1714038 (Refugee)

1714038 (Refugee) [2021] AATA 629 (28 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714038
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Nathan Goetz
DATE:28 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 January 2021 at 4:14pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – credibility assessment – migration history – delay in seeking protection – no past harm experienced – inconsistent evidence – willingness to tell untruths – late claim not raised earlier – particular social group – working-class Lebanese citizen – general security situation – 2020 Beirut explosion – August 2013 Tripoli bombings – economic crisis – access to health care – COVID-19 pandemic – applicant’s health conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 351, 415, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
S1891 v MIMIA [2005] FMCA 1069
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 27 April 2009 the applicant was offshore and applied for a student visa. On 10 June 2009 this visa was granted. [In] June 2009 the applicant arrived in Australia.
On 15 March 2012 the applicant’s student visa ceased. The same day, he lodged an application for another student visa. On 16 March 2012 he was granted a bridging visa while his student visa application was being considered.
On 7 August 2012 the applicant’s student visa application was refused. On 10 September 2019 the applicant lodged a combined partner visa application. He was granted a new bridging visa on 11 September 2012, and his earlier bridging visa (that was granted on 16 March 2012) ceased on 13 September 2012. On 9 May 2013 he was granted another bridging visa.
On 1 July 2012 the combined partner visa applications were refused. On 10 July 2014 the applicant applied to the Tribunal for a review of the refusal decision. [In] August 2015 the Tribunal upheld the refusal decision in case AAT [number]. On 16 September 2015 the applicant applied to the Minister under s.351 to intervene and substitute the Tribunal decision with a more favourable one. On 18 September 2015 and 1 October 2015 bridging visas were granted to the applicant.
On 12 November 2015 the request to the Minister to intervene was finalised as inappropriate to consider. On 8 December 2015 and on 16 September 2015 bridging visas were granted to the applicant.
On 31 December 2015 the applicant lodged a protection visa application. On 5 January 2016, 27 January 2016, 8 February 2016, 3 March 2016 and 24 March 2016 bringing visas were granted to the applicant. On 21 April 2016 the protection visa was deemed invalid.
On 11 May 2016 the applicant lodged a protection visa application. Bridging visas were granted on 31 May 2016, 24 June 2016, and 11 July 2016. The applicant was interviewed by the delegate on 5 May 2017 for the protection visa application. On 9 June 2017 the delegate refused to grant the protection visa.
On 30 June 2017 the applicant applied to the Tribunal for a review of the refusal decision. A bridging visa was granted on 11 July 2016.
On 19 November 2020 the applicant appeared at the Tribunal for a hearing to give evidence and present arguments. The applicant was represented by registered migration agent [number] [Mr A] who attended the hearing by telephone. The hearing was conducted with the assistance of an interpreter in the English and Arabic languages.
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-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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection visa application form
According to the protection visa application filed 11 May 2016, the applicant is a [age]-year-old male citizen of Lebanon. He provided a copy of his Lebanese passport issued [in] 2009. He was born in [location], Lebanon. He identifies as an Arab, Muslim and unemployed. He was married the same day his relationship began [in] August 2012 in Australia. His mother and father, [and number of siblings], all live in Lebanon. He has never travelled to any country other than Australia in the 30 years prior to lodging his protection visa application. From 1995 to June 2009 he lived in Tabneh, Tripoli, Lebanon.
The protection visa application form asked the applicant about his reasons for claiming protection. He identified that he was making his own claims for protection and directed the reader to his attached statement. He did indicated that he had not experienced harm in Lebanon, that he had not sought help within Lebanon, had not moved or tried to move to another part of Lebanon and did not think that he would be harmed or mistreated if he returned to Lebanon, although he thought that the authorities could not and would not protect him if he returned to Lebanon. He also indicated that he did not think he would be able to relocate within Lebanon.
In the statement attached to the protection visa application form dated 29 December 2015, he wrote that he arrived in Australia with an aim to study and to help the society he came from. But now, having lived in Australia for a long time, his aim is different. He wrote that the situation in Lebanon became worse and worse. The trouble was simmering under the ground for years and not manifest itself clearly in the media. But if you go to Youtube and write words which he provided; you see images ‘like this’. He attached an image of a vehicle and surrounding that appear to have been damaged. He also attached a link to a website.
He wrote the situation in Lebanon was tragic and it was substantially augmented by the Syrian civil war. The applicant lived in Bab Al Tebbana which is a Sunni area. The applicant comes from a Sunni background. The Lebanese government and society treat people according to their religion. He learned that this is wrong while he was in Australia. He wrote that it had been known for a long time that Sunni Militiamen in Bab Al Tebbana are in constant armed conflict with the residents of Jabal Mohsin. He noted who supports Radical Sunni Organisations and who supports the Syrian Regime and Hezbollah. Returning to Lebanon is to return to a gruesome and ugly religious war. Returning to Lebanon is to return to a fear and black future. He noted that Lebanon is nothing more than one large refugee camp and that half of the population in Lebanon are refugees. In this environment of ‘religious hatred, sectarianism, violence-seeking terrorists, revenge-seeking criminals there is no room for neutrality or peacefulness, for every side of the senseless killing frenzy wants you to join in the feast of unpunished crimes.’ The applicant is a peace-loving person. He hates violence and does not believe that violence is going to create anything other than violence.
The thing that affected the applicant and made him adamant not to return to Lebanon was the massive explosion that occurred inside the University of Taqwa and Iman in Tripoli. He noted that this was religiously motivated and the resulting deaths and injuries. His father and brother were there when the bomb went off, but providence saw that they were not injured and only sustained superficial injuries. The applicant seeks to live in a country that that respects human rights and implements the rule of law. He found these values in Australia and believes that he belongs to the society. He fell in love with a woman who became his wife. She is an Australian citizen. His wife suffers from stress and emotional condition. Her condition dramatically deteriorated when she was told that he may have to be separated following the decision to reject his application for a permanent visa.
Oral evidence given by the applicant at the delegate interview on 5 May 2017
The applicant gave evidence to the delegate concerning his claims. Where relevant to the Tribunal’s findings, that oral evidence is detailed in this decision record.
Material provided to the Tribunal prior to the Tribunal hearing
On 1 March 2019 the applicant provided the Tribunal with a statutory declaration dated 1 March 2019 for the Minister to exercise powers under s.417 of the Act.
On 12 November 2020 the applicant provided the Tribunal with a submission from the migration agent. Attached to the submission was a copy of the earlier request to the Minister to exercise powers under s.417 of the Act. Included in the request was the birth certificate for [Child B] who was born in [year] and a letter stating that the applicant’s wife was expecting another child in October [year], as well as various medical reports and letters from relatives. Attached separately was a birth certificate for the applicant’s second child, [Child C] who was born in [year].
The submission stated that the request was made at the time where the applicant conceded he might not have protection visa requirements, and it was hoped that the Tribunal would consider referring the matter to the Minister to intervene in the case. It was understood by the migration agent that the Tribunal is unable to do so until a decision on the protection visa was made. The statutory declaration was provided for that purpose.
Notwithstanding this, it was submitted that there had been ‘significant developments in the applicant’s country of citizenship that have a direct effect on his claims for protection’. Specifically, ‘the capital control measurers imposed by Lebanese banks limiting citizens access to their own funds, where the cumulative effect of these control measures might amount to persecution.’ It was submitted that ‘the capital control measures have resulted in the unfair denial of depositor’s access to their own funds creating unnecessary financial hardship for individuals and their families despite any commitment to full time employment. Working class citizens are limited to accessing between $2 to $300 per month in a country where the typical average salary is $1500 USD per month. The direct effect of capital control is the review applicant’s inability to ensure that his basic living expenses for food, shelter, accommodation and medicine are met.’
While the claims of economic hardship do not themselves amount to persecution, it was put that cumulative effects of a number of lesser harms which of themselves do not constitute persecution may lead to the conclusion that the combined effect of the harm is sufficiently serious to constitute persecution. The migration agent cited S1891 v MIMIA [2005] FMCA 1069 as proposition for this authority. It was submitted that the Tribunal ‘should consider whether the applicant’s condition of insecurity resulting from financial inequities due to his Lebanese nationality (working class citizen) and inability to draw his monthly salary each month will amount to persecution’. The submission then went on to to detail the applicant’s ‘hypothetical living expenses in Lebanon’ and suggested that it was ‘a reasonable proposition for the Tribunal to consider whether the review applicant’s inability to withdraw his earned funds derived from employment as a working class Lebanese citizen amounts to persecution’. The submission then went to state that ‘Lebanon’s class system is comprised of oligarchy, middle and working class’ and stated who fit into each class.
There was also an updated statement from the applicant dated 11 November 2019 upon which the migration agent clearly drew the submissions concerning the applicant’s economic situation if he was to return to Lebanon. The applicant also detailed why the Tribunal should refer this review application to the Minister to exercise powers under s.417 of the Act, including his wife’s health issues, his own health issues and the fact that the Tribunal was wrong to uphold the refusal decision for the combined partner visa applications.
Oral evidence given at the Tribunal hearing on 19 November 2020
The Tribunal advised the applicant that it had read all the information he had provided and listed to the delegate interview. The Tribunal queried whether there was anything that the applicant wanted to tell the Tribunal about his protection claims that he had not previously raised. He said no.
The Tribunal provided the applicant with his migration history. The applicant said that it looked accurate.
The applicant told the Tribunal that he lived in the family home in Tripoli since birth until he departed Lebanon. His parents still live in the family home. His parents and siblings continue to live in Lebanon. The applicant told the Tribunal that he has a wife and two children in Australia and that they are Australian citizens.
The Tribunal asked the applicant when he realised that he needed to claim protection in Australia. He said it was around 2012 due to the problems with Syria. However, the applicant had already applied for a partner visa.
The Tribunal noted to the applicant that in Question 94 of his protection visa application form, he indicated that he did not think he would be harmed or mistreated if he returned to Lebanon. The Tribunal asked why he answered no. The applicant said there was nothing personal against him and that the problems he faced were problems that most Lebanese people faced at the time he applied for the protection visa. The Tribunal noted its observation that it appeared he did not think he would be harmed or mistreated but was concerned about the general security situation in Lebanon. The applicant agreed with this, but said that after problems started, the situation deteriorated, and he was not able to return to Lebanon and could not bring his Australian family there.
The applicant was asked who he feared will harm him in Lebanon. He said that he was worried about any harm to him or his family. Anything could happen at any time, especially since the explosion of 4 August 2020 in Beirut. The Tribunal is aware that this relates to the ‘ detonation of more than 2,700 tonnes of ammonium nitrate housed at the Beirut port for more than seven years was one of the largest non-nuclear blasts ever recorded’: Beirut blast: a night of horror, captured by its victims, The Guardian, 12 November 2020. He noted that in the last 5 years things had gotten dangerous and that there was a young Australian citizen who had been killed in the 4 August 2020 explosion which made him think that this could happen to his family. There were explosions and assassinations in Lebanon.
The Tribunal noted that in the protection visa application, the applicant referred to explosions at the ‘University of Taqwa and Iman’ in Tripoli. The applicant clarified that that he was referring to bombings at two separate mosques in Tripoli. The Tribunal accepts that there is a subtle difference between the Arabic word for ‘mosque’ and ‘university’. He said he thought the explosion occurred around 2014 but could not be exact. For the sake of completeness, the Tribunal is aware that these two explosions occurred in August 2013: Bombings Strike Lebanon, as Mosques Are Targeted in Growing Violence, New York Times, 23 August 2013.
He became aware of the bombings through Facebook. He contacted his family in Lebanon. It was all over the news and media. He had initial difficulty getting in contact with his family. He was contacted by his father who said that he had received a head injury and his brother had received a leg injury. They were not hospitalised and treated on site. The applicant said that his father, brother, cousin and his brother-in-law were present at the Al Taqwa mosque. The Tribunal raised with the applicant that he had given inconsistent evidence about who was injured. The Tribunal noted that the applicant was consistent in the evidence that his brother and father had been injured in both his written protection visa application and in his oral evidence to the Tribunal, but he had told the delegate he had two brothers and a brother-in-law that were injured in the mosque attack, which was different. In response, the applicant said that when he was interviewed by the delegate, this was a difficult question. He is a human being and may forget some details given he was under pressure. He had been in Australia for 11 years and was not sure about what his situation will be. He was sure it was his father and brother who were injured, and that the other person who was injured was his brother-in-law.
The Tribunal noted that in the protection visa application, the applicant declared that he had never been to any countries other than Australia, but said at the delegate interview that he had travelled to [Country 1] numerous times, with the most recent travel in 2009. The Tribunal noted to the applicant that this suggested that he may have a flexible approach to the evidence he provides and may not be a witness of truth. He responded that his mother is [from Country 1], and his father is Lebanese and noted that the families live on the border. There was in fact no border and he was able to enter anytime from either the Lebanese or [Country 1] side. He did not consider this travel outside of Lebanon. The Tribunal indicated that it failed to understand this logic because [Country 1] is a separate country to Lebanon. He responded that this was true, and that the situation was complicated with [Country 1] considering it one country from 2005.

The Tribunal noted to the review applicant that in his protection visa application form, he declared that he had never been employed, however when asked about his previous employment at the delegate interview, he said that he was employed in Lebanon from 2005 to 2009 at a [shop]. Again, this suggested to the Tribunal that he was flexible in his evidence and not a witness of truth. In response, the applicant said that when he was in Lebanon he was working and had no problem. He said this could be a misunderstanding in the form. He was not sure what was put in the protection visa form. He said he supplied documents when he applied for a student visa to show he was working and questioned why he would hide his employment. The applicant said that he never tried to deny that he was working in Lebanon. This could be a misunderstanding, or it could be a mistake. The Tribunal asked the applicant whether he had made any other mistakes in the protection visa application form, and he said not that he knew.
The Tribunal noted to the applicant its understanding that the applicant’s partner visa was refused by the delegate on 1 July 2014 on the basis that this partner visa application had not been made within 28 days of the applicant last holding a substantive visa, which is required for onshore visas of this type. The Tribunal notes that the last substantive visa that the applicant held was his student visa which ceased on 15 March 2012. He would need to demonstrate ‘compelling reasons’ for this requirement to be waived. The Tribunal put to the applicant that he would have been aware that he had this hurdle to clear to be successful in a partner visa application as of 1 July 2014.Given this, the Tribunal struggled to understand why the applicant did not lodge a protection visa when his partner visa was refused if his fear of harm in Lebanon was genuine. The applicant said that when his partner visa was refused, he had a migration agent who advised him to seek a review of the refusal decision with the Tribunal and was confident of being successful at the Tribunal. There was no need for him to apply for a protection visa because he was in a genuine relationship. He would win the case because he had not done anything wrong. Because of his situation, he deserved the partner visa and that is what he was advised. He became aware of protection visas in Australia in late 2012 or early 2013 through the media where he was told he could make a protection application. He then had a discussion with his migration agent when his partner visa was refused in 2014. The applicant said that the danger had been there since 2012, but he did not imagine his partner visa would be refused, so there was no need to lodge a protection visa application.
The Tribunal raised with the applicant that he had not previously raised his claim that he would suffer harm because he was a ‘working-class Lebanese citizen’. The Tribunal notes that the first time this claim was raised was in the submissions of 12 November 2020. The Tribunal erroneously referred to his claim of that being a ‘working class Lebanese male’ and the migration agent corrected the Tribunal about the nature of the claim. The Tribunal noted that the late raising of this claim may suggest that the applicant’s claim is not true, that he has a flexible approach to the truth and that he was willing to tell the Tribunal whatever he thought may help him achieve a positive migration outcome. The applicant responded that when he was interviewed for the partner visa, he did not need to mention this, but things have been getting worse in Lebanon every year. If the Tribunal asked him questions about the situation in 2014 or 2015, it was better than the current situation. He has not tried to change his evidence, but the situation had changed. With gaps between the delegate interview and Tribunal hearing, many things changed. He had lodged many applications between 2009 and 2020 and it was not easy to remember, and he might forget. Now, there is a new problem with Lebanon suffering financial crisis. No one can withdraw money from banks, there is a limited amount of money a person is able to withdraw, and people are struggling. The Tribunal repeated why this had not been raised previously. The applicant said that if he went back to Lebanon, he would not be able to withdraw money from the bank from any wages he earned.
The Tribunal noted to the applicant some of the information contained in the most recent Department of Foreign Affairs and Trade Report on Lebanon concerning the Lebanese economy, DFAT assessment of the reason for a ‘push’ for migration out of Lebanon, the security situation, and the health system. The Tribunal was considering the following:
19 March 2019 DFAT Country Information Report on Lebanon
The Syrian civil war has had a major impact on the Lebanese economy. The conflict cut off one of Lebanon’s major markets and a transport corridor to the Gulf, while the influx of Syrian refugees has heightening competition for low-skilled jobs and public services (at 2.9).
DFAT assess that limited economic opportunity, exacerbated by the influx of displaced Syrians, is a push factor for external migration (at 2.13).
Lebanon’s health outcomes compare favourably with other countries in the region and with middle income countries in other regions (at 2.16) The standard of health care in Lebanon is widely considered to be very poor. Just under half of Lebanese citizens (47 per cent) have health insurance. About 23 per cent of those insured are covered by the National Social Security Fund, 9 per cent by military schemes, 7 per cent by private insurance, 4 per cent by the Civil Servants Cooperative, and 4 per cent by other schemes. The remaining 53 per cent lack any formal coverage and are covered by the Ministry of Public Health, which serves as the insurer of last resort. This has given the Ministry of Health a strong role not only in preventative care, public health leadership and regulation, but also in curative care. To provide hospital coverage to about 250,000 cases per year, the Ministry of Public Health contracts 26 public and 105 private hospitals. Individual patient co-payment to the hospital constitutes 5 per cent (public hospital) or 15 per cent (public hospital) of the hospitalisation costs, with the Ministry of Public Health directly reimbursing the hospital for the difference. As such, the Ministry of Public Health is the main financier of private hospitals, allocating almost two thirds of its total annual budget for hospitalisation coverage (at 2.18).
Lebanon faces a range of security challenges. These include external threats related both to the conflict in neighbouring Syria and to tensions between Hezbollah and Israel; threats of terrorist attack from internal and external actors, politically motivated violence due to unrest; and occasional incidents of communal violence. The government maintains security checkpoints, primarily in military and restricted areas (at 2.43).
Violent incidents related to the Syrian conflict have occurred across Lebanon in recent years, including suicide bombs, car bombs, improvised explosive devices, rocket attacks, and kidnappings. (at 2.44). That same paragraph goes on to provide Examples of such incidents include (but are not limited to):
·The detonation of several bombs in central Beirut between 2012 and 2016 which caused multiple deaths and injuries;
·Two suicide bomb attacks outside a mosque and a bakery in Borj el Barajne in the southern suburbs of Beirut in November 2015 that killed at least 43 people and injured more than 200;
·A suicide bomb attack outside a café in Tripoli in January 2015 that killed at least nine people.
Clashes have occurred between Lebanese security forces and Islamic State militants in the north-eastern Beka’s valley region (including the Hermel-Baalbek region and the towns of Arsal, el Qaa and Raw Baalbek. DFAT understands that security operations conducted against Islamic State have succeeded in reducing the threat the organisation poses, although ‘lone wolf’ attacks cannot be ruled out (at 2.45).
The conflict in Syria has increased tensions between communities in a number of areas. Historical tensions between Sunnis and Alawites in the adjoining neighbourhoods of Jabal Mohsen (predominantly Alawite) and Bab-al-Tabbaneh (predominately Sunni) escalated in the early stages of the Syria conflict, particularly around Syria Street (the dividing line between the two communities), leading to regular rounds of communal violence that killed over 200 people. Lebanese authorities implemented a security plan in April 2015 that re-established a Lebanese Armed Forces presence in the area. DFAT understands that this has succeeded in significantly reducing the number of serious incidents of communal violence, although underlying tensions remain (at 2.46).
Nowhere in that DFAT report does it report on the Lebanese working class, or male members of the Lebanese working class, being a group of people who are discriminated against.
The Tribunal put to the applicant that when it took into account the applicant’s migration history, coupled with the country information about Lebanon, it appeared to the Tribunal that the applicant lodged a protection visa because he believed that he would be financially better off in Australia and would not have to be separated from his wife and children, not because he had a well founded fear of persecution or because there was a real risk of significant harm to him on account of his removal from Australia to Lebanon. The applicant responded that he said in his protection visa application form he said that he had no fear of harm. He did not lie to the Department. But the situation in Lebanon has been changing. It is much worse and there is a risk of a civil war. This fear increased after 2019 because of the financial situation and people go hungry and are not able to get health treatment. He told the Tribunal that the crisis with the banks was not present when he applied for a protection visa in 2015.
The applicant reiterated that he had been truthful in what he had said.
The Tribunal asked the applicant whether there was anything else that he needed to raise in support of his protection visa application. The applicant said that the situation had changed because of the COVID-19 pandemic. The applicant said that this was not previously raised in support of his protection claims because it was only in the last 2 or 3 days that Lebanon had entered a lockdown, and that he could not provide any further claims after 12 November 2020. The Tribunal notes that this was the last day for submissions to be provided prior to the Tribunal hearing on 19 November 2020. The Tribunal noted that the applicant had not raised this claim at the start of the hearing, when he was asked whether there was anything new that he needed to raise in support of his protection claims. The raising of this claim at the end of the Tribunal hearing suggested to the Tribunal that the applicant was just throwing this claim in for good measure. The applicant disputed this, and said he was not sure if the COVID-19 pandemic was relevant to his claims. He was telling the Tribunal about this so no one could say that he had never raised it. The Tribunal asked what his concerns with the COVID-19 pandemic were and how they related to Australia’s protection obligations to him. In other words, why should the applicant be granted a protection visa because of the COVID-19 pandemic in Lebanon. The applicant responded that he did not think he would be eligible for a protection visa based on the COVID-19 pandemic but that it added to the health and financial crisis in Lebanon.
The migration agent asked for time to provide the Tribunal with information to address the information raised by the Tribunal in the Country Information Report. The Tribunal gave the applicant until 20 November 2020 at 4pm to provide this.
Material provided to Tribunal after Tribunal hearing
On 20 November 2020 the Tribunal was provided with an article by Sharmila Devi dated 22 February 2020 from ‘The Lancet’ titled ‘Economic crisis hits Lebanese health care’ and directed the Tribunal to paragraph 2.18 of the DFAT report for Lebanon. The migration agent wrote that the health care system in Lebanon is very poor and asked the Tribunal to consider whether the DFAT report is still accurate in light of the attached article.
FINDINGS AND REASONS
The Tribunal considered all the information that was provided to it. Where relevant to findings, the Tribunal has noted the information below.
The issue in this case is whether there is a real chance of serious harm to the applicant on account of his race, religion, nationality, membership of a particular social group or political opinion, and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal to Lebanon, there is a real risk of significant harm. The Tribunal must also consider whether the applicant is a member of the same family unit as a person who is a refugee or meets complementary protection.
The Tribunal is satisfied that the applicant is a male citizen of Lebanon who has no right to enter and reside in a third country. He produced his Lebanese passport when he applied for his protection visa and produced an updated Lebanese passport when he appeared at the Tribunal hearing. The country of reference for the protection visa application is Lebanon.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
County of reference
The applicant provided his Lebanese passport when he applied for a protection visa. At the Tribunal hearing, he provided his most recent passport which had been issued by the Republic of Lebanon [in] 2020. The passport is valid [until] 2025.
The applicant has not claimed to hold citizenship of any other country, or that he has a right to enter and reside in a third country. There is no evidence to suggest that the applicant has any other citizenship or right to enter and reside in a third country. The Tribunal is satisfied on the basis of the applicant’s Lebanese passport that he is a citizen of Lebanon.
Accordingly, Lebanon is the country of reference for the protection visa assessment.
Delay in protection visa application and migration history
The Tribunal is conscious of the fact that the applicant has not claimed to have experienced past harm in Lebanon. To that end, the Tribunal was very interested to find out what it was that made the applicant lodge a protection visa on 31 December 2015, given that he had been in Australia since 30 June 2009. The applicant said that he had fears of returning to Lebanon since 2012 because of what he has described as a worsening situation, but he did not lodge a protection visa at that time because he had an ongoing partner visa application, which meant that lodging a protection visa was unnecessary. The Tribunal has considered whether that is a reasonable explanation for the delay in applying for a protection visa but is not satisfied that this is correct.
The Tribunal accepts that combined partner visa applications are a pathway to permanently reside in Australia. However, it would have been obvious to the applicant that on 1 July 2014 he would have considerable difficulty remaining in Australia on a partner visa. He had not met the requirements to lodge the partner visa as he had not done so within the prescribed timeframe. Given the applicant said that he had fears of returning to Lebanon since 2012, it is reasonable to expect that the applicant would have lodged a protection visa at that time, or at the very least, when it became apparent that he would not meet the requirements for the partner visa. The Tribunal’s view is that if the applicant had a genuine fear of harm in Lebanon, he would not have delayed lodging a protection visa application until December 2015 once his request for Ministerial Intervention concerning the partner visa was refused.
The Tribunal views the delay as evidence of two things. First, that the applicant does not have a genuine fear of harm in Lebanon and second, that the applicant has applied for a protection visa as an alternative to the pathway to residency which is no longer available to him as a result of the partner visa refusal.
The Tribunal was particularly persuaded about the protection visa being lodged as an alternative to the partner visa due to the significant amount of material the applicant provided concerning his Australian-citizen wife. The applicant provided details of payments concerning [specified medical] treatments, day surgery receipts, historic letters from a counsellor concerning his wife’s social anxiety disorder which is undermined by poor self-esteem and depressed mood and letters from a general practitioner who noted that the applicant’s wife’s mental illness has been ‘under control’ since she married the applicant. The applicant also submitted a number of letters and birth certificates of people indicating that the applicant’s wife is the sole carer of her mother, despite his wife’s siblings’ presence in Australia. Clearly, the applicant’s wife would find it more difficult to look after her mother and maintain good mental health if the applicant was no longer in Australia. The applicant’s incentives to remain in Australia have increased through fathering two Australian citizen children.
When the Tribunal considers the above information which was provided by the applicant to the Tribunal, it is satisfied that the protection visa was lodged not because the applicant has a well-founded fear of harm in Lebanon, but as an alternative to remaining in Australia on a partner visa which had been denied to him. In short, the applicant lodged a protection visa to remain in Australia so he could be with his Australian citizen wife, not because he genuinely feared harm in Lebanon. The Tribunal is not satisfied that the applicant’s reason for lodging the protection visa has now changed, or that his claimed fear of harm is now genuine.
Inconsistent evidence about previous travel outside of Lebanon, previous employment in Lebanon, and relatives who were injured in Lebanon in 2013
The Tribunal also had concerns about the applicant’s willingness to tell untruths in order to obtain a favourable migration outcome. As noted in his protection visa application form completed on 10 May 2016, the applicant declared that he had never travelled to any country other than Australia in the last 30 years. He was asked whether he had travelled to any country other than Australia by the delegate and initially said no, but later in the delegate interview said that he had travelled to [Country 1] ‘numerous times.’
The Tribunal is very concerned about the applicant’s flexible approach to something as basic as whether he had travelled to another country other than Australia. He declared no in the protection form. He initially said he had not done so to the delegate, and then later changed that evidence. When the Tribunal put to the applicant its concerns that this suggested the applicant had a flexible approach to the truth, all the applicant could say was that his mother was [from Country 1], the families live on the border and did not consider this travel out of Lebanon. The Tribunal is not persuaded by that explanation. The Tribunal’s views that the applicant tried to hide his travel to [Country 1] for reasons that are unknown, and then changed his evidence during the delegate interview, and that the applicant deliberately left out this information in the protection form. The Tribunal really struggles to accept that if the applicant was prepared to initially hide information as basic as whether he had travelled to other countries, he would not be prepared to adopt a similar approach to his protection claims, namely, be prepared to be less than honest in order to achieve a positive migration outcome.

The Tribunal also has great concerns that the applicant declared in his protection that he had never been employed in Lebanon. The Tribunal would describe the question about employment as a basic one. The fact that the applicant claimed to have never been employed may have demonstrated that he had an inability to subsist in Lebanon. However, as discussed previously, the applicant was in fact employed in Lebanon from 2005 to 2009 as he disclosed to the delegate. The Tribunal notes that the applicant arrived in Australia in 2009. The Tribunal does not accept that the applicant ‘never tried to deny he worked in Lebanon’ or that the form ‘was a mistake.’ Rather, the Tribunal’s view is that the applicant has a wilful disregard for the truth, was prepared to hold back information that he thought may negatively impact his protection visa, and only told the delegate about his employment because he assumed that the delegate may in fact already know this information. It is reasonable to expect that something as basic in the form as whether the applicant was employed in Lebanon would be answered truthfully by the applicant. The Tribunal is satisfied that the fact the applicant declared he was never employed demonstrates the applicant’s flexible approach to the truth.
The Tribunal’s concerns about the applicant’s credibility were compounded by the inconsistent evidence that the applicant gave about the injuries of relatives in Lebanon in 2013. While the applicant accepts that it has been some time since these claimed injuries occurred, the Tribunal does not accept that the applicant would have omitted that his father was injured to the delegate, and that he had two brothers who were injured. Given this inconsistency, the Tribunal’s view is that the applicant memorised what he had written in the protection visa application so he could repeat this to the Tribunal, which would account for the consistency between the written statement and what was given in oral evidence. However, the applicant clearly had not familiarised himself with what was contained in his protection visa application form when he was interviewed with the delegate. The Tribunal does not accept that injures to the father could have been forgotten had they occurred. Nor does the Tribunal accept that tapplicant would forget how many brothers were injured if they were indeed injured. The Tribunal is satisfied that the inconsistency is attributable to the fact that the applicant fabricated his claim that his relatives were injured in the attacks on the mosques. The Tribunal is satisfied that the applicant did so to lend credibility to his protection claims.
Late raising of claims related to applicant’s membership of a particular social group (working-class Lebanese), perceived as wealthy and COVID-19 pandemic
The Tribunal has considered whether ‘working-class Lebanese’ (and variations thereof, such as that based on gender) are a particular social group. According to the Australian Macquarie Dictionary, ‘working-class’ means ‘the class of people composed chiefly of manual workers and labourers; the proletariat.’ The same dictionary defines class as ‘a number of persons, things, animals, etc., regarded as forming one group through the possession of similar qualities; a kind; sort.’ The Tribunal accepts that they are. However, the Tribunal is not satisfied that the applicant has a real risk of serious harm in Lebanon on account of his claimed membership of this particular social group for a few reasons reasons.
The first reason is that there is nothing in the DFAT country report that suggests that people who are identified as ‘working-class’ risk harm in Lebanon. The Tribunal is satisfied that if there was even a suggestion that people were harmed in Lebanon on account of their membership or imputed membership of this group in Lebanon, the DFAT report would have noted this harm.
The second reason is that the Tribunal is not satisfied that the applicant is a member of this particular social group or identified as a member of that particular group by anyone or any group in Lebanon. The applicant worked in a [shop] in Lebanon from 2005 to 2009. The Tribunal does not accept that a person who worked in a [shop] could be ever be considered working-class. Further, the applicant’s evidence to the delegate was that his father worked in [specified industry] in a business with one of the applicant’s brothers. The applicant’s sister is a [Occupation 1]. The Tribunal does not accept that this family could be identified as working-class as to impute membership of the working-class to the applicant.
The third reason is that the applicant’s claim that he faced a real risk of serious harm in Lebanon on account of his membership of that particular group was not raised in the protection visa application, was not raised at the delegate interview, and was only raised for the first time in a written submission dated 12 November 2020. Prior to that, the applicant’s claims were nothing more than the security and economic situation in Lebanon were poor. That submission raised for the first time that the applicant may be perceived as being wealthy. The Tribunal is satisfied that these claims were not raised earlier because the applicant does not genuinely fear harm on account of any of these identifiers. The Tribunal is satisfied that the subsequent submission has tried to categories the applicant’s claims in a context that is simply not there.
The Tribunal is not satisfied that there is a real chance of serious harm to the applicant on account of his claimed membership or identification as a member of the ‘Lebanese working-class’ and variations of that group based on gender, nor is the Tribunal satisfied that there is a real chance of serious harm because the applicant will be identified as wealthy. The Tribunal is satisfied that those claims are fabrication in light of the fact that they were raised for the first time shortly before the Tribunal hearing.
The applicant also raised that he feared harm in Lebanon due to the COVID-19 pandemic. While the Tribunal accepts that there is an explanation for that claim being raised for the first time when the matter was subject to a review application, does not accept that the risks posed by the pandemic relate to the applicant’s race, religion, nationality, membership of a particular social group, or political opinion. Further, even if the applicant was to contract COVID-19 and become ill, and possibly die as a result of this, the Tribunal struggles to accept that illness associated with the COVID-19 pandemic could be considered the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. There is no evidence that the authorities in Lebanon have available medical treatment and are deliberately withholding that treatment in order to cause harm to the population or a segment of the population. To that end, any possible risk that the applicant faces on account of the COVID-19 pandemic is the same risk that any person in Lebanon faces. The Tribunal does not accept that there is a real risk of significant harm to the applicant in Lebanon on account of the COVID-19 pandemic.
Applicant’s health conditions
The applicant’ statement of 11 November 2020 noted that he had [specified heart conditions]. He wrote that his condition is stable, but likely to be exacerbated by the stress associated with his departure. The Tribunal also considers the [specified] Medical Services letter dated [in] February 2019 which noted that the applicant also suffers with depression and panic attacks. The Tribunal notes the earlier letters addressing his medical conditions.
As noted previously, there is no information to suggest that the applicant would be denied medical treatment that would be available to any other person in Lebanon to manage these conditions. Any deficiency in the Lebanese health system would be faced by any other person in Lebanon with the same health profile as the applicant. The Tribunal accepts that the applicant’s health conditions may exacerbate as a result of the applicant’s removal from Australia to Lebanon, however that would be a consequence of the lawful operation of Australia’s migration system whereupon any care that he received in Australia to treat his various medical conditions ceased.
CONCLUSION
The applicant has made a life for himself in Australia. He has an Australian citizen wife and children here. He has many incentives to remain in this country. Australia is a stable democracy with a good economy and sound health and welfare system. It is readily distinguishable from many other countries, including Lebanon, who do not enjoy the same good fortune as Australia. However, that does not mean that Australia owes the applicant protection obligations.
The applicant may well have difficulty finding employment due to the economic situation in Lebanon. The applicant may well not receive the same standard of medical care that he would in Australia. While regrettable, that does not mean that the applicant is owed protection obligations. There is no information to support the proposition that the applicant would not be able to subsist in Lebanon.
The Tribunal acknowledges that the applicant’s wife may or may not go to Lebanon to be with the applicant. The Tribunal acknowledges that the applicant’s children may or may not go to Lebanon to be with the applicant. While the applicant may not wish to be separated from his Australian citizen wife and child, that does not mean that there is a real chance of serious harm or a real risk of significant harm to the applicant if his wife and children remain in Australia (which they are entitled to do).
Given all the concerns that the Tribunal has raised and addressed in this decision record, the Tribunal concludes that what the applicant has done is lodge a protection visa application as a means to achieve the migration outcome that was denied to him through the refusal of the partner visa. To that end, the Tribunal is satisfied that the applicant fabricated the evidence about the alleged injuries suffered by his family members in Lebanon as a means to lend credibility to his claims. He attempted to initially hide his employment in Lebanon as a means to suggest that he could not subsist in Lebanon if he returned there. He withheld details of his previous travel to [Country 1], with his last travel there being 2009, for reasons unknown to the Tribunal. The Tribunal is satisfied that the applicant has a flexible approach to the truth and accordingly, is prepared to put a complexion on facts to achieve a positive migration outcome.
To that end, the Tribunal’s view is that the applicant does not genuinely believe that he will be harmed in Lebanon for any of the reasons he claimed. Rather, the applicant has decided to look at the situation in Lebanon and because it is not comparable to Australia in terms of the economy, health or welfare offered here, he exaggerated his claims as a means of being granted a protection visa. In essence, the applicant’s claims are nothing more than he does not wish to return to Lebanon because the economy, health and welfare systems are not as good as Australia, and he does not want to be separated from the family that he has in Australia. While the Syrian civil war, bombings and other matters which could be described as security concerns in Lebanon are regrettable, if the applicant’s claims about the security situation were to be accepted, it would mean that every Lebanese citizen would be entitled to Australia’s protection obligations. That is simply not the case. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of serious harm amounting to persecution.
Also relevant to the general security situation in Lebanon is the fact that the applicant is taken not to be a real risk of significant harm if the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, lack of general security and the instability the applicant claims to fear are faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of lack of general security and instability.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Lebanon on account of his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Lebanon, there are substantial grounds for believing that there is a real risk that applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
REQUEST FOR TRIBUNAL TO RAISE APPLICANT’S CASE WITH MINISTER - s.417
Section 417(1) provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute a decision made by the Tribunal under s.415 for a more favourable decision. Section 417(7) makes it clear that the Minister does not have a duty to consider whether to exercise this power whether the Minister has been requested to do so by the applicant or by any other person, or in any other circumstances.
The Tribunal does not believe it is appropriate to raise this matter with the Minister to consider exercising powers under s.417. The applicant has a migration agent, and it appears that the documents for a request for the Minister to intervene under s.417 (if the Tribunal upheld the refusal decision) are already prepared. In the Tribunal’s judgment, the applicant can raise this request to the Minister directly.
Nathan Goetz
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.
…

[2021] AATA 629

28 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction