1911700 (Refugee)

1911700 (Refugee) [2021] AATA 5310 (17 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1911700
COUNTRY OF REFERENCE: Lebanon

MEMBER:Rodger Shanahan
DATE:17 December 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 December 2021 at 4:37pm
CATCHWORDS
REFUGEE – Protection visa – Lebanon – Shi’a – didn’t support Hizbullah – applicant had lied to the Tribunal reviewing the refusal of his visitor’s visa– credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5AAA, 36, 65, 424, 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Lebanon, applied for the visa on 17 February 2017.
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 (Cth) (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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following statement in support of his claim:
I consider myself lucky to escape death at the hand of Hezbollah even though I am Shia I was terribly harmed by them. In October 2016 there was an argument with [Workplace 1] employees where I am responsible and in charge of them because I am secular and non religious person. On [date] October 2016 on or about [time] my phone rang. It was a private number asking for me. I said yes I am [name deleted] how can I help you. The caller said you stole a motor bike which belongs to Hezbollah and there are two pistols and important documents for Hezbollah in the motorbike. I reacted as it was a joke by one of my friends who want to joke with me and I said "who is speaking I have no time to talk now". And then I closed the phone. The same caller rang me again after 20 minutes and said don't hang up and asked the same question. I said to him "don't contact me and I have no time for joking. I am at work" and I closed the phone. Another call came for the third time and threatened me, I swore at him and closed the phone. After approx. 5 minutes three black cars [and] 8 armed people came out of the cars asking for [me]. They took me to an unknown place and blindfolded me.
After approx.15 minutes they took me to the unknown place and put me in a room and took off the blindfold. There was a man behind the desk questioning me for approx. one hour. I denied any allegations and I told him I want to go back home to my parents who expect me to be home by now. At the time he pressed on a button and four people came in blindfolded me again, took me to another room and started hitting me with sticks, plastic hose, for about half an hour then stopped for one hour. Then asked me if I can say something and confess. Then they hit me again, then they left me inside for half an hour and when they came again I said to them I wish to talk to the Manager and wish to say the truth. The Manager came and I said to him treat me or accept me as a brother or son. I have never done anything wrong and that man hit me with his shoes on my mouth.
On or about [time] my parents got worried as I was late coming home. My father came to my workplace and started screaming and swearing because he knew that I was taken by Hezbollah and apparently one of the in charge of Hezbollah came and said to my father, "your son is with us". Then I was taken to where my father was, in front of the shop, and my father saw the bruises on my face and he started screaming and said you are the satan and not Hezbollah. And my father said "you take me and hit me if you are men" then they disappeared and left me. My father and I went to a Hezbollah office where we can lodge a complaint and they saw the bruises and torture and promised to deal the offenders.
On [date]/1/2017 it was a [specified day], on my way home, I was stopped by [a] car, 4 people came out of the car masked, at [an area]. They hit me badly and threatened to wipe me out and left me on the ground and ran away. I suffered a lot and reported the matter and I attach the evidence sent to me by DHL and my father especially does not want me to go back because my life is at risk. I also submit medical report in support of what happened to me.
I was very lucky that I was granted a visa and now I ask the Department to interview me because I am a refugee and I have been badly hurt and my life is at risk if I return back to Lebanon. I am scared that if I return to Lebanon the same people who hurt me will kill me this time because I do not like and support Hezbollah and I have suffered at their hand and I reserve my rights to talk about what happened to me if the Department, I hope, will give me the opportunity to explain my situation. I have a lot to say. I am still young and I am very lucky to escape to Australia and now my father in Lebanon is continuing to deal with my matter and my pain is still there psychologically and physically.
AAT Hearing
The applicant claimed that if he returned to Lebanon he would be killed by Hizbullah because he didn’t believe in God and because he was Shi’a and didn’t support Hizbullah. He had no other claims. It was put to him that he had claimed to have suffered from psychological harm and was asked if he was under treatment or had any record of any such treatment in Australia. He said he had not sought any help but he was psychologically scarred.
He arrived in Australia in February 2017 and was asked why he had never sought mental health treatment in that time and that it was unlikely the Tribunal could place much weight on a claim of being psychologically scarred when he had been in the country for nearly five years without seeking help. He said that he agreed but he was not feeling sufficiently well to see someone because of the stress. He had seen a doctor for his eye and his back. He was asked why he didn’t mention his mental health issues to his doctor who would then refer him to a specialist – he claimed he missed doing this but the Tribunal needed to see his way of thinking as he had so many things going on in his life.
Asked why Hizbullah would kill him, he claimed that he used to work at a [Workplace 1] [in] [Beirut] from 2010. He was the manager there and was very happy there. In 2016 there was a worker [Mr A] who he was friendly with as they all were in the workplace. One day [Mr A] started a deep discussion about the war in Syria and asked him why the applicant was [age] and hadn’t yet joined Hizbullah.
The applicant said that he didn’t believe in God or Hizbullah and that because he was killing people [Mr A] would go to hell rather than heaven. [Mr A] was shocked at this and the applicant cut the discussion short. The applicant regretted what he said as soon as he said it. After a short period the phone rang at work and a man asked if he was [name deleted] and then told him about a motorbike in which there was a gun and papers for Hizbullah and he needed to collect it.
The applicant hung up but they rang twice again asking the same question – they wanted the bike and things back. He cursed them and Hizbullah. The applicant thought they were joking as they thought he had the motorbike. This was on [date] October. In 10 minutes eight boys came into the shop and told them to come with him. He was blindfolded and taken in a car for half an hour. When the blindfold was taken off he saw one person in an office and he was questioned about the motor bike.
He denied knowing anything about a motorbike but he was questioned for an hour. He was agitated by the end and asked the questioner to help him or save him. This person rang a bell and four men came in and took the applicant away to another room. He was hit in a bad way after 15 minutes then they came back and asked the same question about the motorbike. Once he denied any knowledge they beat him again with a hose and a cane. They went away for 15 minutes and then the same thing happened again.
When they came back again he asked to see the boss and was taken to a person and he begged him to help the applicant as he hadn’t done anything. This person then kicked him in the face. About [time] his parents began to call him but nobody answered – he was always at home by [time]. His father came to the shop and asked about the applicant and some workers told him about the applicant being taken away by Hizbullah. His father waited but nothing happened and he began screaming for his son outside the [Workplace 1] – a Hizbullah member came and assured him that his son would come back.
Half an hour later the applicant was returned to the shop blindfolded – he heard his father’s voice and pushed his way out of the car. His father asked if he had been hit and he confirmed he had. His father began abusing Hizbullah loudly. He confirmed that he had been beaten by four people – he agreed that he was in great pain. Asked if he went to hospital, he claimed that there was a doctor’s surgery next to their house and the doctor gave him tablets and cream. It was put to him that he had been beaten for hours by four men and kicked in the head. It was very surprising the doctor did not take him to hospital or that he sought hospital treatment himself. He would have needed examination for internal injuries or x-rays.
He said that in Lebanon one couldn’t just go the hospital like Medicare and if one didn’t have a letter from Amal or Hizbullah then one couldn’t do anything. It was put to him that there are public and private hospitals with emergency departments in Beirut and he could have gone to any of these. He claimed that his mind wasn’t working properly and his father just took him to the doctor. Asked if he had any photos of his injuries given he must have been heavily bruised given the nature of the beating, he claimed that he had a photo of his eye.
He had a medical report from a doctor reciting the injuries he had. Asked if it was the one he had given the Tribunal, he said it was. It was put to him that the note didn’t say much and he said that this was what Lebanon was like. He went to [Mr B]’s office (the [position] of Hizbullah) and said he made a complaint and took off his shirt and showed them the injuries. He also gave them the doctor’s note but showed no photos to them as he had none.
He took a day off work but then returned and everything was normal but Hizbullah never forget and they know everything. A few days later he was returning from work on his motorbike and about [time] when he was stopped by a couple of people in a car who began beating him even worse than he was beaten previously. He lost consciousness and then some girls and guys came to help him. They gave him water and two boys took him and his motorbike home. There were four people in the car and they beat him for 10 minutes.
This occurred [date] January 2017 around [time]. Asked if it was light or dark, he claimed that it was totally dark but it was summer. He then said it wasn’t summer as it was a long time ago. It was put to him that it couldn’t have been summer and he said it was winter. Asked if he was taken to hospital, he said that his parents attended to his needs. It was put to him that given the nature of the beating in such a public place it was strange that people didn’t take him to hospital. He said again that things were very hard in Lebanon and he had to pay $300 if he was taken to hospital so he decided to do things the easy way. He said that he was very stressed at the time.
He was taken to his parents’ house and his father took him to [Mr B]’s office. It was put to him that this was around three months after his first beating and he agreed. The office apologised and said they would get this man and this was not what Hizbullah did. They promised to call again in two days but they never called him back. His father called them and they said the sheikh was in Iran and would be back soon.
Asked what injuries he had after the second beating he said that he didn’t know but his brain was still shaking and felt that he may have had concussion. It was put to him that he had been in Australia for years and had not sought medical attention and he had no medical training so he could not self-diagnose concussion. Asked again what injuries that he had, he said that he was beaten in a way not to leave any marks. He said there was no blood but he had bruises all over his body, but he had no photos of this.
Asked if he sought medical attention he said that he just went back to the doctor next door to them. The doctor said he should go to hospital but the applicant said he just wanted it fixed a quick and easy way. The applicant went to [Mr B]’s office both times. He also went to the police but he knew they would not to do anything – he was just passed from office to office and finally told them not to write Hizbullah on the form but just to give him the letter without mentioning them.
He agreed this was the letter that came with his application – it was put to him that country information indicated that such forms could be easily fabricated so it was unlikely much weight could be given to it. He said he went to the large police station and this meant that the form couldn’t be easily forged. He was asked why Hizbullah chose to beat him in such a public place as the main traffic roundabout and he said that it was because he was Shi’a. He had been asked to join them many times but he had refused.
It was put to him that Hizbullah wanted people who shared their ideology to join them, they didn’t press gang people. It was very strange then that they would beat him if they wanted him to join them. He said this was wrong and half the people in Hizbullah had bene forced to join them. He was asked to provide country information to support his claim as it ran counter to the available country information. He said that he had criticised Hizbullah in the [Workplace 1] and therefore was being punished for this. It was put to them that the applicant had no real influence so wasn’t a threat to them so it made no sense they would pay him this amount of attention – if he had influence in the broader community then they may target him. He was asked to provide country information that indicated Hizbullah would target someone with a profile such as his.
He still had family in Lebanon, his father was [age] and his mother [age] and they were both fine. He came to Australia on a visitor’s visa – it wasn’t approved first time. They tried again and he was accepted. He had no idea why he was refused the first time. He was asked again why he was refused a visa and he again said that he didn’t know why. He claimed that his lived experience was different to how Hizbullah was portrayed.
He was then told about s 424AA and it was put to him that his brother lodged an application for a visitor’s visa on 9 December 2015. It was refused on 28 January 2016 because there were concerns that he would not return to Lebanon because of his profile. He was interviewed along with his brother by the Tribunal on 25 November 2016 after they appealed the decision. He undertook to tell the truth ‘100 per cent’ and his brother said that the applicant would return to Lebanon ‘100 per cent’. By this stage he had already allegedly been taken by Hizbullah and beaten. He was asked by the Tribunal if there were problems where he was living in Beirut and he said that the Shi’a weren’t targeted and there weren’t problems there since the borders had been secured.
He said he didn’t want to live outside of Lebanon and that his parents had health problems and that he had to look after them as he was the man of the house, and he went on to list the parents’ medical conditions. He said he lived in a quiet area where he had no problems. He said that religion had never caused him a problem. The Tribunal had concerns that what he claimed here today was at odds with what he had told the previously constituted Tribunal, and that he had fabricated the claim he made for protection with respect to Hizbullah and that he always intended to stay in Australia once he arrived.
He claimed that he said what he did on the telephone because he was going to die if he stayed in Lebanon. He did not like Hizbullah and he knew they were going to finish him. He was asked why he told one story to get a visitor’s visa and then another to the present Tribunal. He agreed that he had lied but said that he did this in order to leave Lebanon. It was put to him that the timing was also coincidental. He was given a positive decision regarding his visitor’s visa on 7 December 2016 and between this and his coming to Australia he claimed that he was beaten a second time, yet there was no strong medical evidence that this occurred.

The Tribunal was concerned that he wanted to join his two brothers in Australia in a country with a much stronger economy and once he came to Australia he did apply for protection. He claimed that he was married now and he could get a different visa but he wanted this visa because he was afraid that he would be killed in Lebanon. He was married 18 months ago and it had been registered in Australia – he had a girlfriend in Lebanon but she was still in Lebanon and was just a friend now. Asked if anything had happened to his father for abusing Hizbullah, he claimed that because he was an old man they allowed him to talk.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on [date] February 2017 on a family sponsored visitor’s visa that was granted after originally having been denied partner visa and then applied for protection on 17 February 2017. He is a [age] year-old Lebanese male who has become married since arriving in Australia. He claimed that if he returned to Lebanon he would be killed by Hizbullah because he didn’t believe in God and because he was Shi’a and didn’t support Hizbullah.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account the applicant’s claim in his protection visa application statement that he had suffered psychological harm however I do not accept this to be the case. He provided no medical evidence whatsoever in support of such a claim, either from Lebanon or in the more than four years since he has been in Australia. His responses were lucid and appropriate to the question asked and I am satisfied that he was not suffering from any psychological condition that impacted on his ability to give evidence.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness.
Credibility
The Tribunal notes that the applicant was refused a visitor’s visa on 28 January 2016 on the basis that the Department believed he would not return to Lebanon. That decision was appealed and he was interviewed by telephone on 25 November 2016 by the Tribunal. He had made an undertaking to tell the truth before he was interviewed and during the telephone call he said that he lived in a quiet area where he had no problems and that religion had not caused him any problems. He also outlined a list of health problems suffered by his parents and claimed that he would return to Lebanon because he had to look after them.
He was granted a visa and applied for protection a week and a half after he arrived in Australia. During the hearing however he claimed that his parents lived in Lebanon and were fine, and he also claimed that he had been kidnapped and severely beaten by Hizbullah a month prior to the telephone interview in which he claimed he experienced no problems in his area. The applicant admitted to the presently constituted Tribunal that he had lied to the Tribunal reviewing the refusal of his visitor’s visa in order to get a visa to Australia.
The present Tribunal notes the applicant’s admitted willingness to make false statements in order to achieve a positive migration outcome. The Tribunal also accepts that people may believe they have no other option than to be untruthful in visa applications if they believe that it is the only way that they can secure an entry permit to a refugee resettlement country. Given the implausibilities in the applicant’s claims however, I am not satisfied that this is the case in this instance. Therefore I lend some weight to the fact the applicant previously provided false evidence regarding his need to return home in support of his application for a visitor’s visa in assessing his overall credibility.
Interaction with Hizbullah
Whilst I accept the applicant was employed in a [Workplace 1] in Beirut, I do not accept that the applicant ever got into an argument with an employee about religion, the war in Syria or why the applicant hadn’t joined Hizbullah, that he openly spoke badly about Hizbullah, that he received a phone call from an unnamed person who talked about collecting a motorbike with guns and papers in it, that he was subsequently detained by Hizbullah operatives in two cars, questioned again about the motorbike or badly beaten on two occasions by Hizbullah operatives. Nor do I accept that the applicant’s father came to the [Workplace 1] looking for the applicant and screaming about Hizbullah, or that they made complaints to Hizbullah via [Mr B]’s office or that they made a complaint to the police about Hizbullah.
To begin with, country information indicates that Hizbullah will only revert to direct threats, including of violence, if they feel their power is genuinely threatened. They will first subject critics to societal pressure or persuasion then they may socially and economically marginalised through the denial of Hizbullah-provided services or blacklisting of their businesses.[1]
[1] DFAT Country Information report – Lebanon, 19 March 2019, p 24.
Yet the applicant claims that, after a single negative remark about Hizbullah to a fellow employee in a [Workplace 1], Hizbullah decided to punish him to such an extent that they sent eight men in two cars and took him away to a secret location where he was beaten severely. Two months later Hizbullah then sent another car to intercept him as he returned home from work and four men publicly beat him.
Either one of these actions is inconsistent with available country information – the combination of both actions makes the story so unlikely as to be completely implausible, particularly given the applicant lacks any profile and hence has no ability to genuinely threaten their power. I also note that there are no photos of the extensive injuries he received nor did he receive any hospital treatment which again appears implausible. I do not accept that he simply went to the local doctor who gave him tablets and cream – given the nature of the injuries that he claimed were readily apparent it is reasonable to believe the doctor would have suspected possible internal injuries and sent him to hospital or called for an ambulance to take him there. Country information indicates that significant bruising and loss of consciousness are both signs of possible internal bleeding and the patient should be treated in a hospital emergency room.[2]
[2] Abdominal Pain & Internal Bleeding From Injury: Symptoms, Treatments (webmd.com), accessed 16 December 2021.
I do not accept that he didn’t go to hospital because he would have needed a letter from Amal or Hizbullah, there was no Medicare and he would have had to pay $300 to go to hospital. Available country information indicates that ambulatory services are provided free of charge by charities such as the Red Cross, or the Civil Defence,[3] and that hospitalisations are covered by health insurance (often linked to a person’s employment) or by the Ministry of Public Health for those not insured.[4] Given this, it lacks credibility that the applicant would not have gone to an emergency department, or that he would not have been directed to go by his father or the doctor.
[3] ACEP // EMS System Lebanon: A System Challenged by A triple Crisis: Financial Collapse, COVID19 Pandemic and Beirut Ammonium Nitrate Explosion, accessed 6 December 2021.
[4] Microsoft Word - alc_intra1_cp_lebanon.doc (who.int), accessed 6 December 2021.
I have taken into account what the applicant claims are letters from doctors he saw post the January beating. One is handwritten and the other typed. I lend them no weight as they could have been easily fabricated, the applicant never mentioned that he saw two doctors or why, and neither of them appear to have recommended any treatment, with the second one simply stating the patient ‘is in the healing phase’ and recommends some time off work.
I have also taken into account what he claims was a statement he made as part of a police report into the alleged January assault however I also lend this no weight. All that was provided was the translation, not the original and it is impossible for me to give any weight to what was essentially an uncorroborated statement when the Tribunal cannot be confident that it was ever actually made to the police. The other police document provided was simply a photocopy of a Lebanese police clearance certificate and its relevance to his claim was not apparent or made clear.
I have also taken into account country information provided by the applicant post-hearing in support of his claim however I lend it little weight. The information either related to attacks by Hizbullah on high profile critics such as well-known journalists or the assassination of PM Rafiq Hariri, or they were about secret prisons by the Saudi-owned al-Arabiya. A number of youtube videos were also provided but they either reflected the incidents referred to in the written media reports or they related to anti-government protests in Beirut. There was no explanatory statement advising the relevance of these pieces of information to the applicant’s case. And the applicant does not appear to have noted that the issue is not whether Hizbullah targets critics – the Tribunal accepts that it does. The issue is why they would target the applicant who has no profile. As a result I place more weight on the information available to the Tribunal, the applicant’s credibility and the implausible nature of the claim to find that the applicant’s claim has been fabricated.
I also don’t accept that the applicant will be killed because he doesn’t believe in God or because he was Shi’a and hadn’t joined Hizbullah. Country information indicates that Hizbullah does not compel people to join the group and that they seek only those ideologically committed to their cause.[5] The member also has a PhD in Lebanese Shi’a political development and this accords with my knowledge and experience.
[5] ‘Lebanon: Recruitment practices of Hezbollah’, Immigration and Refugee Board of Canada, 4 November 2013.
I am willing to accept that the applicant does not believe in God, however I do not accept that there is a real chance that the applicant will face serious harm because of it. He claimed that Hizbullah would target him because of this however he offered no evidence to support this claim, nor has the Tribunal any evidence available to it that would support the claim. I also note that the applicant in his interview with the previously constituted Tribunal that religion had not caused him any problems.
Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was, is or would be of any interest to Hizbullah, or has been targeted for beatings by them, refused to join them or that they would target him because he does not believe in God, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
Therefore, I do not accept 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 suffer significant harm.
CONCLUDING PARAGRAPHS
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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 5310

17 December 2021

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