1700708 (Refugee)

1700708 (Refugee) [2020] AATA 5362 (17 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700708
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Shahyar Roushan
DATE:17 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 December 2020 at 12:28pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion – Australia-born child of moderate Sunni Muslims from conservative families – parents’ opposition to male circumcision, female genital mutilation and religious radicalism – political opinion – father member of political parties – credibility – inconsistent, misleading and untruthful evidence – applicant circumcised despite parents’ claimed opposition – parents’ and siblings’ previous protection application refused and refusal affirmed – country information on general security and political and sectarian tensions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 48A, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant is a [age]-year-old child born in Australia. His parents are Lebanese nationals and Sunni Muslims. They first arrived in Australia [in] June 2010 as holders of [Student visas]. The applicant is the youngest of four siblings. He has one brother and two sisters. His brother and one of his sisters were born in Lebanon and another sister was born in Australia.
The applicant’s father, [Mr A], applied for a Protection visa on 27 February 2013. The applicant’s mother and three siblings were included in the application as members of the same family unit. Their application was refused by the Department on 25 September 2013 and the decision was subsequently affirmed on review by the former Refugee Review Tribunal (RRT).
On 3 December 2015, the applicant’s mother, [Ms B], made an application for a protection visa on behalf of the applicant. [Ms B] and the applicant’s three siblings were included in the application as members of his family unit. [Ms B] was subsequently removed from the application and the applications for the applicant’s siblings were found to be invalid by operation of s 48A of the Act.
Evidence before the Department
Protection visa application
In a statutory declaration attached to the protection visa application, [Ms B] made the following claims.
She is a Lebanese national. She arrived in Australia with her husband and two children [in] June 2010. Her two younger children were born in Australia.
She was born a Sunni Muslim and considers herself to be ‘moderate’ in her religious and social views. She and her husband come from ‘an extremely conservative Sunni Muslim background.’
Her family and her Sunni community adhere to 'extremely stringent religious traditions including circumcision of both male and female children.’ This practice is becoming ‘rampant’ and ‘more and more common’ due to the ‘growing radicalisation’ of the Sunni population. In her religion, female circumcision is viewed as a virtuous act.
Both she and her husband are opposed to genital circumcision, particularly female genital circumcision unless it is medically prescribed, and consider it to be cruel. They are determined to protect their children from these practices.
Both her family and her husband’s family ‘constantly pressure’ them to have their children ‘both male and female’ circumcised. She and her husband fear that this practice will be carried out on the children against their will. Those who do not adhere to strict Islamic practices and teaching are subjected to harassment and possible harm by family members or the wider Islamic community.
There is no state protection available to her children as the Lebanese authorities do not intervene in religious matters. All matters relating to religion are dealt with by Islamic Sharia courts.
Supporting documents
The applicant’s representative submitted to the Department a psychological report in relation to [Ms B], dated 20 November 2015. The report, authored by [Mr C], a psychologist, recounted [Ms B’s] claims that she fears returning to Lebanon as her family are insistent about her children being circumcised. She stated that if forced to go back, she would be ‘desperate and suicidal’. According to the report, [Ms B] is ‘extremely severely depressed, anxious and stressed’ due to her fear of her children being subjected to circumcision in Lebanon.
The interview
On 1 August 2016, [Ms B] attended an interview with the Department and made submissions on the applicant’s behalf. The interview was conducted with an interpreter in the Arabic and English languages. Where relevant, [Ms B’s] oral evidence to the Department is referred to below.
The delegate’s decision
On 22 December 2016, a delegate of the Minister refused the applicant’s protection visa application. The delegate did not find the claims raised by the applicant’s mother on his behalf to be plausible or credible. On the basis of country information before her, the delegate was not satisfied that the applicant would be compelled as a Sunni Muslim male to be circumcised in order to be recognised as a Sunni Muslim and to practise his Islamic faith in Lebanon. The delegate found that the applicant’s mother had overstated and exaggerated the claimed fear of harm to the applicant from his paternal grandparents, and that familial rejection of the family would not amount to persecution. In addition, the delegate found that state protection is available to the applicant if he returns to Lebanon. Therefore, the delegate was not satisfied that the applicant faces a real chance of persecution or a real risk of significant harm.
The review application
The applicant applied for a review of the delegate’s decision on 13 January 2017.
Prior to the hearing, the applicant’s newly appointed representative, [Mr D], submitted a statutory declaration by [Ms B], declared on 25 September 2020. In her statutory declaration, [Ms B] stated that that the practice of female genital circumcision or cutting (FGM/C) is illegal and not widely practiced in Lebanon, however, it remains ‘an extremely discreet’ practice amongst sections of the Sunni Muslim community who adhere to conservative Islamic traditions. She stated that her family, as well as her husband’s family, will demand that their daughters undergo FGM/C when they return to Lebanon, and that the Lebanese authorities will not provide protection as they are reluctant to intervene in religious matters. [Ms B] further stated that she wants to protect her sons from ‘religious and political radicalism’ which takes place at schools, religious functions, mosques and in the wider community in Lebanon. She claims that there have been hundreds of young men from the Akkar region, who have been ‘brainwashed and lost their lives in the Syrian and Iraqi conflict.’
[Mr D] also submitted the following documents to the Tribunal:
·Copy and translation of a letter, dated 22 September 2020, signed by [Mr E], Mukhtar (mayor) of [Village 1] in Akkar. The letter stated that female circumcision is considered ‘one of the worst and most dangerous practices’ and although it is rejected, ‘no one is able to prevent [the practice].’
·Copy and translation of a letter, dated 18 September 2020, signed by [Mr F], Mukhtar of [Village 2] in Akkar. The letter stated that although girls’ circumcision is an illegal and rejected custom, it is still being practiced, and parents are unable to prevent it.
The hearing
The applicant’s parents were initially invited to attend a hearing at the AAT on 11 March 2020. The hearing, however, was postponed due to a request by the applicant’s representative and subsequently due to the outbreak of COVID-19.
In accordance with the applicant’s parents’ wishes to attend an in-person hearing, they appeared before the Tribunal at the AAT premises in Sydney on 30 September 2020 to give evidence and present arguments on behalf of their son. They were assisted by an interpreter in the Arabic and English languages. The applicant’s representative also attended the hearing by telephone. Where relevant, the evidence provided to the Tribunal at the hearing is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal did not find [Ms B] and [Mr A] to be credible and truthful witnesses and has concluded that the decision under review should be affirmed.
[Ms B]
In a statutory declaration attached to the protection visa application form, [Ms B] stated that she and her husband are opposed to genital circumcision. She stated that both their families constantly pressure them to have their children circumcised and that she fears that the practice will be carried out on her children against her will, if they return to Lebanon. [Ms B] did not expressly state that the applicant was not circumcised. However, the references to all her children being at risk of forced circumcision, without any further information, and in view of the fact that the application was made on behalf of the applicant, reasonably implied that the applicant was not circumcised.
According to the psychologist’s report relating to [Ms B] submitted in support of the protection visa application, [Ms B] told the psychologist that she fears returning to Lebanon as it is part of her family’s tradition to circumcise both male and female children. She stated that if forced to return to Lebanon, the procedure will be carried out on all her children. In the report, the psychologist offered the opinion that [Ms B’s] statements and fears were well supported and genuine.
At the Departmental interview, [Ms B] was afforded the opportunity to clarify the applicant’s circumstances. Indeed, when she was expressly asked by the delegate to confirm whether the applicant is circumcised, [Ms B] stated that the applicant has not been circumcised as this would be against her convictions. In addition, in that interview, [Ms B] repeatedly stated that only her eldest son (the applicant’s brother) has been circumcised.
However, at the hearing, [Ms B] told the Tribunal that the applicant was circumcised one month after he was born in Australia. [Mr A] provided the same information at the hearing. When [Ms B’s] evidence to the Department was put to her, she said she was only talking about her daughters. When pressed in relation to her evidence at the interview, she explained that she was anxious and psychologically unwell at that time. The Tribunal does not accept these explanations to satisfactorily address the significant inconsistencies in [Ms B’s] evidence.
[Ms B’s] oral evidence to the delegate was also put to her in a s.424A letter. In response, [Ms B] provided a statutory declaration, in which she stated that during the interview with the delegate, she gave evidence that her ‘daughter was not circumcised as this would be against my conviction.’ She further stated that the ‘delegate may have misconstrued my oral evidence when I was giving evidence about my objection to my daughter being circumcised as opposed to my son being circumcised.’ She confirmed that neither her nor her husband have any objections to their son being circumcised and have ‘never’ claimed to hold such objections.
The Tribunal does not accept this explanation as credible. According to the audio recording of the Department’s interview, which the Tribunal has listened to, [Ms B] unequivocally confirmed that the applicant was not circumcised. The delegate then asked [Ms B] if any of her children have been circumcised. She said only her eldest son had been circumcised. She added that her eldest son was circumcised in Lebanon, but in Australia she did not circumcise ‘the young one’, because then ‘they would make’ her circumcise the girls. Circumcising all of her children would be against her wishes. She was then asked by the delegate what would happen to the applicant if he is not circumcised. [Ms B] replied that, if the applicant were to be circumcised, he would be upset emotionally and physically. When asked by the delegate why she could not say ‘no’ to having her son circumcised, she said she is opposed to the practice because it is ‘not good’ and it makes the body abnormal. When pressed by the delegate, she said her family are very strict and she has to do whatever they ask. She said she is very fearful for ‘all’ of her children, particularly the girls. [Ms B’s] evidence at the interview clearly suggests that there was no misunderstanding and that she had expressly claimed that the applicant was not circumcised and that she was opposed to him being circumcised.
[Ms B’s] evidence casts serious doubt on her credibility and the reliability of her claims. The Tribunal finds that [Ms B] had provided evidence to the Department which was misleading and untruthful. Her explanations to the Tribunal for offering this evidence further undermines her credibility. The Tribunal finds that [Ms B] had withheld information from the Department that the applicant had been circumcised and offered fabricated evidence in order to achieve a favourable immigration outcome.
[Mr A]
As already noted, in her statutory declaration attached to the protection visa application form, [Ms B] stated that both her and her husband come from an extremely conservative Sunni Muslim background. In her evidence to the Tribunal, [Ms B] stated that whilst her own parents are not too conservative, her in-laws are very conservative Muslims who will seek to enforce religious customs and traditions.
As also noted above, [Mr A] had applied for a protection visa on 27 February 2013. A delegate of the Minister refused the application and that decision was affirmed by the RRT.
In his written evidence to the Department, [Mr A] claimed that he joined the [Political party 1] after he left school in year 10 and he resigned from the party due to harassment and threats before he came to Australia and in order to show his rejection of crimes committed by the Syrian regime.
According to the RRT decision record, in his oral evidence to the Department [Mr A] claimed he joined [Political party 1] at 25 years of age and his oral evidence to the RRT, he claimed he joined the party at about age 20 and he later pretended that he no longer belonged to the [Political party 1] as a consequence of threats he had received. [Mr A] also submitted a statutory declaration, declared by a third party, to the RRT. It was stated in the statutory declaration that [Mr A] was a member of the [Political party 2][1] - in Akkar and continues to be a member of the local Australian branch of that Party. In his oral evidence to the RRT, [Mr A] stated that he is a member of the [Political party 2] in Australia. Furthermore, according to the RRT’s decision record, in his evidence to the RRT, [Mr A] claimed that he, his father, and three brothers were all members of the [Political party 1] in Lebanon.
[1] [Details deleted].
However, at the hearing held before the Tribunal in relation to the applicant’s review application, [Mr A] told the Tribunal that he joined [Political party 1] when he was 20 years old, but he left the party three years later at the age of 23. He stated that he had no further involvement in [Political party 1] or any other political party in Lebanon or Australia afterwards and denied any knowledge of the [Political party 2]. [Mr A] also told the Tribunal that only he and one of his brothers were members of [Political party 1]. He said his father was not a member of [Political party 1] and was opposed to his sons’ involvement with the party. [Mr A] told the Tribunal that his father is a strict Sunni Muslim and did not want his sons to be involved with Shi’a Muslims, Alawites and Christians.
At the Tribunal hearing, it was put to [Mr A] that [Political party 1] is a secular socialist party.[2] He was asked how his father, being a strict Sunni Muslim, had reacted to [Mr A]’s membership of [Political party 1]. He responded that his father was disapproving and believed that it was the wrong path. When it was put to him that he had remained a member of [Political party 1] despite his father’s disapproval, he said his father was very fanatic and he did not want him to be involved with other sects.
[2] See [details deleted].

The information provided by [Mr A] in connection with his own protection visa application was put to him at hearing. [Mr A] denied having told the RRT that his father and brothers were involved with [Political party 1] or the [Political party 2] and stated that perhaps he had misunderstood the interpreter at the RRT hearing and gave the wrong answer. The Tribunal prefers the RRT’s decision record in reflecting [Mr A]’s evidence in connection with his protection visa application and the subsequent review. The Tribunal does not accept [Mr A]’s explanations to be persuasive.
[Mr A]’s evidence in relation to his own protection visa application, including his evidence to Department and the RRT was put to him in s.424A letter. In a statutory declaration provided in response to the Tribunal’s letter, [Mr A] stated that he had ‘formally’ joined [Political party 1] in Akkar when he was about 20 years old. He ceased being a formal member at about the age of 23 due to his father's concerns for his personal safety, but he continued to support the party. In Australia, he did not formally join and was not formally involved with [Political party 1], but he continued to support them ‘for a number years’ following his arrival. Only he and his brother were ever formal members of the [Political party 1]. The rest of his family, including his father, supported the party. Whilst his father supported [Political party 1], he opposed any member of his family being ‘formal members’ of the party due to perceived threats to safety.
The Tribunal finds [Mr A]’s response and explanations to be highly unpersuasive. The Tribunal is unable to reconcile the significant inconsistencies in his evidence in relation to his and his family members’ association with [Political party 1] and/or the [Political party 2]. This is particularly relevant in relation to [Mr A]’s father. In his evidence before the Tribunal, [Mr A] sought to portray his father as a strict Sunni Muslim who will enforce traditional and religious practices, including female circumcision. Whilst in his response to the Tribunal’s s.424A letter he stated that his father was a supporter of [Political party 1], he did not provide an explanation as to why his strict Sunni Muslim father also supported a secular socialist [party]. The Tribunal finds [Mr A] not to be a truthful and credible witness. The Tribunal does not accept the claims he has made on behalf of the applicant. More specifically, the Tribunal does not accept his claims and evidence regarding his father and other family members, including their history, profiles, beliefs, convictions and traditions. The Tribunal does not accept that [Mr A] and [Ms B]’s families are extremely conservative Sunni Muslims or that they adhere to 'extremely stringent religious traditions.’
For all the above reasons, the Tribunal finds [Ms B] and [Mr A] not to be credible, truthful and reliable witnesses. Their evidence shows a propensity to tailor evidence in a manner which achieves their own purpose.
As the applicant has already been circumcised, the Tribunal does not accept that there is a real chance or a real risk that he will be subjected to the circumcision in Lebanon. At the hearing, in light of [Ms B’s] evidence that her son was circumcised, she was asked why she was fearful for the applicant. She responded that she was fearful for her daughters. She said if they return to Lebanon, the family would continue to put pressure on her and her husband to circumcise the applicant’s sisters. If she were to express objections, then something might happen to her and as a consequence the applicant may suffer. As it was put to [Ms B] at the hearing, it would be highly speculative to assume that all of these events are likely to occur. In any event, for the following reasons, the Tribunal does not accept that the applicant’s sisters are at risk of being subjected to female genital circumcision in Lebanon.
The Tribunal has found [Ms B] and [Mr A] not to be credible and truthful witnesses. The Tribunal has rejected the claim that [Ms B’s] parents and her in-laws, particularly her father-in-law, are strict Sunni Muslims. Further, as it was noted at the hearing, the Tribunal has found no information in any of the sources consulted to suggest that female genital circumcision/cutting is practiced in Lebanon.[3] Indeed, sources consulted concur that female genital circumcision/cutting is not traditionally practiced in Lebanon.[4] The Tribunal does not accept [Ms B’s] response that it’s an extremely discreet’ practice amongst sections of the Sunni Muslim community. The Tribunal is of the view that it would be reasonable to expect some level of reporting in relation to the practice over the years regardless of the claimed clandestine nature of it.
[3] Sources consulted include CISNET, UNHCR Refworld, The European Country of Origin Information Network (ECOI), US Department of State, NGO and human rights organisations, local news sources and major international newspapers.
[4] See 'Social Institutions & Gender Index 2019 - Lebanon', Organisation for Economic Co-operation and Development (OECD), 01 December 2018, 20190228115041; 'ALEF Annual Report 2018: The Situation of Human Rights in Lebanon', ALEF (Act for Human Rights), 01 April 2019, p.63, 20190927130940; 'Lebanon: Gender Justice & The Law', United Nations Development Program (UNDP), 2018, p.15, 20190925171310.
The Tribunal has considered the purported letters from mayors of [Village 1] and [Village 2]. However, having regard to the fundamental lack of credibility in the evidence of the applicant’s parents, the Tribunal is not prepared to give any weight to these documents. In reaching this view, the Tribunal has taken into account information from DFAT, indicating that ‘letters from local mayors are not normally regarded as a reliable source of information.’[5]
[5] DFAT, DFAT Country Information Report Lebanon, 25 February 2014, p 25.
The Tribunal does not accept that the applicant’s sisters will be at risk of facing female genital circumcision/cutting by members of their extended family, members of the community or anyone else if they were to return to Lebanon. The Tribunal, therefore, does not accept any of the claims made by [Ms B] and [Mr A] in relation to the applicant being at risk of harm due to family members in Lebanon carrying out any act of circumcision, including in relation to the applicant’s sisters.
In her statutory declaration of 25 September 2020, [Ms B] had also claimed that she wants to protect her sons from ‘religious and political’ radicalisation, which takes place at schools, religious functions, mosques and in the wider community in Lebanon. She stated that there have been hundreds of young men from the Akkar region, who have been ‘brainwashed and lost their lives in the Syrian and Iraqi conflict.’
At the hearing, [Ms B] stated that the ‘sectarian situation’ is deteriorating in Lebanon and there are groups who try to brainwash and radicalise young people. They teach the younger generation to follow certain groups and parties and to disobey laws. They send them to Syria and Iraq to fight and teach them to hate. She does not want her sons to face this risk. [Mr A] also told the Tribunal that he did not want his son to be brainwashed or to become a fanatic or a terrorist.
The applicant is merely [age] years old. If his family were to return to Lebanon, where they would ultimately choose to settle, where he would attend school, with whom he might associate, towards what ideas he might gravitate, how he might behave and what consequences he might face are all matters of pure speculation in the not so foreseeable future. The Tribunal does not accept that there is a real chance or a real risk that the applicant will face serious or significant harm in the manner described by his parents if he were to return to Lebanon in the reasonably foreseeable future or as a necessary and foreseeable consequence of being removed to Lebanon.
The Tribunal has also considered [Ms B’s] broad references to sectarian tensions and any implied concerns harboured on behalf of the applicant by his parents with respect to general violence or lack of security in Lebanon. However, there is no persuasive information before the Tribunal to suggest that the tensions and lack of general security giving rise to these concerns are faced by the applicant personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution.
Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that sectarian tensions and lack of general security referred to are faced by the population generally and not by the applicant personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of sectarian or political tensions or lack of general security.
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that he will face serious harm in Lebanon for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shahyar Roushan
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5362

17 December 2020

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Immigration

Administrative Law

Statutory Interpretation

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Appeal