.  Her father might kill her and kill her boy.  She will be subject to harm, killing, from her father and uncles. Her parents know she has a son, but they don’t want to know anything about her. They know how he was conceived.

    e.She is from the Sunni Muslim sect. Her family is from [Town 1]. She has some uncles who live in Beirut.

    f.She has nowhere to go and no income in Lebanon. She will not be able to feed her son. People live on the street in Lebanon. She did not work in Lebanon. She has not worked in Australia.

    g.The Delegate put to the second named applicant that honour killings are rare in Lebanon. The second named applicant responded that it does happen but they don’t show it on the media. There are no laws to protect her in Lebanon.

    Delegate’s Decision

31. The Delegate accepted that the first named applicant is stateless. The Delegate did not accept that the second named applicant’s family in Lebanon may kill the first named applicant.

32. The Delegate was not satisfied that the first named applicant’s fears of harm were for reason of a Convention ground.

33. The Delegate referred to reports that non-citizen children of a Lebanese parent are unable to access free public education or hospitals in Lebanon, and face difficulties accessing affordable education and health care. The Delegate was not satisfied these restrictions amounted to significant harm.

    Information to the Tribunal

34. The applicants appeared before the Tribunal on 7 April 2017 to give evidence and present arguments. The second named applicant presented the applicants’ information. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information provided by the second named applicant at the hearing:

    a.The second named applicant was born [in] southern Lebanon but she grew up in [Town 1].  She went to school and then to university.  She studied [a course] but did not complete her degree. She lived with her parents who supported her.

    b.Her parents[and siblings] are living in Lebanon. Her parents are divorced. Her mother[and siblings] live together in [Town 1]. Her father is living with his relatives in southern Lebanon. She is not sure where as she is not in contact with him.

    c.She is in contact with her mother. Her mother loves her. She does not have much contact with her brother because he is not happy with her and does not like what happened.

    d.In Australia she is being supported by [an organisation] who help her with rent and food.

    e.She does not know the full name or any details about the man she had a relationship with.

    f.She does not know where her ex-husband is.  His family are from Tripoli.  She has met them, but she has not had any contact with them for six years.  She is not divorced from her husband yet as it costs money to obtain the divorce and she cannot afford it.

    g.Everyone knows she married her husband. If she returns to Lebanon the neighbours and community will ask where her husband is and where is her son’s father. They will be suspicious and want to know what is going on. They will call her bad words and insult her son.

    h.Her ex-husband knows she had a relationship with another man and that she now has a son. He does not consider himself the father. She does not know if her ex-husband has told his family in Lebanon. Her mother knows as she told her mother because she was worried her ex-husband would tell her mother first. Her mother is very upset with her.

    i.She cannot live with her mother in Lebanon.  Her mother loves her but she would be scared the applicants will bring trouble to her household. There is a danger from her father’s side.  He will learn she is there and get to her to hurt her. Her mother will not let the applicants stay at her house. Her mother in Lebanon considers [the first named applicant] a beautiful boy but he also represents something shameful to them.

    j.Because what she did is considered shameful her father and his relatives will want to hurt her. Her father has hit her and her siblings in the past. When she was a teenager and out late with friends he would yell at her and hit her with his belt.

    k.Her mother owns her home. Her [sibling] has started working so helps support the family.

    l.Her family are Sunni Muslims. Her village is a Sunni Muslim village. There are a mix of religious behaviours in her village. Some women cover their hair in public and some don’t. She doesn’t but her [sisters] do.  The applicant is a Sunni Muslim but she does not practice her religion. She respects all religions but is not interested in practising religion. She doesn’t pray or fast or celebrate Eids. It is okay in Lebanon to stop practicing as a Muslim.  But what she has done, having a relationship and a child with another man, is not okay.  It is considered haram.

    m.She will not be able to find employment in Lebanon. There are many refugees in Lebanon so it is difficult to find work.  Women like her who have no support are often exploited.  If she tries to get a job it is likely she will be put to work doing something shameful.  She read an article that so many women in Lebanon resort to prostitution because they are hungry.  She also will not be able to enrol her son at school so she will have to stay home to look after him and be unable to work.

    n.In Lebanon you need support and people at your back to be able to get employment and other opportunities, or you need to pay bribes.  She has no one who will support her there. None of her family or relatives will help her because they don’t want anything to do with her.

    o.She has relatives in Australia but they do not have anything to do with her. She is not sure why. It is either because of what she did, having an extra-marital relationship, or it is because they think she will ask them for money.

    p.Her son, [the first named applicant], cannot get a Lebanese passport or travel document so he is not able to travel to Lebanon. She went to the Lebanese Embassy in Australia to try to get documents for him but they would not give him anything.

    q.She will not be able to enrol [the first named applicant] in school in Lebanon because he has no papers. All children need documents to be registered at schools. He has a Birth Certificate but this will not be sufficient. When she showed this to the Lebanese Consulate the Lebanese officials told her it did not make [the first named applicant] eligible for any documentation from them. They told her the Lebanese government has no responsibility for [the first named applicant] and they have no obligations to him.

    r.[The first named applicant] is a generally healthy child. However he has a serious [problem]. [Details deleted]. She has been told that his development is delayed but that he should continue to improve. [The first named applicant] has also been diagnosed with [another condition]. [Details deleted].

    Country information

1. Article 1 of Decree No.15 on Lebanese Nationality, dated 19 January 1925 (amended in 1960), allows Lebanese fathers to confer their nationality on their children, but does not provide the same right to women.  A provision exists in Article 2 of the Decree to allow the children of Lebanese mothers to acquire Lebanese nationality if they were born out of wedlock.  Article 2 states:

   The illegitimate child whose nationality has not been established during his minority shall have the Lebanese nationality if one of his parents in respect of whom affiliation is first established and if the proof of affiliation regarding both the father and the mother results from a single contract or judgment, the child shall acquire the nationality of the father should the latter be Lebanese.

2. Reports indicate that the provision in Article 2 may not apply to children born outside of Lebanon. An undated report by Child’s Rights Monitor lists the circumstances that entitle a child to Lebanese citizenship, one of which is when ‘[a] child is born out of wedlock on Lebanese territory’.[5]  The list does not include recognition for illegitimate children born outside Lebanon.

   [5] ‘Report: Convention on the Rights of the Child’, Child Rights Monitor, n.d., Sec. IV(B).

3. A child who is entitled to Lebanese nationality can obtain citizenship by having his/her birth registered.[6] For overseas children registration can occur at a Lebanese Consulate. The website of the Lebanese consulate in [City 2] states that children born in Australia to a Lebanese mother and foreign father cannot be registered at the Consulate.[7]

   [6] ‘Birth Registration Procedures in Lebanon’, Frontiers Ruwad Association, 2014, p.56; ‘Statelessness in Lebanon: Submission in view of Lebanon’s second periodic review by the Human Rights Council’, Frontiers‑Ruwad Association, March 2015, pp.5-6

   [7] [Information deleted].

4. For illegitimate children born in Lebanon, if one parent (mother or father) is a Lebanese national and that parent registers their birth, then they can obtain Lebanese nationality.[8] Births occurring in Lebanon must ordinarily be registered within 30 days. Birth registrations occurring between 30 days and one year after the birth are subject to a fine and any registrations after one year ‘may only happen through a recourse to the courts by filing a voluntary birth registration lawsuit’.[9]

   [8] ‘Birth Registration Procedures in Lebanon’, Frontiers Ruwad Association, 2014, p.56; ‘Why Non-Marital Children in the MENA Region Face a Risk of Statelessness’, Fisher, B, Harvard Human Rights Journal, January 2015, p.3.

   [9] ‘Birth Registration Procedures in Lebanon’, Frontiers Ruwad Association, 2014, p.10, 58-59.

5. Reports indicate that children of Lebanese mothers who have a foreign spouse may obtain a courtesy residence permit, allowing them to work and reside in Lebanon for up to three years at a time.  Advice from the Department of Foreign Affairs and Trade (DFAT) in January 2017 states that a courtesy residence permit may be obtained for ‘children and foreign husbands of Lebanese women’.  The permit is allowed under Decree No. 4186 (May 2010) and ‘permits the individual to enter and reside in Lebanon’. DFAT states that decisions on courtesy residence applications were made on a case‑by‑case basis, although the applicant being a minor would be taken into consideration.[10]

   [10] ‘Lebanon - Country Information Request - CI161205171414041 - Obtaining residence permits’, Department of Foreign Affairs and Trade, 20 February 2017.

6. The UN Committee on the Elimination of Racial Discrimination (CERD) referred to the courtesy residence permit in a 2015 report on Lebanon. CERD stated that the permit is valid for three years and is renewable. The permit is available for ‘children of a Lebanese woman by a foreign husband, regardless of whether they are adults or minors, and of whether they are employed’.[11]  Al Jazeera reported that ‘the process of obtaining these is cumbersome and subject to the whim of whichever bureaucrat is in charge of your folder’.[12]

   [11] ‘Combined eighteenth to twenty-second periodic reports of States parties due in 2006: Lebanon’, UN Committee on the Elimination of Racial Discrimination, 5 August 2015, p.22.

   [12] ‘Lebanon’s sexist citizenship law hurts mothers and babies’, Saidi, M, Al Jazeera America, 10 May 2015.

7. DFAT’s most recent Country Information Report, published in December 2015, states:

   Lebanon has acceded to the Convention on the Elimination of All Forms of Discrimination Against Women, with a reservation on women’s choice of family name. Despite this, women in Lebanon continue to suffer significant societal and official discrimination and violence and DFAT contacts suggest that women face one of the highest risks of discrimination and violence of all groups in Lebanon.

   Laws relating to nationality and citizenship discriminate against women. Lebanese women are unable to confer nationality on either their (non-Lebanese) spouses or children, which can prevent their spouses and children from accessing education, healthcare and residency. …

   …  Although DFAT is unaware of any formal statistics on women’s economic empowerment within Lebanon, anecdotal evidence from DFAT contacts suggests that women’s ability to find employment is less than that of men.

   Although no official prevalence studies exist, DFAT understands that violence against women is widespread in Lebanon. In April 2014, the Law on the Protection of Women and Family Members from Domestic Violence was passed. Critics have argued that the new legislation defines domestic violence too narrowly and does not specifically criminalise marital rape; has inadequate provisions for the issuance of restraining orders; and preferences the religiously-administered personal status and family laws which often discriminate against women. DFAT has been told that cases of violence against women are sometimes treated as social rather than criminal matters and that charges of rape have been dropped if a victim agrees to marry the perpetrator. …

   … Overall, DFAT assesses that women in Lebanon face a high risk of societal and official discrimination and violence. In practice, DFAT understands that the risk to women is most acute in relation to violence.  …

   … 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….

   … Corporal punishment is not prohibited in the home, schools or alternative care settings. Save the Children reports that corporal punishment exists in all social groups and is a widespread method of discipline, particularly in educating and bringing up children.

   … Lebanese citizens and residents require a Lebanese passport or national identity card, individual civil status record certificate or residency card in order to enter Lebanon. A passport or Lebanese identity card, as well as a valid visa, are required to exit Lebanon.

   … Lebanese authorities do not allow the registration of births outside of wedlock, or if a marriage was not executed with relevant authorities following a religious marriage or marriage conducted overseas. However, DFAT understands that an individual can approach the Lebanese courts to seek registration of a birth outside of wedlock.

8. The US Bureau of International Labor Affairs Report, ‘2015 Findings on the Worst Forms of Child Labor – Lebanon’,[13] states:

   Children in Lebanon are engaged in the worst forms of child labor, including in the  production of tobacco and commercial sexual exploitation…. Child labor has increased and its conditions have worsened since the influx of Syrian refugees into Lebanon.  …

   Some Lebanese and Syrian children are subjected to forced begging and commercial sexual exploitation, sometimes as a result of human trafficking from Syria or internally within Lebanon. …. Children working on the streets are sometimes forced into commercial sexual exploitation and illicit work by criminal gangs or acquaintances. A 2011 study found that boys working on the street are at high risk of sexual exploitation by peers and by men.  …

   The UN reported that children were recruited into armed groups, by al-Nusra Front and Hezbollah, and sent to Syria. …

   The law guarantees free compulsory education for children, but only for Lebanese citizens. Therefore, non-citizen children, including stateless and refugee children, have limited access to education.

   [13] >

   The Issam Fares Institute for Public Policy and International Affairs, Research, Advocacy & Public Policy-Making Working Paper Series #8, May 2012, ‘Women’s Citizenship Rights in Lebanon’, states:

   [The] Decree No. 4186 on courtesy residence dated May 31, 2010 helped partially resolve [the] problem by giving foreign husbands and children of Lebanese women, a courtesy residence. It granted them a three-year residence permits, provided they have been previously living in Lebanon for a year….

   Moreover, new labor regulations No.122/1 issued on 23 September 2011 introduced amendments to the labor law aiming at eliminating various forms of discrimination against the foreign spouses of Lebanese women and their children. The regulations, now in force, grant work permits without the need of a sponsor to non-Lebanese spouses of Lebanese women, effectively making it easier for employers to hire non-nationals. Foreign husbands and their children can also renew their residence permits without having to pay fees, even if they hold no job. However, if the children born to Lebanese mothers and foreign fathers subsequently marry non-Lebanese citizens, they are not permitted to stay in the country even if it is the only country they have known.

   … Children born to Lebanese mothers and foreign fathers are considered as foreigners, they are subject to the fees applicable to foreigners and do not benefit from the preferential rates given to Lebanese students, whether at public schools or universities. They are also denied the right to participate in the political life of universities, having no right to vote and no right to register in a political party or to be a candidate. Furthermore, entry is often made difficult, Lebanese pupils having priority over others.

   As for private schools and universities, such possibilities remain a privilege to those who can afford it. Even though education fees in private establishments might not be of concern to wealthy families, the majority of Lebanese women with foreign spouses often struggle with settling the education fees of their children, thus contributing to the risk of illiteracy within poor families.

   B. Work and residence permits

   According to the definition of Article 1 of Law dated 07/10/1962 (pertaining to the entry of foreigners to the Lebanese territory, their residency and exit), “Any natural person who is not of Lebanese nationality is [...] a foreigner.” Therefore, in order to reside and work in Lebanon, foreign husbands and children of Lebanese women need to obtain residence and work permits, which initially had to be mandatorily renewed on a yearly basis and cost recurrent expenses that the families might not afford. This problem stems from the status of the spouse and the children as foreigners and the priority of Lebanese to hold most jobs, according to Lebanese Laws and regulations. …

   C. Healthcare

   Foreign husbands and children of Lebanese women are not eligible to benefit from public healthcare due to their status as foreigners. As for private healthcare fees, they are especially expensive in Lebanon, and are only affordable for a certain category of families. Therefore, foreign spouses of Lebanese women and their children are mostly unable to afford such costly fees. …

   …

   F. Social and psychological impacts

   Children born and raised in their mothers’ homeland with no legal rights for free education, healthcare or work eventually become excluded from society since the only country they know as home rejects them. The result can only be detrimental for them and for the society as a whole. They are doomed to be either illiterate, non-productive or forced to work in the black economy, which adversely affects, on a larger scale, the entire society they live in. …

9. The UN Economic and Social Council, ‘Country programme document – Lebanon’, 5 August 2016, states:

   Almost one and a half million disadvantaged children live in Lebanon and over 80 per cent of them reside in just 15 per cent of cadastres in the country. These children include 470,000 Lebanese and almost one million children from other nationalities…  Approximately 34 per cent are under 5 years of age, 52 per cent are 6 to 14 years of age, and 14 per cent are 15 to 18 years of age.

   … Children and adolescents with disabilities are at high risk of violence, discrimination and exclusion. Risks are exacerbated in emergency settings and when there are no targeted interventions in place. In Lebanon, a data gap on disability persists, limiting targeted interventions aimed at improving the situation for children and youth living with disabilities.

   … In terms of child protection, boys, girls and women in Lebanon continue to be significantly affected by exploitation, abuse, neglect and violence, including gender-based violence.

10. The Frontiers Ruwad Association research report, ‘Statelessness in Lebanon’, March 2015, states:

    Stateless persons in Lebanon are generally denied basic and fundamental human rights. The lack of legal protection framework for stateless persons puts them in an exceedingly disadvantageous situation and makes them subject to serious abuse and exploitation. In general, stateless persons in Lebanon belong to economically disadvantaged social classes and as such constitute an extremely vulnerable and marginalized population.

    Stateless persons cannot enjoy any civil and political rights; they have no access to social security or to the right to work in the formal sector.

11. An 11 September 2010 article from NOW News cites a senior social worker at women’s rights organisation KAFA reporting that Lebanese law does not allow a single woman to register her child as a Lebanese citizen. The child’s identity card would include ‘the label of lakit, the Lebanese word for bastard’.[14]

    [14] Luca, A 2010, ‘Lebanon’s abortion question’, NOW Media, 11 September <

12. There are reports that unwed mothers and their children face social prejudice and marginalisation in Lebanon.[15] Pre-marital sex is ‘frowned upon’ and ‘illegitimate children are often stigmatized’ according to a 9 September 2013 article from The Daily Star.  A 1 October 2013 article from The Daily Star reports that social pressures in Lebanon ‘often push unwed mothers into giving up a baby’.[16]

    [15] Stoughton, I 2013, ‘Closed adoption system helping traffickers’, The Daily Star, 9 September < Stoughton, I 2013, ‘Badael tackles problems surrounding adoption’, The Daily Star, 1 October; Luca, A 2010, ‘Lebanon’s abortion question’, NOW Media, 11 September <

    [16] Stoughton, I 2013, ‘Badael tackles problems surrounding adoption’, The Daily Star, 1 October

13. Another article in the Daily Star[17] states:

    … Without a nationality, [Issa] remains unable to own property, register his house or access basic health care. Issa even said that he had to use the identity card of another child to get his son medical treatment when he developed kidney problems as a baby. That’s because he had no identity papers except for an otherwise meaningless handwritten document from the mukhtar of Hebbarieh. “They stop my son at the checkpoint whenever he walks home from school,” said Mona Issa, mother of Hadi. “He has a document from the mukhtar but the police don’t acknowledge it.”

    “In this case, these parents have to go to court to try to prove with the documents they have that they are indeed Lebanese,” she told The Daily Star. “The process can take a very long time. But they must prove in some way that their father is Lebanese. They even need to have a DNA test.” Issa said that he has already pleaded his case to many political officials to no avail. Even if he was able to navigate the legal process, the fate of his family would still hinge on a single judge’s decision.[18]

    [17] Daily Star, "Stateless Lebanese face obstacles and few options", 1 May 2016

    [18] OF CLAIMS AND EVIDENCE

    Country of Reference – first named applicant

14. The evidence before the Tribunal is that the second named applicant is the mother of the first named applicant and his father is unknown.  There is also evidence that the second named applicant’s former husband is not the father of the first named applicant. In view of the uncertainty the Tribunal accepts that the first named applicant’s father’s has not been identified.

15. The first named applicant was born in Australia but is not entitled to Australian citizenship on this basis, under Australian law.

16. Given the first named applicant’s his father is not identified, and that the first named applicant cannot claim citizenship by place of birth, his mother is referential on the basis of  the jus sanguinis principle.

17. The first named applicant’s mother has Lebanese nationality and no other nationality. However, as set out above, under Lebanese law a Lebanese woman cannot pass on her Lebanese nationality to her child under most circumstances.  The laws have a narrow exception for a child born to a Lebanese woman and a foreign–national father out of wedlock, which allows for the mother to register the child as a Lebanese national within the first 30 days, or first year (on payment of a fine) of the child’s birth.  According to the available information it is uncertain whether this exception applies to children born outside of Lebanon and indications are it does not. The country information further states that it can be a long and uncertain process, requiring court action, to try to register a child as a Lebanese national after the age of one year.

18. The Tribunal notes that the Lebanese Consulate in Australia has refused to register the first named applicant and to recognise him as a Lebanese citizen. It has not provided any documents to him.

19. In view of the available information the Tribunal is not satisfied that the first named applicant can obtain Lebanese nationality now or in the reasonably foreseeable future.  As such he is stateless.

20. As a stateless applicant, the country of reference for the first named applicant is his country of former habitual residence. Technically, the first named applicant does not have a country of former habitual residence, as he was born in Australia and has remained in Australia since birth.

21. As Tamberlin J stated in Koe v MIEA, individuals should not be denied the protection of the Convention by an unnecessarily narrow reading of the definition of ‘refugee’.[19] That approach was endorsed in SZEOH v MIMIA, where Nicholls FM held that, where the applicant daughter was born in Australia and had no nationality or country of former habitual residence, it was appropriate, sensible, practical and fair for the Tribunal to consider her claims against a return to Singapore, that being her mother’s country of nationality and the country against which her claims of fear of harm were made.[20] 

    [19] (1997) 78 FCR 289 at 296.

    [20]        SZEOH v MIMIA [2005] FMCA 1178 (Nicholls FM, 26 August 2005) at [8]-[9].

22. In this matter the Tribunal considers it appropriate to assess the first named applicant’s claims against his mother’s country of nationality, Lebanon. Lebanon is also the country specified in the visa application as the country to which the first named applicant does not want to return, and in which it is claimed he would suffer persecution. 

1. On the facts before the Tribunal the only relevant country for the first named applicant is Lebanon. Therefore the Tribunal will consider the applicant’s claims for protection against Lebanon.

   Fear of Harm in Lebanon

2. The first named applicant has been denied rights to have his claim for Lebanese nationality recognised by the Lebanese authorities.  The Consulate would not register him. They also refused to issue him a Lebanese passport, travel document and any identification documentation. He therefore cannot travel to Lebanon unless he is issued a Travel Document by some other national authority in the future.

3. Even if the first named applicant was able to travel to Lebanon, the available information states that the Lebanese Courtesy Residence Permit is only available to the children of a Lebanese mother married to a foreign spouse. The first named applicant would not be eligible for the Courtesy Residence Permit because it appears his father was/is not married to his mother.  Even if he may be eligible the Tribunal notes the report from Al Jazeera, referred to above, that the process of obtaining a Courtesy Residence Permit is cumbersome and subject to the whim of bureaucrats.  In all the applicable circumstances the Tribunal is not satisfied the first named applicant will be obtain a Courtesy Residence Permit in Lebanon.

4. If the first named applicant is able to travel to and enter Lebanon he will be considered a foreigner, despite his mother’s Lebanese nationality. As described by DFAT and numerous other reports, a stateless child or foreign national child in Lebanon is denied access to public education, healthcare, work rights and residency. They have no right to vote. Without a Courtesy Residence Permit they have no right to reside in Lebanon.

5. Given the second named applicant will be returning to Lebanon with no job, no income, no external support, and no work experience the Tribunal considers the chances of her obtaining employment in Lebanon to be minimal.  She and the first named applicant will therefore face an impoverished life in Lebanon making private education for the first named applicant non-affordable.  Similarly, private health care is reportedly very expensive in Lebanon so will also be out of the financial reach of the applicants.

6. The Tribunal therefore finds that, as a child born out of wedlock to a foreign father the first named applicant will be denied education, health care, residence, and work rights in Lebanon, as well as civic rights associated with nationality, such as the right to vote.

7. In Chan v MIEA, Mason CJ held that:

   …the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage ... Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm ...[21]

   [21]   Chan v MIEA (1989) 169 CLR 379 at 388, per Mason CJ.

8. In the same case, 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.[22]

   …the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.[23]

   [22]  Chan v MIEA (1989) 169 CLR 379 at 430, per McHugh J.

   [23] Chan v MIEA (1989) 169 CLR 379 at 431, per McHugh J.

9. The Tribunal considers that the denial of health care and a right to work in Lebanon threaten the first named applicant’s capacity to subsist, and are therefore serious harm. Additionally, on a cumulative basis, the Tribunal finds that the discrimination and restrictions the first named applicant will face in Lebanon amount to an intolerable situation for him there and should be considered serious harm.

10. The Tribunal notes that the harms the first named applicant will face in Lebanon arise from the operation of Lebanese laws.  However, the Tribunal does not consider them to be laws of general application. As held by the High Court in Chen Shi Hai v MIMA:

    Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group - for example, “black children”, as distinct from children generally - cannot properly be described in that way.[24]

    [24] Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19] to [21].

11. The Tribunal considers that the laws impacting upon the second named applicant have a discriminatory character, which singles out women and their children for adverse treatment and disadvantage.  The Tribunal does not discern any legitimate object for the existence of such laws which discriminate against Lebanese women so that they may not pass on nationality to their children.  In Chen Shi Hai v MIMA, it was stated that:

    [w]hether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.[25]

    [25] Chen Shi Hai v MIMA (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [29], cited with approval in Applicant S v MIMA (2004) 217 CLR 387 per Gleeson CJ, Gummow and Kirby JJ at [45].

12. Available reports[26] refer to a concern by state authorities that allowing Lebanese women equal rights with men regarding their ability to pass on their nationality will disturb the demographic balance of the main religious groups in Lebanon, and result in a large increase of Sunni Muslims due to the number of Palestinian and Syrian men married to Lebanese women; as well as interfere with the Arab states’ stand in relation to Palestinians’ right of return.  While the Tribunal acknowledges these may be concerns of some in Lebanon, their legitimacy is arguable. In any event the Tribunal considers that the use of highly discriminatory laws against Lebanese women and their children does not amount to an appropriate measure to address such concerns.

    [26] See e.g. Reuters World News, 2016, ‘Lebanese citizenship law strips women of identity and property’, 25 May,

13. The Tribunal therefore finds that the laws which result in serious harm to the first named applicant are not of general application, and that they are not appropriate to achieve a legitimate object.

14. The Tribunal considers that the essential and significant reason for the serious harm the first named applicant will face in Lebanon is his membership of two particular social groups, namely Lebanese children with a foreign father, and children born out of wedlock in Lebanon.

15. The Tribunal finds that the harm to the first named applicant is the result of systematic and discriminatory conduct in that it will be done to the first named applicant selectively and intentionally, because he has a Lebanese mother but not a Lebanese father, and because his mother is not married to his father.  The harm the first named applicant will face in Lebanon is therefore persecution under the Act.

16. The Tribunal is satisfied that the threat of harm to the first named applicant exists throughout Lebanon so that there is no relocation option available to him.  As the harm feared is a result of government discrimination the Tribunal finds there is no protection available to the first named applicant in Lebanon.

17. On the basis of the above the Tribunal is satisfied that the first named applicant has a well-founded fear of persecution in Lebanon for a Convention reason.

    Section 36(3)

18. There is no indication or evidence that the first named applicant has a right to enter and reside in any other country and the Tribunal accordingly finds he has no such right. The first named applicant is therefore not excluded from Australia’s protection by s.36(3) of the Act.

    Second named applicant

19. While the second named applicant has provided evidence that she will also face serious harm in Lebanon, as a single mother without family support, the Tribunal can only consider her application under the family unit criterion. The Tribunal is satisfied that she is the mother of the second named applicant, who is her dependent. The Tribunal therefore finds that she comes within s.36(2)(b)(i) of the Act.

    CONCLUDING PARAGRAPHS

20. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations, and that the first named applicant satisfies the criterion set out in s.36(2)(a).

21. The Tribunal cannot consider the second named applicant under the criteria in s.36(2)(a) or (aa). However, the Tribunal is satisfied that she is the mother of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the second named applicant 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

22. 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 second named applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Melissa McAdam

    
    

    Member