1620453 (Refugee)

[2019] AATA 6847

1620453 (Refugee) [2019] AATA 6847 (29 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620453

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Paul Windsor

DATE:29 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 November 2019 at 3:08pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – particular social group – former member of the Lebanese military – person who served alcohol – targeted by remnants of Fatah al-Islam or other Islamist militant groups – credibility concerns – separation from child in Australia – current political stalemate and protests in Lebanon – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 on 23 November 2016 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).

2. [The applicant], who claims to be a citizen of Lebanon, applied for the visa on 22 October 2014.  A summary of the relevant law applicable in this case is at Attachment A.

3. In the Protection visa application [the applicant] indicated he was born in the town of [Town 1] in Lebanon on [date], is ethnic ‘Lebanese’, a Muslim, speaks reads and writes Arabic, and had never been married or in a de facto relationship.  He indicated that he departed Lebanon legally [in] October 2014 and arrived in Australia [in] October 2014, entering on a Visitor visa.[1]

   [1] See folios 19-34 of the Departmental file.

4. [The applicant] claimed that he left Lebanon because his life and safety was being threatened by Sunni militants and terrorist groups who accuse him of belonging to the infidel Lebanese army.

5. The delegate refused to grant [the applicant] a Protection visa because he did not find [the applicant]’s claims to be credible.  [The applicant] sought review of this decision by the Tribunal on 2 December 2016.  He provided the Tribunal with a copy of the delegate’s decision record.[2]

   [2] See folios 1-9 of the Tribunal file.

6. [The applicant] appeared before the Tribunal on 27 November 2019 to give evidence and present arguments.  The Tribunal also received oral evidence from [the applicant]’s brother, [Mr A].  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. [The applicant] was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims

8. [The applicant]’s claims were set out in his Protection visa application.[3]  He indicated that a detailed statement would be submitted in due course but no statement was provided.  His claims are summarised as follows:

   ·He left Lebanon because his life and safety was being threatened by Sunni militants and terrorist groups who accused him of belonging to the infidel Lebanese army. 

   ·He is a strong supporter of the Lebanese army and was also a former military member.

   ·He was discharged from the military on health grounds but remains a strong supporter of the military and denounces terrorists who are threatening the Lebanese military and the Lebanese nation.

   ·He has been threatened by militant Islamists and terrorist groups including militants operating in their area.  Threats against current and former Lebanese military members are escalating.

   ·Kidnapping of Lebanese military personnel is ongoing.  The Al Nusrah front have in their captivity 24 members of the Lebanese military.

   ·He fears that if he returned to Lebanon he may be killed or kidnapped by militant and terrorist groups operating in Lebanon.  These groups have issued religious decrees stating that all members of the Lebanese military are infidels and must be killed.  As a former member of the Lebanese military he is targeted by these groups.

   ·The authorities are unable or lack the capability to offer him effective protection.

   [3] See folios 23-27 of the Departmental file.

9. On 17 December 2014 [the applicant]’s then representative forwarded a psychologist’s report dated 12 December 2014 by [Mr B], Consultant Clinical Psychologist, in relation to [the applicant].  This report indicates that [the applicant] was seen on 5 and 12 December 2014 for a total of 3 hours.  In the report [Mr B] comments that [the applicant] was threatened recently (because of army service) by insurgents in Lebanon, and also comments that ‘threats were made because he (as a Muslim) was working in the hospitality industry, and in that context serving alcohol’.  [Mr B] noted that [the applicant] has had treatment for a skin condition, but no serious health problems.

10. [Mr B] concludes that, based on interviews and discussions with [the applicant] and the administration of selected tests of the Wechsler Adult Intelligence Scale IV (essentially non-verbal tasks); the Williams Test of Delayed Recall; and an 80 question personality test (the Symptom Sign Inventory of Foulds) [the applicant] has below average intellectual capacity; reasonably sound powers for delayed recall; and his personality test results were indicative of mild depression (‘a direct response to fears for his safety’) as well as anxiety linked to uncertainty about his future.[4]

    [4] See folios 41-46 of the Departmental file.

11. On 18 November 2016, following an interview with the delegate during which [the applicant] indicated he wished to submit further documents (in particular a letter from his local mayor indicating that terrorists have gone to the mayor asking about his whereabouts), the then representative submitted a copy of a letter purportedly from a mayor (and English translation) and copies of evidence of military enrolment (and English translations).[5]  The English translation of the letter purportedly from a mayor indicates that it has the seal of the Republic of Lebanon, Ministry of Interior and Municipalities, JP of [Village 1] and a signature.  Two witnesses, [Mr C] and [Mr D] are listed and the date 4 November 2016 is given.  The letter indicates that around two years ago, [the applicant] was being pursued from one place to another by a terrorist group and this group consistently asks about him until this day, although he has not been in the village for two years or in the whole country.

    [5] See folios 49-52 of the Departmental file.

    Findings and reasons

    Identity

12. Considering the copy of [the applicant]’s Lebanese passport provided to the Department and noting the delegate’s findings in this regard, the Tribunal finds that [the applicant] is a citizen of Lebanon as claimed.  Accordingly, the Tribunal finds that Lebanon is his country of nationality for Convention purposes and is his ‘receiving country’ for complementary protection purposes.[6]

    Key issues

    [6] See folios 35-36 of the Departmental file.

13. The key issues in this review are whether [the applicant] faces a real chance of suffering treatment amounting to persecution involving serious harm from Islamic extremists if he was to return to Lebanon, because he is a former member of the Lebanese military; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Lebanon, there is a real risk [the applicant] will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

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

    Credibility

15. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

16. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

17. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

18. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

19. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

20. For the reasons set out below, and after consideration of relevant country information, the Tribunal did not find [the applicant]’s key claim to be credible.  

    Assessment of claims

    Background

21. At the hearing [the applicant]’s brother [Mr A] indicated that he wished to sit with [the applicant] to assist him during the hearing because his brother is a simple man.  The Tribunal assented to this but asked that [the applicant] be allowed to answer the Tribunal’s questions in his own words and that his brother assist him with his responses only where necessary.

22. Noting the psychologist’s report of December 2014 stated that ‘personality testing was indicative of mild depression (a direct response to fears for his safety) as well as anxiety linked to uncertainty about his future’, but no indications were given or recommendations made about treatment for these issues, the Tribunal asked [the applicant] at the start of the hearing whether he was currently taking any medication.  He indicated that he was not other than medication for his [Medical Condition 1] (which affects his [Body Part 1]).  The Tribunal asked him if he had any other medical conditions currently and he indicated that he did not.

23. [The applicant] indicated that he has married since the time of the delegate’s decision and has [a son].  He indicated that he and his wife separated about two months ago.  He indicated that apart from his brother he also has a number of uncles and an aunt from his mother’s side of the family who are residing in Australia.  He indicated that his parents and [number] of his siblings remain living in Lebanon, in and around his home village of [Village 1] in Akkar Governorate in the northernmost part of Lebanon.

24. Noting that the evidence of military service provided to the Department indicates that he served as a [military rank] in the Lebanese Army [from] 2007 until he was discharged [in] 2010 (having been found unsuitable for military service due to his [Medical Condition 1]), the Tribunal asked [the applicant] why he had indicated to the delegate that he had served with the Lebanese Army from 2006.  He indicated that he did his compulsory military service for six months and then joined the army.  He commented that he did his compulsory service at [a specified] training camp located near [City 1] in north Lebanon.  He indicated that this period consisted solely of training, including assembly and disassembly of weapons and exercise drills, and he undertook no active duty during this time.  The Tribunal accepts this is the case.

25. The Tribunal asked [the applicant] what duties he undertook while he was serving with the Lebanese army and in which locations in Lebanon he served.  He said he did guarding, manned checkpoints, trained on weapons and took care of public security.  He indicated that all his service was in Beirut, in different locations across the city.  The Tribunal asked him what things required guarding at that time.  He indicated that there were sometimes demonstrations or protests and sometimes there was fighting between Sunni and Shia groups.  The Tribunal asked him if he was ever required to fire his weapon.  He indicated he was not.  He indicated that he was involved in arresting and detaining people, who were then handed over to the judicial police.  He indicated he was also involved in raiding places where suspected offenders were located and detaining people who were involved in fighting and had weapons, or who were involved in smuggling or trafficking.  He commented these people were intimidating the public with their weapons.  The Tribunal asked [the applicant] if he was ever injured in the course of his duties.  He indicated that once he fell when he slipped climbing onto a tank.

26. The Tribunal asked [the applicant] if he worked as a [Occupation 1].  He indicated that he did, for about a year, and while he was not sure exactly when this was, he thought it was possibly around 2013.  He said he worked close to [Village 2] in Akkar, which is about 25-30 minutes by car from his family home in [Village 1].  The Tribunal also asked [the applicant] if he worked as a [Occupation 2] in [specified businesses].  He indicated that after he was discharged from the army ([in] 2010) he worked as a [Occupation 2] in Beirut for about 18-24 months for 6 hours a day, 5-6 days a week.  He said he worked at different places including [Business 1] (mentioned in his application).  He indicated he was living in Beirut at this time and rarely went back to Akkar in the north of Lebanon.  He said this was because ‘they’ were after him.

    Is there a real chance that [the applicant] would suffer persecution involving serious harm from Islamic extremists or terrorists should he return to Lebanon?

27. The Tribunal notes that the delegate’s decision record (a copy of which [the applicant] provided to the Tribunal) indicates that he commented at the interview with the delegate that he had encountered ‘Daesh’ at the Nahr al-Bared refugee camp and that Islamist militants wanted him because when he was in the Lebanese army they had killed the head of Fatah al-Islam.[7]  A BBC News report indicates that Fatah al-Islam first came to prominence in 2007 when it began fighting the Lebanese army from its stronghold in the Nahr al-Bared refugee camp near Tripoli.[8] The BBC News report indicates that more than 400 people, including civilians, died in three months of clashes between Fatah al-Islam and the Lebanese Army before the army took control of the camp, and that some reports said all but 30 of Fatah al-Islam’s estimated 200 fighters were killed.  It was reported, however, that the then leader of Fatah al-Islam, the Palestinian militant Shaker al-Abssi, was believed by Lebanese authorities to have escaped the day before the camp was stormed by the army, presumed to have fled the country, and was now believed to be dead.  The new head of Fatah al-Islam, Abd-al-Rahman Awad was killed at a checkpoint in August 2010, while travelling with an aide under a false identity in the Bekaa Valley.  The BBC News report comments that the group’s leaders say Fatah al-Islam has two aims: reform of the Palestinian refugee community in Lebanon in line with Islamic Sharia law, and confronting Israel.  In March 2012, the International Crisis Group reported that the conflict erupted in May 2007 following a bank robbery which swiftly snowballed into an armed confrontation against the militants, and that Fatah al-Islam was a previously unknown Islamist fundamentalist group, based inside the Nahr al-Bared Palestinian refugee camp.[9]

    [7] In this decision record the terms Daesh, ISIL (Islamic State in Iraq and the Levant), ISIS (Islamic State in Iraq and Syria) and IS (Islamic State) are used interchangeably to refer to the same group – the different terms are used to reflect the term used by the applicant or referred to in a country information source.

    [8] ‘Profile: Fatah al-Islam’, BBC News, 15 August 2010, ‘Lebanon’s Palestinian Dilemma: The Struggle over Nahr Al-Bared’, International Crisis Group, Middle East Report No 117, 1 March 2012, >

    Given this background, the Tribunal asked [the applicant] if he was at Nahr al-Bared in 2007 when the Lebanese Army clashed with Fatah al-Islam.  He said he was.  He indicated that Fatah al-Islam was fighting against the army and he was in a group that was a little bit away.  The Tribunal asked [the applicant] how he could have been at Nahr al-Bared in 2007 when the army clashed with Fatah al-Islam given he had told the Tribunal that after he completed his six month’s compulsory service from June 2006 in [a specified training camp] (near [City 1]), he served in Beirut.  [The applicant] said he was transferred for about three weeks because they needed soldiers for support.  He indicated that they needed logistical support and they were not at the forefront but were a bit at the back.  He said he was mainly on checkpoints to prevent anyone entering.  He commented that there was a lot of fighting between groups from the camp and the army and about 118 soldiers were killed, many were wounded and about 24 were kidnapped.

28. The Tribunal put to [the applicant] that country information indicates that the head of Fatah al-Islam, Shaker al-Abssi, fled before the army stormed the camp.  He commented that after the fighting the terrorists were spread all over Lebanon from Beirut to Akkar and were looking for him for many years.  He said they covered their faces so only their eyes were showing so it was hard to identify them.

29. The Tribunal asked [the applicant] if he experienced any problems while he was living in Beirut.  He replied ‘yes’.  When asked what problems he commented that the city is different to the village as it is high rise and crowded and because the hotels have many floors it was difficult for ‘them’ to catch him.  The Tribunal asked [the applicant] why they were looking for him in Beirut.  He said that when he was serving in the army, they accused him of killing one of them.  He indicated that once when he was in the village they came looking for him so he had to flee.  He said he went to the mayor’s house and then had to move around for four days until he could get to the city.  He commented that they were asking his parents about where he was and they are still asking about him.

1. Noting that the delegate’s decision record indicates that [the applicant] told the delegate they attacked him with weapons, the Tribunal asked [the applicant] how he was able to escape from these people if they had weapons.  He said he heard them screaming that they wanted to get him dead or alive so he jumped into the bush and they were not able to see him because it was like a forest with big high trees.  He said there were more than 5-6 of them and they shot in the air.  He indicated that he then went into hiding at the mayor’s house where he stayed overnight and told them what had happened, and then he moved from one place to another for 4-5 days until he arrived in Beirut city.  He added that they are on the streets in the city but can’t go inside the lifts and go up to get him.  He said they came many times looking for him but the first incident was in 2011.  [The applicant] said that when they fought the Lebanese Army at Nahr al-Bared he was there and they had noticed him.

2. The Tribunal queried [the applicant] about other times these people had come looking for him.  He said his brothers have told him that they always come asking about him and leave messages saying they want him dead or alive.  He commented that as a consequence he rarely went to his home area.  The Tribunal queried [the applicant] in that case why he went back to Akkar to work as a [Occupation 1].  He said there was not work for him anymore in Beirut so he went to the [Village 2] area (which he had indicated was 25-30 minutes’ drive from his family home).  He added that he slept in the workshop and if he went back to his home village he would call his brother before he left and his brother would check the road for him.

3. The Tribunal asked [the applicant] about the letter that had been submitted in November 2016 purportedly from his mayor indicating that about two years ago he was being pursued from one place to another by a terrorist group and that this group constantly asks about him until this day.  The Tribunal queried that the letter lists two witnesses, one of whom appears to be his father ([Mr C]), and a person named [Mr D], gives a date of 4 November 2016, and the seal indicates it is from  the ‘JP’ of his home village, [Village 1].  [The applicant] confirmed that the first name given is his father but said the second was the mayor.  [The applicant]’s brother, [Mr A], interjected and said [Mr D] is just a witness and is not the mayor, and the mayor is the one who stamped the letter.  The Tribunal showed [Mr A] the Arabic language copy of the letter and he indicated that it was signed by his father [Mr C] and [Mr D] as witnesses, and then signed by the mayor, who he said was [Mr E], who still is the mayor of the village.  It was explained that the mayor in such villages is responsible for registering events such as births, deaths and marriages and issuing relevant personal status certificates.

4. The Tribunal queried [the applicant] that it was having trouble understanding why Islamic extremists would want to target him in 2011 given what he had told the Tribunal regarding his role in the incident at Nahr el-Bared between the Lebanese army and Fatah al-Islam in 2007 and the passage of time since that incident.  He replied that it was because he was serving in the army and there was fighting.  He said he was discharged for medical reasons and they were looking for him all that time but he was not there.  He commented that he saw them when they came for him in the incident he had described in 2011 when he was able to escape into the forest.  He added that if they want someone they will stay after them, regardless of the passage of time, whether it is 2011 or 2014, because they just do what they want to get revenge.

5. The Tribunal put to [the applicant] country information drawn from the most recent Country Information Report by the Department of Foreign Affairs and Trade (DFAT),[10] the 2014 DFAT Country Information Report, and other sources as indicated (emphasis added), as follows:

   [10] DFAT Country Information Report, Lebanon, 19 March 2019, sections 2.23-2.49 and 5.2-5.6.

   ·Lebanon faces a range of security challenges. These include external threats related both to the conflict in neighbouring Syria and to tensions between Hezbollah and Israel; threats of terrorist attack from internal and external actors; politically-motivated violence due to civil unrest; and occasional incidents of communal violence. The government maintains security checkpoints, primarily in military and other restricted areas.

   ·Violent incidents related to the Syrian conflict have occurred across Lebanon in recent years, including suicide bombs, car bombs, improvised explosive devices, rocket attacks, and kidnappings. Examples of such incidents include (but are not limited to):

   ­The detonation of several bombs in central Beirut between 2012 and 2016 which caused multiple deaths and injuries;

   ­Two suicide bomb attacks outside a mosque and a bakery in Borj el Barajne in the southern suburbs of Beirut In November 2015 that killed at least 43 people and injured more than 200;

   ­A suicide bomb attack outside a café in Tripoli in January 2015 that killed at least nine people.

   ·The Lebanese Armed Forces (LAF) consists of 96,000 active personnel and 20,000 reserve personnel. The overwhelming majority of LAF personnel serve in the army.

   ·Lebanon abolished conscription in 2007 and the LAF consists entirely of professionals.

   ·The LAF has conducted military operations in recent years against Islamic State militants occupying areas along Lebanon’s eastern border with Syria.

   ·Clashes have occurred between Lebanese security forces and Islamic State militants in the north-eastern Beka’a valley region (including the Hermel-Baalbek region and the towns of Arsal, el Qaa and Ras Baalbek).

   ·DFAT understands that security operations conducted against Islamic State have succeeded in reducing the threat the organisation poses, although ‘lone wolf’ attacks cannot be ruled out.

   ·In its 2014 Country Information report DFAT indicated it is not aware of any specific risk of violence to former members of the LAF.[11]

   [11] DFAT Country Information Report, Lebanon, 25 February 2014, section 3.92.

   ·A 2012 Country of Origin Information Section (COIS) report considered whether former members of the LAF, particularly those who fought against Fatah al-Islam, have been targeted for their activities.  The report commented ‘No recent information was located indicating that former members of the Lebanese Armed Forces are being targeted because of their activities while in military service. It is noteworthy that while Fatah al-Islam is thought to remain active, reports indicate that its capacity was greatly diminished following the conflict with the Lebanese Armed Forces in the Palestinian refugee camps in 2007.[12]

   [12] 'Lebanon – LBN40151 – Future Movement – Former Armed Services – Fatah al-Islam', Country of Origin Information Section (COIS), 14 May 2012, CR0DEDD73630.

   ·A 2016 COIS report considered the presence and activities of ISIS in northern Lebanon.[13]  The report commented that no information was located to indicate that Islamic State (IS and previously known as ISIS and ISIL) has established a presence in Akkar province. It states that in mid-2015 IS forces threatened to take control of the Lebanese-Syrian border which may have brought Akkar province within reach, however, this did not eventuate.

   ·The 2016 COIS report comments that sources indicate the presence of supporters of extremist groups, including IS, in Akkar province and notes that a July 2015 Al Monitor article states that IS held large parts of the Syrian province of Homs which borders the Lebanese province of Akkar. The article stated that if IS was able to take the city of Homs, it would open up the possibility of IS control of towns on the Syrian-Lebanese border.A July 2015 article in the Lebanese newspaper The Daily Star affirms the danger posed by an IS takeover of Homs but quotes a ‘senior security source’ based in northern Lebanon as stating that the ‘option’ of IS invading Akkar was ‘not a viable one.’ The source, together with Akkar residents quoted in the article spoke of the danger of local ‘sleeper’ cells being activated.

   ·A 2017 COIS report comments on the presence of ISIS in Lebanon.[14]  It comments that reports indicate that Hezbollah has targeted Sunni Islamist fighters in northern Lebanon, including members of the al-Qaeda linked Nusra Front and Islamic State (IS), since the war in Syria began and that in May 2015, The Daily Star reported that Hezbollah had stationed troops in the eastern Bekaa village of Tfail.

   ·The 2017 COIS report comments that Information indicates that IS has a limited presence in Lebanon, primarily along the north-eastern border with Syria, and that Lebanon is relatively more secure than its neighbouring countries. This notwithstanding, IS has staged isolated attacks in Lebanon in the past few years. Information was found suggesting that IS has targeted Shi’ites and members of Lebanese security and intelligence forces or people who have co-operated with these forces.

   ·The 2017 COIS report states that reports indicate that IS militants are stationed along the northeast Lebanese-Syrian border, particularly in the town of Arsal.  According to a report from January 2017, the only areas where they currently have a presence are those that extend from the outskirts of the villages of Arsal and Ras Baalbek and across to the Syrian city of Qarah, which is located between the Qalamoun Mountains and the eastern Lebanese mountain range. These IS militants are targeted by the Lebanese army and Hezbollah on a daily basis.

   ·The 2017 COIS report notes that IS has performed incursions into the Bekaa valley that have resulted in significant clashes with the Lebanese army and security forces and that, according to the 2016 US Department of State report (which covers the events of 2015) in 2014 there were clashes between army personnel and Islamist militants, including IS in Arsal, which resulted in the death of 19 members of the Lebanese army. Several members of the army and security forces remained in captivity after being kidnapped by IS militants. Furthermore, on 5 November 2015, IS killed seven Sunni religious figures in Arsal on the basis that they had cooperated in prisoner hostage negotiations.

   ·The 2017 COIS report indicates that in May 2016, Now reported that due to the Syrian army regaining the Syrian towns of Mheen, Palmyra and Quryatayn and therefore pushing IS back, IS militants in northern Lebanon have become more isolated. Therefore, the ability of IS to break through army lines between Qaa and Arsal in Lebanon and to attack towns in the Bekaa valley has been significantly hindered.

   ·In relation to the kidnapping of LAF personnel by Sunni Islamist fighters in Arsal, in December 2015 BBC News reported that the al-Nusra Front had released 16 Lebanese soldiers and police officers who had been held captive since August 2014, as part of a prisoner swap deal.  The report indicates that jihadist militants from al-Nusra and IS had seized more than two dozen security force personnel during a major attack on Arsal in August 2014.  The report indicates that another nine security force personnel are still being held by IS.[15]  Reporting by Aljazeera on the same incident indicates that 35 soldiers and policemen were taken captive by IS and al-Nusra Front during clashes in the Lebanese border town of Arsal in August 2014, seven were released subsequently and four were killed before 16 were released by the al-Nusra Front in December 2015.  The Aljazeera reporting also indicates that nine security force personnel remain in IS captivity.[16]

   ·The 2017 COIS report indicates that IS has staged suicide attacks in Beirut, the most significant being on 12 November 2015 when twin suicide bombs killed 43 people and injured more than 200. IS indicated that the attack specifically targeted ‘heretics’ in a predominantly Shi’ite area and vowed to carry out further attacks.  In January 2014, IS claimed responsibility for a car bombing against Hezbollah’s political office in Haret Hreik, Beirut. 

   ·The 2017 COIS report indicates that IS is recruiting Sunni men. In May 2016 a report indicated that IS was ‘recruiting in Tripoli and northern Lebanon to establish sleeper cells’ and furthermore, that ‘security sources say that ISIS is paying new recruits in north Lebanon about $50 a week to establish cells and await instructions’. 

   [13] 'LBN CI160225150935801 - Islamic State (IS) – Akkar Province (Fnaydek and Qabaait)', Country of Origin Information Services Section (COISS), 07 March 2016, CR0D9DEFA85, 2.

   [14] 'Lebanon: CI170118113932199 – Hezbollah – Presence of Islamic State – Sunni men – Relocation to areas between Tripoli and Beirut', Country of Origin Information Services Section (COISS), 02 February 2017, CR8DFDCEA25, 2-3, 4-6.

   [15] ‘Lebanese troops freed by Syrian jihadists in prisoner swap’, BBC News, 1 December 2015, ‘Lebanese army and al-Nusra Front conduct prisoner swap’, Aljazeera, 2 December 2015, >

   The Tribunal commented that the country information seems to indicate that the immediate and severe threat posed by IS in Lebanon seems to have been reduced by the defeat of IS in Syria and the activities of the Lebanese Armed Forces and Hezbollah in attacking IS in the areas of Lebanon bordering Syria, particularly the town of Arsal, through which IS militants tried to enter Lebanon.  The Tribunal added that reporting indicates that while the threat from IS had been reduced, ‘lone wolf’ or solo attacks cannot be ruled out. The Tribunal  commented that the capability of Fatah al-Islam appears to have been greatly diminished following the 2007 conflict between Fatah al-Islam and the Lebanese Army.  The Tribunal added that the country information does not suggest that Fatah al-Islam or other militant or jihadist groups are targeting former members of the Lebanese Armed Forces.

6. [The applicant] commented that Fatah al-Islam had been planning for an event two years or more before 2007. He said army personnel who were on leave were forbidden from passing through the Nahr al-Bared refugee camp, even in an official uniform and with a licensed weapon. He commented that he was serving at the time of the fighting and even if Fatah al-Islam’s capability is not as it was before, there are sleeper cells so if they want someone they can get anyone. He added that if he returns to Lebanon now the IS people will kill him and, if they don’t, he will be dead anyway given the awful situation in Lebanon at the moment where all the shops have closed down. [The applicant]’s brother [Mr A] commented that for the last month and the last 10 days there have been demonstrations and no government and he feels that fresh reporting would help. The Tribunal commented that it was aware of the current protests in Lebanon, having read a recent BBC News article,[17] and an article in The Australian newspaper.[18]  The Tribunal commented that it was aware from the recent reporting that the caretaker Prime Minister Saad Hariri had withdrawn his candidacy for the premiership in response to large scale anti-government protests over the ailing economy and rampant corruption.  The Tribunal added that the reporting indicates that violent clashes had occurred between supporters of the Shia groups Hezbollah and Amal and other protesters who had blocked a main street in Beirut, and the Tribunal was therefore aware of the current political tensions, protests in Beirut and the impact this was having on ordinary Lebanese citizens.

   [17] ‘Lebanon protests: Caretaker PM Saad Hariri withdraws candidacy’, BBC News, 26 November 2019, ‘Ugly cracks appear in Lebanon’s fault lines’, The Australian, 26 November 2019, >

   The Tribunal asked [the applicant]’s brother [Mr A] if he wished to make any further comments.  He commented that the applicant is his brother and the psychologist’s report states that he is ‘poorly minded’.  He added that his brother has been in Australia for five years now, is a peaceful and law-abiding man who has not caused any problems and who he supports.  He said if his brother returns to Lebanon he will have no future.  He added that his brother has a son in Australia and needs to be able to see him as well.

7. Having carefully considered [the applicant]’s evidence and the relevant country information, the Tribunal does not accept his key claim that he has been targeted by Fatah al-Islam or other Islamic militant groups, including IS or the al-Nusra Front, and that they wish to capture him dead or alive because he served in the Lebanese Army and particularly because he was stationed at the Nahr al-Bared Palestinian refugee camp near Tripoli for a time during the conflict between the Lebanese Army and Fatah al-Islam militants from May 2007.  This is for the following reasons, considered cumulatively.

8. Firstly, while the Tribunal accepts that [the applicant] served as a [rank] in the Lebanese Army from around mid-2006 until he was discharged [in] 2010, and that he may have served in the vicinity of the Nahr al-Bared refugee camp for a period of a few weeks during the conflict in 2007 (as claimed), the Tribunal does not accept that his presence and role at that time would have led to Fatah al-Islam militant’s or other militant Islamist groups targeting him for revenge and pursuing him for the next seven years until he departed Lebanon in October 2014.  [The applicant] indicated that he served in a logistical support role at the time, doing guarding duties, ‘a little bit away’ at the back and was mainly on a checkpoint to prevent anyone entering the camp.  He indicated to the Tribunal that he did not fire his weapon in the course of his duties while on active service for the Lebanese Army.  While the Tribunal accepts that Fatah al-Islam militants may have seen him while he was undertaking these duties for a brief period, it seems highly unlikely that, in the context of a fierce conflict in which the majority of the militants were killed, as well as a significant number of Lebanese Army personnel, that Fatah al-Islam would have noted his identity and marked him for abduction or death, or have accused him of killing one of them.  In relation to [the applicant]’s comment that army personnel who were on leave were not permitted to pass through the camp, the Tribunal accepts this was the case and that there would have been a high risk to any member of the armed forces who sought to do so, but notes that he never indicated that he did this.  DFAT advice is that under a decades-long agreement with the Palestine Liberation Organisation, Lebanese security forces do not enter the Palestinian camps in Lebanon, but check vehicles and the identification of those entering and leaving the camps.[19]

   [19] DFAT Country Information Report, Lebanon, 19 March 2019, section 2.49.

9. Second, [the applicant] has suggested that he was targeted by Fatah al-Islam immediately because he was at Nahr el-Bared at the time of the 2007 clash between the Lebanese Army and Fatah al-Islam, but was able to avoid them apart from an incident in 2011 when he saw them coming for him in his home village of [Village 1] but was able to flee from them and escape into the forest.  He indicated at the hearing that after he was discharged from the army in mid-2010 he worked as a [Occupation 2] in Beirut for about 18-24 months.  He commented at the hearing that militants were present on the streets in Beirut but because the streets are crowded and the buildings have many floors it was difficult for them to catch him.  The Tribunal found this evidence unconvincing.  The Tribunal considers that if militant Islamists had targeted [the applicant] to be abducted and or killed, they could have found a way to get into his building or waited for him to leave to go to work or for some other reason and then apprehended him.

1. Third, the Tribunal found unconvincing [the applicant]’s evidence that he was able to escape more than 5-6 armed militants who came to his family home when he was there in 2011 because they were screaming that they wanted to get him dead or alive as they approached his home, and he was able to escape into the forest.  The Tribunal considers it highly improbable that armed militants who had been searching for him unsuccessfully for many years, would have screamed as they approached the house enabling him to escape into the forest, rather than ambushing him.  

2. Fourth, the Tribunal found unconvincing [the applicant]’s claim that militants called at his family home many times enquiring about his whereabouts and are still making such inquiries.  In such circumstances it would be expected that his parents would have told the militants in 2014 that he had fled overseas and would not be returning.  It might also be expected that if militants really wanted him dead or alive and could not locate him, they might put pressure on the family to reveal his whereabouts by abducting another family members, such as one of his siblings.  In considering this evidence the Tribunal has had regard to the letter purportedly signed by the mayor of [Village 1] village of 4 November 2016 indicating that around two years ago [the applicant] was being pursued by a terrorist group which continues to ask about him.  The Tribunal notes that the mayor has signed a statement by two purported witnesses, one of whom is [the applicant]’s father and the other is said to be a member of the village.  The mayor himself is not providing any personal comment on [the applicant]’s circumstances, even though [the applicant] claimed at the hearing that he fled to the mayor’s house and stayed there overnight when he was ‘attacked’ by militants in 2011.  The Tribunal also notes that these purported witnesses gave their report shortly before [the applicant]’s interview with the delegate on 17 November 2016.  The Tribunal does not accept that the persons providing this evidence, including [the applicant]’s father, are independent witnesses and does not accept that this letter provides independent evidence that the claimed incidents have occurred.  Accordingly, the Tribunal gives the letter no weight.  

3. Fifth, [the applicant] indicated he returned to the Akkar Governorate in around 2013 and worked as a [Occupation 1] in [Village 2], about 25-30 minutes’ drive from his home village.  He said he did that because he could not get work in Beirut and that he slept in the workshop and if he went home, he called his brother to check for him that the road was clear of militants.  The Tribunal also found this evidence unconvincing.  It is difficult to accept that [the applicant] was unable to find any work at all in Lebanon’s biggest city, given he indicated he had been working in several [businesses] for 18-24 months, and that he would take the risk of returning to Akkar Governorate (and visiting his home village) if he really thought militants had targeted him for abduction and wanted him dead or alive.

4. Sixth, there is no independent evidence to indicate that the remnants of Fatah al-Islam or other Islamist militant groups are abducting former Lebanese Armed Forces personnel.  While the relevant country information indicates that the al-Nusra Front and IS kidnapped serving soldiers and policeman in August 2014 during fighting at the Lebanese border town or Arsal, the country information from DFAT in 2014 indicated DFAT was not aware of any specific risk of violence to former members of the Lebanese Armed Forces (LAF).  Similarly, the 2012 COIS report, which specifically considered whether former LAF personnel, particularly those who fought against Fatah-al-Islam, have been targeted for their activities, stated that no recent information could be located indicating that former members of the LAF are being targeted because of their activities while in military service.

5. Seventh, while [the applicant] indicated that he did experience problems while he was in Beirut because he worked as a [Occupation 2] serving alcohol (as indicated in the psychologist’s report), his evidence in relation to this was unconvincing.  He indicated that he did not experience problems with patrons of the [businesses] where he worked but experienced problems with people outside.  When asked what people he replied ISIS.  He said he had to run away from them all the time and they threatened him with weapons.  He commented that they are in the streets but it is hard for them to go inside the buildings.  [The applicant]’s brother [Mr A] commented that because his brother is a Muslim people would ask him why he serves alcohol because it is haram (forbidden) and it is not good to be like a Christian.  While the Tribunal accepts that some Muslim colleagues of [the applicant] may have questioned him about serving alcohol and expressed disapproval, the Tribunal does not accept that he was threatened by IS or other militant groups while he was in Beirut because he was serving alcohol or for any other reasons.  As noted above, the Tribunal considers that if Islamic militants, including IS, had a serious interest in [the applicant], they could have located him and abducted him or killed him while he was in Beirut if they had wished.

6. Accordingly, the Tribunal does not find [the applicant]’s claim to have been targeted by Fatah al-Islam, IS, or other Sunni militant or terrorists groups due to having served in the Lebanese army and/or due to having served alcohol as a [Occupation 2], to be credible.  The Tribunal does not accept that he was attacked by Islamist militants and was able to escape from them, that he went into hiding, or that militants came to his family home many times, and continue to call there, enquiring about his whereabouts and indicating that they want him dead or alive.

7. Considering the relevant country information, while the Tribunal accepts that there remains some risk from Sunni militant groups, including IS, in Lebanon, the Tribunal finds that risk has been reduced by the collapse of IS in Syria and the success of the LAF and Hezbollah in gaining control of key Lebanese towns on the Lebanon-Syria border.  For the reasons set out above the Tribunal does not accept that [the applicant] has been targeted for harm by Sunni militants, including Fatah al-Islam, IS and/or the al-Nusra Front, and considers there is not a real chance that [the applicant] will be caught up in any ‘lone wolf’ terror attacks by IS or other Sunni militants or by sleeper cells.

   Conclusion – refugee criterion

8. After careful consideration of all the available evidence, [the applicant]’s personal circumstances and the relevant country information, and considering [the applicant]’s claims both individually and cumulatively, the Tribunal does not accept that there is a real chance that [the applicant] will suffer persecution involving serious harm from Fatah al-Islam, the al-Nusra Front, IS or any other Sunni militant or terrorist group because he is a former member of the Lebanese army who served at the Nahr Al-Bared Palestinian refugee camp in 2007, served alcohol, or for any other reasons.

9. Accordingly, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention.  Therefore, [the applicant] does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection

10. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act. 

11. In considering whether there is a real risk that [the applicant] will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Lebanon, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[20]

    [20] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

12. The Tribunal, having regard to the findings of fact set out above, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Lebanon, there is a real risk that [the applicant] would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment by Fatah al-Islam, the al-Nusra Front, IS or any other Sunni militant or terrorist group, or anyone else, should he be returned to Lebanon.

13. In reaching this conclusion the Tribunal has considered the psychologist’s report of 15 December 2014.  While this indicated that, at that time, personality testing was indicative of [the applicant] having mild depression and anxiety, it did not indicate that [the applicant] was receiving any treatment or any treatment was proposed for these issues.  At the hearing [the applicant] indicated that he was not taking any medication other than for his [Medical Condition 1] (affecting his [Body Part 1]) and that he did not have any other health issues.  Accordingly, the Tribunal finds that [the applicant] presenting with signs of mild depression and anxiety nearly four years ago in December 2015 is not a significant issue in relation to consideration of him being removed from Australia to Lebanon.

14. The Tribunal accepts the evidence given at the hearing that [the applicant] had married since the delegate’s decision on 23 November 2016, has a son who is [age], and is now living separately from his wife and son.  The Tribunal considers that if [the applicant] was removed from Australia to Lebanon this may cause him some emotional pain and suffering.  The Tribunal finds however, that any such hardship would not constitute cruel and inhuman treatment and punishment or degrading treatment or punishment for the purposes of the complementary protection criterion.  This is because there would not be an intention by any party to deliberately inflict such emotional harm on him by removing him from Australia to Lebanon, whereupon he might be separated from his son.

15. The Tribunal has also considered the concerns raised by [the applicant] regarding the current political stalemate and protests in Lebanon which have resulted in disruption to shops, services and businesses in Beirut; and violent clashes between supporters of Shia groups Hezbollah and Amal and protesters calling for reforms to government to address economic decline and corruption.  Given [the applicant] has family in [Village 1] in Akkar Governorate and the Tribunal assesses that he can safely return there (without facing a real chance of serious harm or a real risk of significant harm from Sunni militant groups), the Tribunal considers that there is no basis for [the applicant]’s concerns expressed at the hearing that he will be dead anyway if he returns to Lebanon given the current situation in Lebanon where there is no government and demonstrations.  The Tribunal finds that country information indicates the caretaker Prime Minister stepped down to ‘help break the deadlock’ so that ‘the government Lebanon needed would be formed’ and he was seeking to move aside so that someone else could ‘form a government that addresses the aspirations of the young men and women’ of Lebanon.  The former caretaker Prime Minister is reported as commenting that he has’ full hope and confidence after announcing this clear and decisive decision that the president of the republic…will immediately call the binding parliamentary consultations to appoint a new prime minister’.[21] 

    [21]‘Lebanon protests: Caretaker PM Saad Hariri withdraws candidacy’, BBC News, 26 November 2019, >

    The Tribunal considers that the current political stalemate is a temporary event that will be resolved through the appointment of a new prime minister.  While the Tribunal accepts that the closure of shops and businesses in Beirut has created hardship for the residents of that city, the Tribunal also considers that this is a temporary response to the current political stalemate.  The Tribunal does not accept that it means that [the applicant] will have no future in Lebanon as asserted by his brother.  The Tribunal also considers that there is not a real risk that [the applicant] would be caught up in the violent clashes that reportedly have occurred between Shia supporters of Hezbollah and Amal, and anti-government protesters.  The Tribunal notes that the BBC News report indicates that police and soldiers have been active in separating the two sides.

16. Accordingly, the Tribunal is not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Member of the same family unit as a Protection visa holder

17. 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 criterion in s.36(2).

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Paul Windsor

    
    

    Member

    ATTACHMENT A   Relevant law

19. 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

20. 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).

21. 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.

22. 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.

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

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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

30. 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’).

31. ‘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.

32. 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.

    Member of the same family unit who holds a Protection visa of the same class

1. 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 spouse or de facto partner and dependent children.

   Section 499 Ministerial Direction

2. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) - 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.