1711503 (Refugee) - [2020] AATA 4843

1711503 (Refugee) [2020] AATA 4843 (6 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711503
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Mara Moustafine
DATE:6 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 November 2020 at 11:33am
CATCHWORDS
REFUGEE – protection visa – Lebanon – fear of ex-wife’s family – honour-related violence – issue of ‘mouakhar’ (Islamic dowry) – claims unsubstantiated and speculative – complementary protection – political unrest – explosion at the port in Beirut – economic and financial crisis – COVID-19 pandemic – unique or exceptional circumstances – Australian-citizen wife and daughter – guidelines for Ministerial intervention – ‘inappropriate to refer’ category – partner visa refused previously in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 19 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Lebanon and is [age] years old. He first arrived in Australia as a holder of a Student visa [in] March 2011. On 18 July 2013 he applied for a Partner visa which was refused on 17 November 2014. He lodged a review application on 23 December 2014 but withdrew the review application on 22 March 2016 and applied for a protection visa on 31 March 2016.
Evidence before the Department
According to his Protection visa application form, the applicant was born in [location], Akkar in [year] and was living in Tripoli, North Lebanon before coming to Australia. He is Lebanese by ethnicity and a Sunni Muslim. He reads, writes and speaks Arabic and English. He completed a [Qualification 1] in Lebanon, then studied tertiary courses in Australia and has owned a [shop] since August 2013. His parents, [and number of siblings] live in Lebanon and [number of siblings] live in Australia. He stated that he was married [from] July 2013 [to] September 2015. Supporting documents provided included certified copies of his passport pages showing his biodata, entry and exit stamps and copy of his original Australian student visa.
The applicant’s protection claims, as outlined in his application were that he had been subjected to family violence and ongoing threats to his personal safety by the family of his estranged wife, an Australian of Lebanese descent, seeking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1711503 (Refugee)

Details

AGLC: 1711503 (Refugee) [2020] AATA 4843
Case: [2020] AATA 4843
Decision Date: 6 November 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration and Border Protection to refuse the applicant a Protection visa. The applicant, who is from Lebanon, sought review of this decision, initially claiming a fear of harm from his ex-wife's family related to an Islamic dowry ('mouakhar'). Subsequently, he also sought complementary protection, citing political unrest, economic crisis, and the COVID-19 pandemic in Lebanon, as well as the hardship of leaving his Australian wife and daughter.

The Tribunal was required to determine whether the applicant met the criteria for a Protection visa under either the refugee or complementary protection provisions. Specifically, it needed to assess if he held a well-founded fear of persecution or significant harm, or if there were compelling and exceptional circumstances warranting his remaining in Australia. The applicant also requested that the Tribunal refer his case for Ministerial intervention under section 417 of the Migration Act 1958 (Cth) to allow him to apply for a Partner visa onshore, given a previous Partner visa refusal in Australia.

The Tribunal accepted that the applicant had established a life in Australia, including being married to an Australian citizen, having an Australian-born child, and owning a business. However, it found that these circumstances did not satisfy the criteria for protection under the Migration Act. Regarding the request for Ministerial intervention, the Tribunal considered the relevant guidelines, which state that it is inappropriate to consider cases where a Partner visa has already been refused in Australia. Therefore, the Tribunal concluded that it would be inappropriate to refer the applicant's case for Ministerial intervention.

The Tribunal affirmed the delegate's decision, finding that the applicant did not meet the criteria for a Protection visa under either the refugee or complementary protection provisions. Consequently, the applicant's application for a Protection visa was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 19 May 2017, a delegate of the Minister for Immigration and Boarder Protection refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. Evidence before the Tribunal On 30 May 2017, the applicant applied to the Tribunal for a review of the Department’s decision. He provided a copy of the decision to the Tribunal for the purpose of the review and is taken to be on notice of its findings and reasons. On 22 June 2020 the applicant wrote to the Tribunal stating that he hoped the Tribunal would be able to decide in his favour due to the current COVID-19 pandemic which prevented him from leaving Australia and applying for a partner visa from offshore. In summary, the letter, which was accompanied by supporting documents, stated that:a.‘As to my fear of harm as previously mentioned I openly say that I fixed the problem with my ex parents-in-law and I already paid them $2000 and another $8000 will be met this year in December 2020 to solve the issue of ‘mouakhar’ to my ex-wife (Islamic dowry)’. b.If the Tribunal was unable to recognise his subjective well-founded fear of harm in the current circumstances he asked that it recognise his compelling and exceptional circumstances and assist him not to leave Australia as he was, among other things, the spouse of an Australian citizen since 2018, the father of [an age] year old Australian citizen child and owner of an Australian business since 2013. c.If he has to return to Lebanon, he would be at risk of serious harm in the face of the severe economic and financial crisis in Lebanon, the consequent anti-government protests and political unrest; as well as the health risk of COVID-19. d.If he has to leave Australia for an unknown period he would suffer severe economic hardships as he would have to be away from his business, for whose operation he was responsible. He would also suffer extreme hardship in being separated from his wife and daughter. e.He understands that, as he has had a partner visa refused previously in Australia, he is not entitled to lodge another partner visa application onshore without the recommendation of the Tribunal and without recognition of his fear of violence, political conflicts and economic collapse in Lebanon. On 20 October 2020, the Tribunal wrote to the applicant inviting him to give oral evidence and present arguments relating to the issues arising in his case at a video hearing conducted by Microsoft Teams on 4 November 2020. The applicant accepted the Tribunal’s invitation on the same day. On 26 October 2020, the applicant’s wife submitted a statement of support outlining the family’s personal circumstances, including that she was expecting a second child in 2021 and emphasising the adverse impact on her life and that of her family if her husband had to depart Australia. The hearing The applicant appeared before the Tribunal by Microsoft Teams video conference on 4 November 2020 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

Decision

Reasons for decision

The Tribunal accepts that the applicant has been living in Australia since 2012, has an Australian-born wife and daughter, has succeeded in his studies and built up a business. It also accepts that the applicant does not wish to leave Australia and be parted from his family in order to apply for a partner visa offshore. However, as discussed with the applicant, these are not grounds on which Australia owes him protection under either the refugee or complementary protection criterion.CONCLUSIONS For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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 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 criterion in s.36(2).REFERRAL TO THE MINISTER In his written statement and evidence at hearing, the applicant requested that, if the Tribunal was unable to recognise his well-founded fear of harm, it should recognise his compelling and exceptional circumstances and assist him not to leave Australia. At the hearing the applicant indicated that, in these circumstances, he would be making an application for Ministerial intervention and requested the Tribunal’s make such a referral. Section 417 of the Act confers on the Minister a non-compellable, personal discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The current guidelines for Ministerial intervention are set out on the Department's website: They provide examples of the types of unique and exceptional circumstances that can be brought to the Minister's attention, as well as a list of factors relating to cases where it would be inappropriate to refer them to the Minister. The Tribunal has considered the applicant’s request that the Tribunal refer this matter for consideration of Ministerial intervention under s.417 so that he might be allowed to make a Partner visa application onshore rather than having to leave Australia and return to Lebanon for an indefinite period to make an offshore partner application, leaving behind his dependent Australian wife and baby daughter. Having carefully considered the relevant guidelines, the Tribunal has concluded that it would be inappropriate for it to refer the applicant’s case for Ministerial intervention. While the Tribunal accepts that it would cause the applicant and his wife and daughter hardship and distress to be separated for an unknown period of time (which might be lengthy due to the current global travel restrictions caused by the COVID19 pandemic), the Ministerial guidelines specifically state:‘If you have been refused a Partner visa already while in Australia, the Minister has indicated that it is inappropriate to consider your case under the public interest powers. The Minister expects us to finalise such requests without further processing.’

Ratio Decidendi

Legal Principle Established

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