1932525 (Refugee) - [2020] AATA 5544

1932525 (Refugee) [2020] AATA 5544 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:1932525

COUNTRY OF REFERENCE: Lebanon
MEMBER:Jason Pennell
DATE:18 December 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 18 December 2020 at 4.22pm

CATCHWORDS
REFUGEE – protection Visa – Lebanon – Federal Court remittal – complementary protection criterion – subject of an order for death penalty –ordeal in prison – cruel and inhuman condition of the prison – legitimacy of the Order – involvement with members of an extremist organisation – necessary intent to cause significant harm – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 65, 411, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

AMA15 v MIBP [2015] FCA 1424
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZGIZ v MIAC (2013) 212 FCR 235
SZTAL v MIBP (2016) 243 FCR 556
SZTGM v MIBP [2017] HCA 34

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).
The applicant who claims to be a citizen of Lebanon, applied for the visa on 15 November 2012 and the delegate refused to grant the visa on 18 May 2015.
The applicant applied to the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (the First Tribunal), for review of the delegate’s decision on 20 May 2015. The First Tribunal, differently constituted, heard the applicant’s claims for protection over three hearings on 21 November 2016, 20 April 2017 and 23 January 2018 and affirmed the decision of the delegate not to grant the applicant a protection visa on 20 July 2018.
The applicant filed an application for judicial review to the Federal Circuit Court of Australia (FCCA) on 2 August 2018. The FCCA dismissed the application for judicial review of the First Tribunal’s decision [in] March 2019.
The applicant then made an application to the Federal Court of Australia (FCA). The FCA ordered that the orders of the FCCA be set aside and the matter remitted to the Administrative Appeals Tribunal for determination according to law.[1]
[1] [Details deleted].
The applicant appeared before the Tribunal on 15 June 2020 and 3 December 2020 to give evidence and present arguments. The Tribunal hearing was…

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 1932525 (Refugee)

Details

AGLC: 1932525 (Refugee) [2020] AATA 5544
Case: [2020] AATA 5544
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a delegate's decision to refuse the applicant, a citizen of Lebanon, a Protection visa. The applicant had applied for the visa in 2012, and the delegate refused it in 2015. Following an unsuccessful review by the First Tribunal and subsequent judicial review proceedings in the Federal Circuit Court and the Federal Court, the matter was remitted to the AAT for determination according to law.

The central legal issue before the Tribunal was whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, the applicant faced a real risk of suffering significant harm. This assessment was to be made in relation to the complementary protection criterion under section 36(2)(aa) of the *Migration Act 1958* (Cth), given that the applicant's claims were confined to this ground due to the operation of section 48A of the Act and relevant case law. The Tribunal was required to consider the definitions of "significant harm" and the circumstances under which a real risk of such harm would not be found, as outlined in section 36(2A) and (2B) of the Act.

The Tribunal reasoned that the applicant's claims, which included allegations of torture, cruel and inhuman treatment during detention by Lebanese intelligence, a subsequent shooting incident, and a death sentence, warranted further consideration under the complementary protection provisions. The Tribunal accepted the applicant's Lebanese citizenship and noted that he did not have a right to reside in another country, thus not being excluded from protection obligations. While the Tribunal acknowledged the applicant's submitted evidence, including a Lebanese Judicial Council document and a statement from his former attorney, the decision to remit the matter indicates that a full determination of the applicant's claims under section 36(2)(aa) had not yet been completed.

The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(aa) of the *Migration Act*.

Orders