1709349 (Refugee)

1709349 (Refugee) [2021] AATA 3166 (28 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709349
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Denise Connolly
DATE:28 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 May 2021 at 12:30PM
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion – Jehovah’s Witness – proselytising – modification to practice and self-imposed restrictions – proselytising female Jehovah’s Witness – verbal abuse, threats and intimidation – emotional abuse and bullying – sexual assault – not physically harmed or sexually assaulted in the past – low levels of societal discrimination and harassment – official discrimination – travels to Refugee Convention signatory countries and voluntary returns to Lebanon – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 20 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Lebanon, applied for the visa on 5 December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background to the review
When making her visa application the applicant made the following claims. She was born in [location], Lebanon on [date]. Her religion is Jehovah’s Witness. She travelled to Australia, with her parents (who have also applied for protection), [in] November 2016 as the holder of a visitor visa. Previously she travelled for holidays to [Country 1] and [Country 2] in 2014, [Country 3] in 2015, [Country 4] in August 2016 and [Country 5] in September 2016.
The applicant provided a statutory declaration with her application in which she made the following claims. She is single. She was born into the Jehovah’s Witness faith and was baptised in February 2011. She was a university student before she came to Australia. She fears returning to Lebanon because of her Jehovah’s Witness faith. She and her parents were members of [Congregation 1] where she had been a member since birth. They did not have a formal place of worship but secretly met in members’ homes. They also met in underground basements. She was subjected to numerous incidents of verbal abuse, threats, intimidation and violence because of her religion. In August 2015 she and a Jehovah’s Witness brother were attacked while preaching in Beirut. He was physically assaulted and she was threatened with violence. In another incident while preaching with a sister they were threatened by a man who claimed to be a Daesh member. They escaped without being harmed. She was subjected to abuse at school and university. She was threatened with sexual assault by male students. In another incident, while preaching, dogs were set upon her and her Jehovah’s Witness brother. They escaped the attack. Despite reporting this incident and other abuse to the administration, nothing was done and it was suggested she convert to another religion. While preaching she was threatened with sexual assault. Given those threats she was forced to limit her preaching activities and preach only with a male.
The applicant has claimed that Jehovah’s Witnesses are not officially recognised and effectively denied protection from the Lebanese authorities. Their preaching activities are viewed by the authorities as troublemaking and the Congregational meetings are interrupted by police following complaints from neighbours or mainstream religions. Given the hostile attitude of the authorities towards Jehovah’s Witnesses, they cannot rely on effective protection when they are threatened and are vulnerable to attacks. They are forced to apply significant self-imposed restrictions on their practice. They limit their religious activities such as door-to-door preaching, attendance at Congregational meetings and distributing religious material. They also proselytise in a highly selective manner, only to those they know will not be hostile towards them. They refrain from preaching in areas where there are Muslims. This is necessary in the absence of effective police protection. Given the level of self-imposed restrictions, effective adherence to her faith is not tenable.
The applicant has claimed female Jehovah’s Witnesses are more vulnerable than their brothers because they are not able to physically defend themselves when the need arises and they constantly worry about sexual assault.
Evidence to the Tribunal
The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate recorded that the applicant was interviewed on 30 January 2017. Relevant oral evidence is set out in the decision record. The delegate also referred to country information.
The delegate noted the country information records that there are 57 Jehovah’s Witness congregations in Lebanon and, as at 2017, 3,684 active members.[1] He noted Lebanon does not recognise the Jehovah’s Witness religion, which means members lack access to some public institutions, and cannot perform recognised marriages or divorce proceedings. The Department of Foreign Affairs and Trade (DFAT) also considers unrecognised religious groups experience low levels of official and societal discrimination but reported there is no official or societal violence against Jehovah’s Witnesses.[2] The delegate noted the available information about the reception to Jehovah’s Witnesses proselytising in Lebanon is mixed. In 2008 it was reported that it was prohibited to distribute material on the first visit; however if invited back or printed material was requested, Jehovah’s Witnesses could distribute it at a later time.[3] That 2008 article recorded that one member claimed he had been beaten and assaulted while proselytising, but abuse was not the standard reaction encountered by Jehovah’s Witnesses.
[1] 2017 Yearbook of Jehovah's Witnesses, Jehovah's Witnesses Governing Body, September 2016, pp 182-183
[2] DFAT Country Information Report Lebanon, 18 December 2015, p 13
[3] “Faith comes knocking”, Now Lebanon, 16 November 2008
The delegate recorded that in 2010 the LA Times reported that Kingdom Halls appeared to be tolerated but Jehovah’s Witnesses felt vilified by Maronite Christians who call them Jews. That report indicated there are no legal barriers to proselytising but traditional attitudes discourage such activity.[4]
[4] “In Muslim Middle East, Jehovah's Witnesses congregate in secret”, Los Angeles Times, 17 April 2010
The delegate noted in 2015 the Special Rapporteur on freedom of religion conducted a mission in Lebanon and reported Jehovah’s Witnesses feel exposed to stereotyping and discrimination but voiced clear appreciation for the fact that they can live in Lebanon in safety and in accordance with their religious convictions. The Special Rapporteur also noted that, while Jehovah’s Witnesses mostly enjoy freedom to confess and practise their beliefs, they face problems when attempting to build an infrastructure.[5]
[5] Report of the Special Rapporteur on freedom of religion or belief on his mission to Lebanon, UN Human Rights Council, 30 November 2015, p 8
The delegate noted that the US Department of State reported that proselytising is not restricted by law in Lebanon.[6] The delegate also noted Freedom House reported in 2016 that proselytising is not punishable by law in Lebanon but is strongly discouraged, sometimes with the threat of violence.[7] He also noted the DFAT 2014 report recorded that there are no legal barriers to proselytising.[8] In 2015 DFAT reported that minority religions, including Jehovah’s Witnesses, are generally able to proselytise without attracting official or societal discrimination or violence.[9] In 2014 DFAT reported that Jehovah’s Witnesses can proselytise in practice, as long as they do so in a relatively low-key manner. He quoted “DFAT understands that there is generally more social resistance to conversion to religions that include elements of active proselytising, but that this would not normally amount to violence”.[10]
[6] International Religious Freedom Report for 2015 Lebanon, US Department of State, 10 August 2016, Sec 2
[7] Freedom in the World 2016 - Lebanon, Freedom House, 14 July 2016
[8] DFAT Country Report Lebanon, 1 February 2014, p 14
[9] DFAT Country Information Report Lebanon, 18 December 2015, p 13
[10] DFAT Country Report Lebanon, 1 February 2014, p 14
The delegate noted, having conducted various searches of Lebanese and international news media, major human rights reports, major foreign government reports, think tanks, peer reviewed journals, Departmental resources and general internet searches, no information was found about whether the police provide protection to proselytising Jehovah’s Witnesses.
The delegate accepted that Jehovah’s Witnesses may not perform legally recognised marriages or divorce proceedings in Lebanon, have no standing to determine inheritance issues and may not qualify for certain government positions. He accepted the religion was not registered. However he found no country information about the claim that the police do not provide protection to proselytising Jehovah’s Witnesses. He formed the view that, while the country information indicates there are restrictions placed on Jehovah’s Witnesses, members of the faith are able to conduct, worship and follow their beliefs in Lebanon without being subjected to serious harm.
The delegate accepted that the applicant had been attending the same Kingdom Hall for several years and, while it had been closed for two or three months on two occasions following disputes with neighbours, members were able to meet at another location during the temporary closures. He formed the view the limitations on the applicant’s religious practice were not serious harm. He accepted that she may have been subjected to mockery or threatened while studying and proselytising but he was not satisfied that this amounted to serious harm. He found that, while the applicant may have witnessed a brother being punched, this was a random and isolated attack and would not be repeated. Having considered the country information and the applicant’s experiences in Lebanon, he was not satisfied there was a real chance she would be subjected to serious or significant harm if she continued to proselytise in the same low-key manner she adopted in the past. He acknowledged that proselytising is an important part of the religion and considered whether the self-imposed limitations on proselytising amounted to serious harm. He noted the country information indicated that Jehovah’s Witnesses are required to proselytise in a relatively low-key manner in order to avoid more serious forms of harm including physical violence. He accepted that the applicant was forced to avoid proselytising in certain parts of Beirut. He accepted that she was unable to proselytise openly in public and may have to be careful about how she approaches potential converts. However, while accepting the applicant may be required to modify her behaviour to avoid the risk of violence, he was of the opinion that these limitations on proselytising fall short of serious harm. He noted the applicant was able to proselytise to so many people that it would be difficult to estimate the number with whom she had shared the faith, indicating she has been able to be careful in targeting potential converts and still able to perform this core tenet of her faith. He was not satisfied there is a real chance of serious or significant harm in Lebanon in the reasonably foreseeable feature for reasons of her Jehovah’s Witness faith.
After making her review application the applicant’s representative provided a submission which included supporting letters from [Congregation 2] and two other witnesses, [Ms A] and [Mr B], who is based in Lebanon. It was submitted that the applicant fears that she cannot rely on the Lebanese authorities for protection when confronted with hostility, compounded by the fact the Lebanese authorities arrest Jehovah’s Witnesses or shutdown their places of worship on charges of causing sectarian unrest/tension. As preaching is a core tenet of her faith, undertaking these activities in a discerning manner renders practise of her faith untenable. The Constitution provides for freedom of religion but the Jehovah’s Witness faith is not legally recognised as an official religion and therefore does not enjoy legal rights or status. It was also submitted that, as the religion is not officially recognised, the applicant will suffer systemic and discriminatory harm and a significant threat to her liberty. Jehovah’s Witnesses in Lebanon are forced to impose upon themselves restrictions in the manner they practise their faith in order to counter threats from individuals and the authorities. The representative provided the case numbers for other Tribunal decisions regarding Jehovah’s Witnesses in Lebanon, which were remitted.
Hearing on 3 March 2021
The applicant, currently aged [age], appeared before the Tribunal on 3 March 2021 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Arabic languages, however the applicant indicated that she would be able to give evidence in English. Occasionally she requested that the Tribunal’s questions/her evidence be interpreted. The Tribunal is satisfied the applicant was, in the main, able to express herself in English and, when she was not able to do this, used the interpreter effectively. It is satisfied that she engaged meaningfully in the hearing.
The applicant told the Tribunal that she has always lived with her parents, who had their own review applications for protection visa applications, made on the basis of similar claims. She completed a qualification in Lebanon, a diploma which allowed her to [work in specified field]. However she did not have employment prior to coming to Australia.
The Tribunal asked the applicant about her religious practice here and in Lebanon. She indicated that she was born into the faith and understood from about five that she was a Jehovah’s Witness. She attended meetings at Kingdom Hall as a child, from about [age], and started proselytising around that age but always did this with someone else. Before she turned [age] she always went out with her parents. She attended meetings in Lebanon with her parents, once or twice a week. They always met in secret from the government, the community and neighbours. She proselytised in areas where she could preach to people she knew. She was baptised when she felt ready, [as a teenager]. The Tribunal asked why she proselytised before she was baptised. She indicated that when she felt she had matured and could follow the principles she chose to be baptised as a Jehovah’s Witness.
The Tribunal asked the applicant what her faith expects of her in terms of proselytising. She indicated that the Bible in Matthew states that she needs to go out and preach to people. The Tribunal asked about her proselytising practice in Lebanon. She indicated she went out and preached but did so with fear. If she returns to Lebanon, she will not focus on the fear, but she will be scared. She will also attend meetings but fears she will be harmed. She was always fearful of harm when practising her religion in Lebanon. She suffered emotional abuse at school and university. She wanted to go to a Christian school in Lebanon but was not accepted. She suffered anxiety and depression while studying. The Tribunal asked if she ever sought treatment for those conditions. She indicated that she saw a doctor once who gave her a low dose of a mild medication to assist her to sleep. She does not have any medical evidence because she has been fine since she has been in Australia, where she is respected and not fearful. She is only distressed when she talks about her experience.
The Tribunal indicated that, while it may accept she suffered some abuse at school and university, she has completed her education and so it might find she will not suffer this harm in the future. She indicated that she will be abused at work. The Tribunal asked how she knows this would happen, given she was not employed in Lebanon. She said it was because of the mentality of the people in Lebanon where she had been bullied and ridiculed and feared sexual assault. She confirmed that she had never been sexually assaulted in Lebanon, although she indicated a student once followed her and threatened to assault her while she was preaching. She confirmed that she had never been physically harmed while preaching in Lebanon but felt she had been emotionally harmed.
The Tribunal noted that the applicant had told the delegate about an incident where a Jehovah’s Witness brother was punched. It asked what happened on that occasion. She indicated that the man attempted to protect her and then she ran away.
The Tribunal asked if the applicant had ever sought protection from the authorities in Lebanon. She confirmed that she had never approached the police. It asked why she had not done this if on occasions she feared serious harm. She indicated they would not have protected her as other Jehovah’s Witnesses had gone to the police and did not receive help. She stated Jehovah’s Witnesses are not allowed to practise their religion in Lebanon.
The Tribunal noted that the applicant visited [Country 1], [Country 2] and [Country 5] for holidays, returned to Lebanon voluntarily and did not seek protection in those countries. It raised its concern that this might suggest she was not fearful when she returned to Lebanon. She confirmed that she travelled to those countries with her parents and they discussed as a family whether they would seek refuge. However they were not aware that they could do so in those countries. She indicated that she always intended to stay with her parents and so would not have applied by herself; it would always be a family decision.
The Tribunal raised with the applicant country information, including that set out by the delegate. It noted that DFAT[11] had reported that the Lebanese Constitution supports freedom of conscience and respect for all religions provided public order is maintained. The country information also indicates that unregistered religions are able to assemble and practise. It noted that in 2014 Minority Rights Group International conducted interviews and research on the experiences of religious minorities in Lebanon, in which no Jehovah’s Witness respondents mentioned specific attacks or incidents of physical violence[12] and that there were no recent reports of serious harm suffered by Jehovah’s Witnesses because of their religion. It discussed with the applicant the Special Rapporteur’s findings. The applicant agreed that the religion is not banned in Lebanon. However the authorities do not recognise the religion. She disputed that Jehovah’s Witnesses are able to perform their religious rites freely. She believes she should not have been bullied at school. She referred to their Kingdom Hall being shut in 2009. She stated they had not had difficulties with the Kingdom Hall since because Jehovah’s Witnesses limit themselves. The Tribunal asked about how she limits her practice. She indicated she limits her preaching which is against her religion.
[11] DFAT Country Information Report Lebanon, 19 March 2019, 3.9 - 3.26.
[12] El Rajji, R., ‘The leaves of one tree: Religious minorities in Lebanon’, Minority Rights Group International, December 2014,

The Tribunal noted that the country information indicates, at most, Jehovah’s Witnesses suffer some societal discrimination and some harassment. It explained that it may not be satisfied that this amounts to serious harm. The applicant indicated that from 13 to 22 she was subjected to threats of violence however she always managed to run away. She acknowledged she was not harmed physically but claimed she had been harmed emotionally. She indicated that other Jehovah’s Witnesses have been physically harmed. Because she limits her practice, she is not able to preach in the way she should.
The Tribunal asked the applicant about her practice in Australia. She indicated that, before she started working, she used to proselytise in the morning by erecting the stand with material. She now does this on weekends and before work at [Suburb 1] and [Suburb 2] railway stations, the shops and the hospital. If she encounters a Muslim when doorknocking she still preaches but there is some modification applied because she respects their religion. She never went into a Muslim area in Lebanon. The difference here is she knows the authorities will protect her if anything was to happen. The Tribunal noted there were no reports of the authorities not protecting Jehovah’s Witnesses when practising their religion in Lebanon.
The Tribunal referred to the witnesses’ claims that the Jehovah’s Witness religion is legally forbidden and that military and guerrillas storm meetings but the police will not help. It explained that these claims are not consistent with the country information and the Tribunal may not accept them. The applicant indicated that this was the witnesses’ experience and it is not reported in the media.
The Tribunal asked the applicant if she had any other evidence to give, or claims to make, before the hearing was closed. The applicant stated that she fears going to Lebanon as, for her, it is like saying “go there and die”. She cannot practise her religion without fear. She protected herself by running away. She was subjected to emotional abuse when studying.
During the hearing the applicant’s representative, who was participating by conference telephone, indicated a few times that she could not hear. On one occasion she interrupted while the interpreter was interpreting because she could not hear. The representative confirmed that she did not need the information provided at the hearing to be interpreted. The Tribunal asked the representative to not interrupt during the hearing but gave her an opportunity to obtain a copy of the hearing recording and make any submissions she wished to make after listening to the recording. It agreed not to make its decision before close of business 5 March 2021 to enable her to listen to the recording and make any further submissions. However no submissions were provided.
Country information
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has considered all other country information referred to by the delegate and the information discussed with the applicant at the hearing.
DFAT reports that:
Article 9 of the Constitution states that there shall be absolute freedom of conscience and respect for all religions and creeds. It guarantees that the state shall protect the free exercise of all religious rites provided that public order is not disturbed, and that the personal status and religious interests of all religious sects shall be respected.
The state officially recognises 18 religious confessions. These include four Muslim groups (Shi’a, Sunni, Alawites, and Ismaili’s); 12 Christian groups (Maronites, Greek Orthodox, Greek Catholics, Armenian Orthodox, Armenian Catholics, Syriac Orthodox, Syriac Catholics, Nestorian Assyrians, Chaldeans, Copts, Latin [Roman] Catholics, and Evangelicals); Jews; and Druze, a religion that combines traditional Islamic teachings with certain philosophical ideas and mystic practices. Under the political power-sharing arrangements, the government includes Druze in the Muslim group. Unrecognised groups include Baha’is, Buddhists, Hindus and several other Protestant groups, including Jehovah’s Witnesses and Mormons. Human rights groups report that unrecognised religious groups can legally own property,and are able to assemble for worship and perform their religious rites freely. Because Lebanon has not conducted a census since 1932, no current official statistics are available on the country’s religious communities. Unofficial estimates of the size of the communities vary, but interlocutors agree that the combined Muslim communities now outnumber the combined Christian communities….
With the exception of Beirut, most cities do not contain communities from all major religions. Different religious groups tend to be concentrated in particular areas…
Unlike in most other Arab countries, Lebanese are able to change their religious affiliation legally, converting not only from Christianity to Islam, but also from Islam to Christianity. Conversions also take place between different Christian denominations and (more rarely) between followers of different branches of Islam. To convert to a different religion, a local senior official of the religious group the person wishes to join must approve the change, and the newly joined religious group must issue a document confirming the convert’s new religion. The convert can then register their new religion with MoIM’s Personal Status Directorate. The new religion is included thereafter on government-issued civil registration documents, along with mention of the original religion.
…
Human rights observers report that relationships between religious groups in Lebanon are generally peaceful, particularly by regional and historical standards. In his November 2015 report, the UN Special Rapporteur on freedom of religion or belief noted that the situation between religious groups was largely amicable; that people generally practised their religion freely; and there was no religious persecution in the country. He further noted that Lebanon had successfully kept society united across religious boundaries, built resilience in the face of religious extremism, and that Lebanese of all religious backgrounds were committed to defending the diversity of the country’s religions and beliefs. Interreligious dialogue between religious leaders and communities occurs. Religious leaders have regularly condemned extremism and violence perpetrated in the name of religion following terrorist attacks in the region against religious targets. Violent clashes with religious overtones have been less common in Lebanon in recent years. Where violence has occurred between communal groups (such as between Alawites and Sunnis in Tripoli), it has generally been low-level and localised in nature (see Security Situation). Lebanese religious leaders and state authorities are sensitive to the potential impact of communal violence on national security, including the possibility that external conflicts with sectarian dimensions (particularly the Syria conflict) could impact on the coexistence of religious communities in Lebanon. The Criminal Code contains a number of provisions prohibiting calls to strife and sedition on religious grounds, including Articles 295, 308, 310, 313, 317, and 318. DFAT assesses that Lebanese authorities are committed to preventing violence between religious communities. DFAT assesses that members of recognised religious groups do not face any official discrimination on the basis of religion. Members of recognised religious groups who are in the minority in particular geographic areas may face low-level societal discrimination, which may include being precluded from access to employment or housing but is unlikely to include violence. This assessment also applies to members of unrecognised religious groups. Official discrimination against this group is discussed in the following section.
…
While all of the 18 officially recognised religious denominations are empowered to apply their own laws and maintain their own judicial systems in relation to personal status matters, not all do: international observers report that Lebanon has 15 separate personal status law codes. There is limited government oversight over religious courts. Unrecognised religious groups cannot perform legally recognised marriage or divorce proceedings, and do not have standing to determine inheritance issues. They can, however, legally own property. Human rights observers have reported that some members of unregistered religious groups, including Baha’i and unrecognised Protestant denominations, list themselves as belonging to recognised religious groups in government records in order to ensure their marriage and other personal status documents remain valid.
…
DFAT assesses that the absence of civil law options for personal status matters, without the extreme step of removing a sect from an ID card, represents a moderate level of discrimination against members of unrecognised religious groups and non-religious individuals in that they are unable to access or register marriage, divorce, or inheritance services available to other Lebanese without misrepresenting their religious faith (or lack thereof). DFAT assesses that the absence of civil law options for personal status matters has a particularly negative impact on women from all confessional backgrounds, which represents a moderate level of discrimination against them.[13]
[13] DFAT Country Information Report Lebanon, 19 March 2019, 3.9 - 3.26.
The Tribunal notes the delegate was unable to find any information about whether the police provide protection to proselytising Jehovah’s Witnesses. It too was unable to find recent reports of security forces either targeting or not providing protection for Jehovah’s Witnesses in Lebanon. It found no recent reports of incidents of serious or significant harm involving Jehovah’s Witnesses in Lebanon. They are not mentioned in the latest US Department of State International Religious Freedom report, or in annual human rights reports.
The Tribunal notes the European Association of Jehovah’s Witnesses claims that Jehovah’s Witnesses in Lebanon meet covertly in private homes to study the Bible in small groups, and have limited access to their religious texts but have expressed their gratitude for the generally reasonable treatment shown by the authorities, who tolerate their meetings and allow them to gather peacefully. However they seek the full enjoyment of their rights in a non-discriminatory way.[14]
[14] Contribution for the 37th Session of the UPR (2–13 November 2020) - Lebanon', European Association of Jehovah's Witnesses, 19 March 2020
In 2014, Minority Rights Group International conducted interviews and research on the experiences of religious minorities in Lebanon, in which no respondents mentioned specific attacks or incidents of physical violence. The Jehovah’s Witness respondents however discussed issues of social exclusion and social and religious prejudice.[15]
[15] El Rajji, R., ‘The leaves of one tree: Religious minorities in Lebanon’, Minority Rights Group International, December 2014,
A Country Visit to Lebanon was conducted by the Special Rapporteur on freedom of religion or belief of the United Nations Human Rights Commissioner, including Jehovah’s Witnesses. It was reported that, although voicing certain issues of stereotyping and discrimination, Jehovah’s Witnesses at the same time declared their appreciation that they can live in Lebanon in safety and in accordance with their religious convictions, that they by and large were able to enjoy freedom to practise their beliefs but may face problems building infrastructure.[16] The Special Rapporteur concluded by observing that:
In Lebanon, people are free to confess and practise various religions and beliefs in the way they see fit. Conversion in different directions is possible and indeed a reality – in stark contrast to most other Middle Eastern countries. People can also bear testimony to their faith and engage in missionary or “dawa” activities. Religious diversity is a visible and audible reality, as Churches and Mosques often stand in close vicinity and the ringing of bells at times blends with the Muslim prayer call. Some Lebanese openly declare themselves as agnostics or atheists and express critical views on religion in general, which is mostly appreciated as something quite natural in an open society.[17]
[16] OHCHR, Preliminary findings of Country Visit to Lebanon by the Special Rapporteur on freedom of religion or belief, 2 April 2015,
[17] OHCHR, Preliminary findings of Country Visit to Lebanon by the Special Rapporteur on freedom of religion or belief, 2 April 2015,
CRITERIA FOR A PROTECTION VISA
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–5LA, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant presented to the Tribunal her passport, confirming she is a citizen of the Republic of Lebanon. There is no evidence before the Tribunal to indicate she has a right to reside in any other country. The Tribunal therefore accepts that the applicant is a national of Lebanon and assesses her claims against Lebanon as the receiving country.
The applicant’s claims
On the basis of the supporting statement from [Congregation 2] of Jehovah’s Witnesses, attesting to her involvement in the Congregation in Australia, and her oral evidence to the delegate and at the hearing, the Tribunal accepts the applicant is a practising Jehovah’s Witness and that she practised her religion in Lebanon before coming to Australia. The Tribunal also accepts she will continue to practise the religion if she returns to Lebanon in the foreseeable future.
In her written application the applicant has claimed that she suffered numerous incidents of verbal abuse, threats, intimidation and violence on account of being a Jehovah’s Witness. She also claimed to fear being sexually assaulted if she returns to Lebanon and practises her faith. While she repeated the claims about verbal abuse, threats, including threats of sexual assault, and intimidation, she told the Tribunal that she was never personally physically harmed or sexually assaulted. When the Tribunal raised with the applicant the country information indicating, at most, Jehovah’s Witnesses suffer some societal discrimination and some harassment, she claimed that from [age range] she was subjected to threats of violence however she always managed to run away. She acknowledged she was not harmed physically but claimed she was harmed emotionally. She indicated that other Jehovah’s Witnesses have been physically harmed. She indicated Jehovah’s Witnesses’ preaching activities are viewed by the authorities as being troublemaking.
The Tribunal notes the Special Rapporteur, who in its view has no reason to withhold information about harm experienced by minority religions, reported that Jehovah’s Witnesses expressed clear appreciation for the fact that they can live in Lebanon in safety and in accordance with their religious convictions. The Special Rapporteur also noted that Jehovah’s Witnesses mostly enjoy freedom to confess and practise their beliefs. The Tribunal also notes the European Association of Jehovah’s Witnesses expressed their gratitude for the generally reasonable treatment shown to Jehovah’s Witnesses by the authorities, who tolerate their meetings and allow them to gather peacefully. The Tribunal was unable to find any recent reports of serious harm suffered by Jehovah’s Witnesses in Lebanon. Having regard to DFAT’s report, the European Association of Jehovah’s Witnesses and the findings of the Special Rapporteur, the Tribunal is not satisfied Jehovah’s Witnesses in Lebanon face, on a regular basis, abuse, threats, intimidation and violence as claimed by the applicant. It accepts that Jehovah’s Witnesses deal with some social exclusion and social and religious prejudice and the applicant may have faced this and may have to deal with this if she returns to Lebanon and practises her religion in the foreseeable future. However, it does not accept the authorities view Jehovah’s Witness activities as being troublemaking. On the basis of the country information, it is not satisfied that any discrimination that may be experienced by the applicant, if she returns to Lebanon and practises her faith, will amount to serious harm. While it accepts the discrimination may have some emotional impact on the applicant, it is not satisfied this will amount to serious harm.
The applicant has claimed that she was emotionally abused and bullied at school and university, and she was not accepted into a Christian school, because she is a Jehovah’s Witness. In her written claims she stated that she was threatened with sexual assault by male students. When asked about sexual assault at the hearing the applicant confirmed that she had never been sexually assaulted in Lebanon, although she indicated a student once followed her and threatened to assault her when she was preaching. The Tribunal notes the applicant was able to complete secondary and tertiary education which qualified her to [work in specified field] so it is satisfied that she was able to attend school and university and study to achieve her qualifications. The Tribunal is of the view her oral evidence, that she was threatened once by a student, indicates her written claims, that she was threatened with sexual assault by male students, are embellished. However it notes and accepts she felt depressed and anxious, for which her doctor prescribed a low dose of mild medication to help her sleep. It accepts this condition may have been associated with treatment by other students as the country information indicates that Jehovah’s Witnesses in Lebanon suffer low levels of societal discrimination. It accepts that, while the applicant was studying, this may have manifested as name calling and bullying at school and university. It notes however that the applicant has completed her study and she did not indicate she intends to return to study if she returns to Lebanon. Accordingly it is not satisfied the applicant will face discrimination of this nature in this context if she returns to Lebanon in the foreseeable future.

The applicant has claimed that she fears she will be abused and harassed at work if she returns to Lebanon. She told the Tribunal she had not worked in Lebanon before coming to Australia so she has not suffered harm of this nature in this context in the past. The Tribunal notes the country information records that members of unrecognised religious groups in particular geographic areas may face low-level societal discrimination, which may include being precluded from access to employment, however it does not state this is the case in Beirut, where the applicant lived all her life with her parents. The applicant has not claimed that she will not be able to secure employment; rather, she fears she will be abused and harassed. DFAT reports that in his November 2015 report, the UN Special Rapporteur on freedom of religion or belief noted that the situation between religious groups was largely amicable; that people generally practised their religion freely; and there was no religious persecution in the country. DFAT also reports low levels of societal discrimination, stereotyping and discrimination of minority religions. However none of the reports state that Jehovah’s Witnesses are abused, harassed and/or bullied in the workplace. The Tribunal accepts there may be some discrimination and stereotyping in the workplace, as there is low-level societal discrimination of Jehovah’s Witnesses in Lebanon. However, having considered the country information, while the Tribunal accepts the applicant may fear this will happen if she returns to Lebanon and secures employment in the foreseeable future, it is not satisfied there is a real chance the applicant will suffer serious harm in the workplace because she is a Jehovah’s Witness.
The applicant has claimed she has been forced to apply significant self-imposed restrictions on her practice and limit religious activities such as door-to-door preaching, attendance at Congregational meetings and distributing religious material. She claimed she proselytised in a highly selective manner, only to those she knew would not be hostile and she refrained from preaching in areas where there are Muslims. She is of the view the self-imposed restrictions rendered effective adherence to her faith untenable. The Tribunal notes that DFAT reported in 2014 that Jehovah’s Witnesses can proselytise, as long as they do so in a relatively low-key manner. While the country information indicates Jehovah’s Witnesses can proselytise in Lebanon, the Tribunal accepts there may be certain buildings and streets in Beirut that Jehovah’s Witnesses may be reluctant to approach so as to avoid conflict and hostility. It does not accept that this impacts on the applicant’s ability to proselytise in a manner consistent with the tenets of the Jehovah’s Witness religion. The delegate recorded in the decision record, provided to the Tribunal by the applicant, that she said she had proselytised to so many people in Lebanon it would be difficult to estimate the number with whom she had shared the faith. She told the Tribunal that, even in Australia, there is some modification applied when preaching to Muslims because she respects their religion. The Tribunal accepts that Jehovah’s Witnesses make adjustments to accommodate other faiths. It accepts there are limits on the distribution of Jehovah’s Witness material. However it is satisfied the applicant was able to practise the tenets of her religion in Lebanon, including proselytising, and that any modification she made did not require her to alter her beliefs or cease to be involved in the practice of her faith. It is not satisfied those modifications amount to serious harm.
The Tribunal has considered the applicant’s statements from [Ms A] and [Mr B] who made claims about harassment of Jehovah’s Witnesses in Lebanon. [Ms A] claimed Jehovah’s Witnesses have their homes damaged. There is no recent country information indicating this happens to Jehovah’s Witnesses in Lebanon. The applicant has not made claims that this has happened to her. The Tribunal is not satisfied there is a real chance this will happen to the applicant if she returns to Lebanon. [Mr B] claimed, in the past, militias and guerrillas swarmed meetings, and took men to mistreat them and force them to denounce their faith. He claimed that “such events rarely happen nowadays”. The Tribunal notes there are no country information reports indicating such events have occurred. It takes into account the applicant’s claim that this was his experience and it was not reported in the media. However it notes the applicant has not claimed this has happened to her or her family. Given there is no country information supporting [Mr B]’s claims the Tribunal is not satisfied the applicant will be harmed in this way if she returns to Lebanon in the foreseeable future and practises her religion. In her written application the applicant claimed that, while preaching with a sister, they were threatened by a man who claimed to be a Daesh member. However she did not repeat this claim at the hearing or provide details about what happened, when it happened or why it might happen again. The Tribunal is not satisfied there is a real chance the applicant will be harmed by a Daesh member in the foreseeable future if she returns to Lebanon and practises her religion. Considered overall the Tribunal is not satisfied Jehovah’s Witnesses now have their homes damaged, or Jehovah’s Witness men are now mistreated and forced to denounce their faith. It is not satisfied militia and guerrillas will swarm meetings. It is not satisfied there is a real chance a Daesh member will threaten or harm the applicant because she is a female Jehovah’s Witness. Having regard to the country information the Tribunal is not satisfied such events have occurred recently to Jehovah’s Witnesses or will occur in the future. Accordingly it is not satisfied there is a real chance the applicant will suffer serious harm as described in these claims if she returns to Lebanon and practises as a Jehovah’s Witness in the foreseeable future.
The applicant has claimed that the authorities have closed their Kingdom Halls and disrupted their meetings because of complaints from neighbours and other mainstream religions. She has claimed they are forced to meet covertly and underground. She has claimed the police close their meetings. However the applicant indicated the last time their Kingdom Hall was closed was in 2009. The Tribunal accepts the applicant’s Kingdom Hall may have been closed temporarily in 2009. However it notes the applicant’s written evidence that she has been a member of [Congregation 1] since birth. The Tribunal notes the country reports that Jehovah’s Witnesses are able to meet. The European Association of Jehovah’s Witnesses in 2020 expressed their gratitude for the generally reasonable treatment shown by the authorities in Lebanon, who tolerate their meetings and allow them to gather peacefully. The Tribunal has given greater weight to the country information on this issue. While the Tribunal accepts meetings may have been closed temporarily in 2009 when the Kingdom Hall was closed, it is not satisfied, given the recent country information, that the authorities currently close Jehovah’s Witnesses prayer meetings and prevent them practising this tenet of their religion. It is also not satisfied that meeting discreetly amounts to serious harm.
The applicant has claimed that Jehovah’s Witnesses are not officially recognised and effectively denied protection from the Lebanese authorities. Given the hostile attitude of the authorities towards Jehovah’s Witnesses she has claimed they cannot rely on effective protection when they are threatened and so are vulnerable to attacks. She has claimed there is an absence of police protection for Jehovah’s Witnesses in Lebanon. In her written application the applicant claimed she and another Jehovah’s Witness escaped when dogs were set upon them. She claimed, despite reporting this incident to the administration, nothing was done and it was suggested she convert to another religion. She did not repeat this claim in her oral evidence, including when asked by the Tribunal if she had any other evidence to give. In her oral evidence to the Tribunal she indicated she has never approached the police seeking their protection, as other Jehovah’s Witnesses have tried and failed to secure police protection. The Tribunal has not been able to find any recent reports of police or security forces either targeting or not providing protection for Jehovah’s Witnesses in Lebanon. It has found no recent reports of incidents involving Jehovah’s Witnesses in Lebanon. They are not mentioned in the latest US Department of State International Religious Freedom report, or in annual human rights reports. Rather, the European Association of Jehovah’s Witnesses expressed their gratitude for the generally reasonable treatment shown by the authorities in Lebanon. The Tribunal is also not satisfied the authorities will not protect the applicant if she is attacked while practising her religion. Given the country information from the European Association of Jehovah’s Witnesses the Tribunal is satisfied protection against persecution could be provided to the applicant by the Lebanese authorities. It is not satisfied the applicant will be denied state protection in Lebanon because she is a Jehovah’s Witness.
The Tribunal has considered the applicant’s claim that a Jehovah’s Witness brother was punched while proselytising with the applicant. She claimed she ran away and was not physically harmed. Having regard to the country information, including that there are no recent reports of incidents of serious or significant harm involving Jehovah’s Witnesses in Lebanon, the Tribunal is of the view that, if the applicant’s Jehovah’s Witness brother was punched while they were proselytising, it was an isolated attack. It is not satisfied there is a real chance the applicant will suffer serious harm of this nature if she returns to Lebanon in the foreseeable future and practises as a Jehovah’s Witness.
The applicant has claimed that she fears she will be sexually assaulted if she returns to Lebanon and practises the tenets of her faith, including proselytising. She has claimed female Jehovah’s Witnesses are more vulnerable than their brothers because they are not able to physically defend themselves when the need arises and they constantly worry about sexual assault. The Tribunal notes that despite proselytising in Lebanon from the age of [age] until she was [age] when she travelled to Australia, her evidence is that she was not physically harmed or sexually assaulted. The applicant indicated that, because of threats of harm, she was forced to limit her preaching activities and preach only with a male. It notes her claim to fear harm because of the mentality of the people in Lebanon where she had been bullied and ridiculed and feared sexual assault. However the DFAT report states that people generally practise their religion freely and there is no religious persecution in the country. The Special Rapporteur noted that Lebanon had successfully kept society united across religious boundaries, built resilience in the face of religious extremism, and that Lebanese of all religious backgrounds were committed to defending the diversity of the country’s religions and beliefs. Neither the Special Rapporteur nor the European Association of Jehovah’s Witnesses have reported that female Jehovah’s Witnesses are at risk of physical or sexual assault. The Tribunal notes there are no recent reports of serious harm suffered by Jehovah’s Witnesses because of their religion, including female Jehovah’s Witnesses. The Tribunal accepts that, if the applicant returns to Lebanon and proselytises, she will preach only with a male as she did in the past. It is not satisfied however that this modification to her practice amounts to serious harm. Having regard to the country information, which does not report that female Jehovah’s Witnesses are at risk of sexual assault while proselytising, the Tribunal is not satisfied there is a real chance the applicant faces serious harm of this nature as a proselytising female Jehovah’s Witness.
The Tribunal accepts there is some official discrimination of Jehovah’s Witnesses in Lebanon. It accepts her parents had to marry in Syria under the Syrian Catholic rite, as Jehovah’s Witness marriage is not legally recognised in Lebanon. It accepts, as the Jehovah’s Witness religion is unrecognised by the authorities in Lebanon, they cannot perform recognised marriages or divorce proceedings. Her representative is of the view the systemic discrimination of Jehovah’s Witnesses amounts to a significant threat to the applicant’s liberty. The Tribunal does not agree with this view. It is of the view this is low level discrimination that does not amount to serious harm.
The Tribunal notes that the applicant, with her parents, visited [Country 1] and [Country 2] in 2014 and [Country 5] in 2016 and returned to Lebanon voluntarily on each occasion. It discussed with her its concern that she did not apply for protection on either occasion, despite visiting Refugee Convention signatory countries. The applicant confirmed that she travelled to those countries with her parents and they discussed as a family whether to seek refuge. She claims they were not aware that they could do so in those countries. She indicated that she always intended to stay with her parents and so would not have applied by herself; it would always be a family decision. The Tribunal accepts that the applicant was influenced by her parents with whom she wished to stay. However there is nothing before it to indicate they were prevented from applying for protection in the Refugee Convention signatory countries they visited. The Tribunal is of the view that, if the applicant and her parents genuinely feared serious harm or persecution in Lebanon because of their religion, they would not have voluntarily returned to Lebanon in 2014 and 2016. It is of the view their decision to return indicates they did not fear serious harm in Lebanon and had not experienced serious harm in the past.
The applicant’s father gave evidence in relation to his own claims, considered in another decision, that he had previously been held at gunpoint by Hezbollah and he feared being harmed by Hezbollah in the future. The Tribunal has found in his case that the country information did not support the claim that there was a real chance of serious harm inflicted by Hezbollah because of her father’s Jehovah’s Witness religion. The applicant did not raise this claim herself.
The Tribunal has considered all of the applicant’s claims individually and cumulatively. It is satisfied the applicant will practise her Jehovah’s Witness religion if she returns to Lebanon in the foreseeable future, in the manner she has in the past, that is, meeting discreetly with her congregation and proselytising with some modification with her Jehovah’s Witness brothers. Overall having considered all of the evidence and the country information, the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm (as opposed to low level official and societal discrimination which it has found does not reach the level of serious harm) because of her Jehovah’s Witness religion. It is not satisfied she faces a real chance of serious harm on the basis of her religion, or on the basis that she is a proselytising female Jehovah’s Witness. It is not satisfied the applicant faces a real chance of serious harm for any reason if she returns to Beirut, Lebanon now or in the reasonably foreseeable future. For the reasons given above, it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection criterion
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether she meets the criterion for the grant of a protection visa under the complementary protection criterion.
Having considered the country information, the Tribunal is satisfied that if the applicant returns to Beirut, Lebanon in the foreseeable future she may suffer some low level official and societal discrimination. It notes that the Special Rapporteur reports Jehovah’s Witnesses mostly enjoy freedom to confess and practise their beliefs but face problems when attempting to build an infrastructure. The Tribunal is not satisfied that this amounts to significant harm as it is not satisfied it amounts to torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal notes the European Association of Jehovah’s Witnesses has reported that Jehovah’s Witnesses must meet covertly in their homes and there were restrictions in importing religious literature and publicly sharing beliefs but that Jehovah’s Witnesses in Lebanon have expressed on several occasions their gratitude for the generally reasonable treatment shown to Jehovah’s Witnesses by the authorities. The Tribunal is not satisfied those restrictions amount to torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal is not satisfied the discrimination the applicant may face if she returns to Lebanon in the reasonably foreseeable future will amount to being arbitrarily deprived of life, or that the death penalty will be carried out, or that she will be subjected to torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal is not satisfied 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 she will suffer significant harm. It is not satisfied the applicant meets the criterion set out in s.36(2)(aa) of the Act.
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 any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
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.
…
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.
…
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.
…
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.
…

[2021] AATA 3166

28 May 2021

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Immigration

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Natural Justice

Procedural Fairness

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