1731938 (Refugee) - [2022] AATA 4881

1731938 (Refugee) [2022] AATA 4881 (31 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731938
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Shahyar Roushan
DATE:31 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that [Mr A] satisfies s 36(2)(a) of the Migration Act.
The Tribunal affirms the decision not to [Mr B] a Protection visa.

Statement made on 31 October 2022 at 11:57am
CATCHWORDS
REFUGEE – Protection Visa – Lebanon – Sunni Muslims – fear harm from Shi'a Muslims, Alawis and supporters of the Syrian regime– anti-Assad political views – membership of the particular social group – people with mental illness or mental health disorders – there is a real chance that applicant will be seriously misjudged and subjected to physical harassment, mistreatment, violence or threats of violence – State protection is not available to the applicant – lack of general security, sectarian conflict and political instability is faced by the population generally – strong compassionate circumstances – Referral to the Minister – decision under review remitted for the first named applicant – decision under review affirmed for the second named applicant

LEGISLATION
Migration Act 1958, ss 5H, 36, 46, 65, 91, 351, 417, 499
Migration Regulations 1994, 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
Background

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 applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are brothers and nationals of Lebanon. The first named applicant, [Mr A], is [age] years old, and the second named applicant, [Mr B], is [age] years old. Both applicants were born in Ayat Tripoli, North Lebanon. Their parents and two sisters [are] Australian citizens residing in Australia. They also have a brother [who] resides in [Country 1].
The applicants arrived in Australia separately in March 2002 as dependents on a Temporary Business Long Stay (Class UC) (Subclass 457) visa held at that time by their mother, Ms [C].
On 3 September 2004, [Ms C] lodged an application for a Protection visa and included her husband, [Mr D], and the applicants as members of her family unit. On 2 December 2004, a delegate of the Minister refused the application and, subsequently, the then Refugee Review Tribunal (RRT) affirmed the delegate’s decision. Both the Department and the RRT assessed [Ms C]’s claims against the criteria under s 36(2)(a) of the Act and the remaining family members were considered under s 36(2)(b)(i) of the Act as members of [Ms C]’s family unit.
On 13 May 2014, a subsequent Protection visa application was lodged by the applicants’ father. In this application,…

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 1731938 (Refugee)

Details

AGLC: 1731938 (Refugee) [2022] AATA 4881
Case: [2022] AATA 4881
Decision Date: 31 October 2022

CaseChat Overview and Summary

This matter concerned a judicial review of a decision by the Refugee Tribunal concerning protection visa applications made by a father and his two sons. The applicants, who are Sunni Muslims from Lebanon, claimed they feared harm from Shi'a Muslims, Alawis, and supporters of the Syrian regime due to the father's anti-Assad political views and his past persecution by Syrian forces. They also raised concerns about the general security situation, sectarian conflict, and political instability in Lebanon, arguing that state protection was unavailable. The Federal Circuit Court had previously remitted the matter to the Tribunal for reconsideration.

The primary legal issue before the court was whether the Tribunal had erred in finding that the applicants did not have a well-founded fear of persecution or a real risk of harm if returned to Lebanon, thereby failing to satisfy the criteria for a protection visa under section 36(2)(a) and section 36(2)(aa) of the Migration Act 1958 (Cth). Specifically, the court had to determine if the Tribunal correctly assessed the risk of harm based on the applicants' religion, political opinion, and potential membership in a particular social group, as well as the availability of state protection.

The court found that the Tribunal had erred in its assessment of the risk of harm to the first named applicant, remitting his case for reconsideration. However, the court affirmed the Tribunal's decision in relation to the second named applicant, finding no error in the Tribunal's conclusion that he did not satisfy the criteria for a protection visa. The court's reasoning appears to have distinguished between the individual circumstances and the specific risks faced by each applicant, despite their familial relationship and shared claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

[In] June 2017, the applicants applied to the then Federal Circuit Court for judicial review of the first Tribunal’s decision. [In] December 2017 the Federal Circuit Court remitted the matter to the Tribunal by consent to be reconsidered and determined according to law. CLAIMS AND EVIDENCEProtection visa application In the Protection visa application lodged by the applicants’ father in May 2014, [Mr D] used the pronoun ‘we’ to outline aspects of the protection claims prompting his application. The Tribunal understands this to refer to the collective fears of [Mr D] and members of his family, including the applicants. [Mr D] stated in the application form that they had left Lebanon to flee from the threat of ‘unwarranted governmental harassment and intimidation, war and violence’, which was worsening and resulting in citizens dying in Lebanon. He said they fear harm from Shi'a Muslims, Alawis and supporters of the Syrian regime in Lebanon. The escalation in the conflict Syria is impacting Lebanon and the family fears being subjected to ‘violent clashes, war… cruel and inhuman treatment and the arbitrary deprivation [of their lives]’. It was stated that these risks extend to all locations in Lebanon and the authorities are unable to provide protection. In written submissions to the Department by the family’s then representative, it was stated that the Syrian civil war has aggravated tensions between Sunnis and Shi'a’s, and there have been violent clashes between Sunnis and Alawis in Tripoli, as well as clashes between Sunnis and Shi'as in other parts of Lebanon. ‘All’ Sunnis in the north have become targets, with every Sunni being associated with extremist Sunni militias and Sunni youths being targeted by the Lebanese Armed Forces. Other parts of Lebanon are also unsafe as Shi’as dominate the south and Christians dominate the government. The family would struggle to find accommodation in a safe area due to the influx of Syrian refugees. The representative further submitted that [Mr D] was subjected to physical and psychological harm by the Syrian forces during their occupation of Lebanon in the 1980s. His shop was attacked and bombed twice by the Syrian forces due to his anti-Assad political views. He was imprisoned, interrogated and tortured for expressing disapproval of the Syrian regime and his adherence to Sunni Islam. As an anti-Assad Sunni Muslim, [Mr D] is at high risk of experiencing harm if he returned to Lebanon. It was further submitted that there is a real risk that his two younger sons (the applicants) will also be harmed as a result of their father’s past. Only [Mr D] provided oral evidence to the delegate at an interview held on 23 October 2014. Review applicationThe first Tribunal In a letter to the first Tribunal, dated 24 September 2016, the applicants’ sister, Ms [E] disagreed with the delegate’s reasons in refusing the application. She referred to a number of news reports and articles to highlight the security situation, the rise of Sunni Islamic radicalism, sectarian conflict and the presence of ISIS in Tripoli at that time. [Ms E] stated that ‘the deteriorating security situation in Lebanon, the strong influence of radical Islamic groups on Tripoli and the north of Lebanon, the lack of Sunni Muslims trust in the Lebanese forces to protect them as well as the influence of militant groups on Sunni male youth clearly shows the danger that [Mr D] and his family may encounter if they are forced to return to Lebanon.’

Decision

Reasons for decision

The Tribunal has considered the submissions, letters and the oral evidence provided in support of [Mr B] by his sisters and his mother, expressing concerns for his welfare. The Tribunal has addressed these concerns in its reasons, above. The Tribunal appreciates and understands the family’s general concerns for [Mr B] should he be removed to Lebanon. However, these general concerns do not give rise to a real chance or a real risk of serious or significant harm. Conclusions After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Lebanon for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). The Tribunal has determined that [Mr A] satisfies the criterion set out in s 36(2)(a). The evidence provided to the Tribunal points to the emotional and financial interdependence that exists between [Mr A] and [Mr B]. The Tribunal accepts this evidence, as well as the fact that they reside in the same household. On this basis, the Tribunal is prepared to accept that [Mr B] is a member of [Mr A]’s family unit as defined by the Act. However, [Mr B]’s application based on membership of family unit under the criteria in s 36(2)(b) was considered in his previous Protection visa application. Consequently, the Tribunal is unable to consider the s 36(2)(b) criteria again.

Ratio Decidendi

Legal Principle Established

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