2010249 (Refugee) - [2020] AATA 3638

2010249 (Refugee) [2020] AATA 3638 (31 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2010249

COUNTRY OF REFERENCE: Palestinian Territories (West Bank)
MEMBER:Shahyar Roushan
DATE:31 August 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 31 August 2020 at 2:16pm
CATCHWORDS
REFUGEE – protection visa – Palestinian Territories (West Bank) – Federal Circuit Court remittal – particular social group – homosexual male – individuals who have contracted a sexually transmitted disease – treatment for mental illness – family honour – state protection – Refugees Convention Article 1D – persons receiving protection or assistance from another United Nations agency – protection ceased – United Nations Relief and Works Agency (UNRWA) – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91, 424
Migration Regulations 1994, Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Minister for Immigration and Multicultural Affairs v WABQ (2002) 121 FCR 251
WACG v MIMA [2002] FCAFC 332
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
BACKGROUND, CLAIMS AND EVIDENCE
The applicant is [age] years old. He is Muslim and of Arab ethnicity. He was born in the West Bank and formerly resided at a single address at [a named] Camp, located in the West Bank, Palestinian Territories.
The applicant travelled to Australia on a valid passport issued by the Palestinian Authority. He arrived [in] February 2014 and applied for a protection visa on 12 March 2014.
Protection visa application
Protection claims
In his protection visa application, the applicant essentially claimed to fear harm from the ‘Jewish people’, ‘extremist Jewish groups’ and the Israeli army. He also claimed to fear harm at the hands of his cousins and ‘other specific people’ due to a financial dispute. He claimed that he was falsely accused of assault by his cousin and was imprisoned for two or three days.
In a supporting statement provided to the Department on 9 October 2014, the applicant provided the following additional details.
He had always lived in Palestine, where his parents and siblings continue to reside. He attended a school run by the United Nations Relief and Works Agency (UNRWA), but left school in Year [number].
He witnessed regular fighting between the Palestinians and Israelis. One of his cousins was shot and killed by Israeli soldiers and two of his father’s cousins were killed by the Israeli army because they were Palestinian. In 2010, one of his brothers was shot and injured by Israeli soldiers and, subsequently, he (the applicant) was attacked by three Jewish settlers, sustaining severe injuries to his hands.
He and members of his immediate family were also attacked by his [relatives] on numerous occasions as a result of a dispute over inheritance.
The interview
The applicant attended a Departmental interview on 27 May 2015. The interview was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s then representative was also present at the interview. Where relevant, the applicant’s oral evidence to the delegate is referred to below.
At the interview, the applicant submitted to the Department a number of documents, including copies of an ID card and a driver’s licence issued by the Palestinian Authority and a UNRWA Registration Card, issued in [2006]. He also submitted medical evidence in relation to his father, evidence in support of his claims relating to the family dispute and evidence in support of his brother’s treatment by the Israeli authorities.
Post-interview submissions
On 24 June 2015, the applicant’s representative submitted a letter, dated 13 March 2014, from [a named hospital], stating that the applicant had presented to the emergency department [in] July 2012 with ‘multiple cut wound[s]’ in his [hand] and forearm, and ‘underwent surgical interventions for exploration and reconstruction’.
On 31 July 2015, the applicant’s representative made a submission, stating that the applicant fears harm in the Palestinian Territories on the basis that he had contracted syphilis. It was submitted that the applicant would be considered an ‘infidel’ and viewed as having contravened Islamic Law. The representative stated that the applicant would be subjected to harm from his family, the authorities and the wider community. In addition, the representative submitted that, as part of the particular social group of ‘individuals who [have] contracted a sexually transmitted disease’, the applicant would be ostracised, persecuted, and discriminated against, for ‘contravening societal norms’. It was further submitted that the applicant is fearful that his family would believe he has ‘tarnished their honour and reputation’, and that he would not be able to live away from his family due to the general security situation in Palestine.
The applicant’s representative submitted a letter, dated 23 July 2015, from [Health Service 1], stating that the applicant had attended the clinic for treatment of syphilis. A copy of a ‘Syphilis Cumulative Report’, dated [in] May 2015, was also attached to the document. She also forwarded to the Tribunal a Statutory Declaration, declared by the applicant on 28 July 2015, providing the following additional information.
He contracted syphilis in mid-2014 and was referred to [Health Service 1] where he is currently receiving treatment.
He fears that he would be subjected to serious harm by the authorities and members of his community as he has contravened religious and societal norms by having a relationship outside of wedlock. He claims he will be viewed as an infidel and would not be allowed to marry. If he does get married, the girl’s family would kill him once they find out about his diagnosis.
It would be highly evident that he has contracted syphilis as he has had cold sores around his mouth for a number of months. He would not be able to seek medical assistance in the West Bank as he would be reported to the authorities for having a sexually transmitted infection. He fears harm from his family, the authorities, and the community at large.
The applicant explained that he had not raised this claim previously because he was embarrassed and concerned that he would be treated adversely. He is now raising the claim after receiving advice from his case worker at [a welfare agency].
The delegate’s decision
On 21 August 2015, a delegate of the Minister refused the applicant’s protection visa application. Whilst the delegate accepted the applicant’s claims, he found that there was no real chance or a real risk that he would face serious or significant harm in the West Bank for any of the reasons he had provided.
Review application
The applicant applied for a review of the delegate’s decision.
On 28 April 2017, the applicant’s then representative made a submission to the Tribunal, requesting that the applicant’s case be given priority for a hearing. The representative stated that the applicant has experienced physical and psychological trauma and has been receiving counselling since 2014. He was subsequently referred to a clinical psychologist, [Psychologist A], in 2015 and was diagnosed with ‘severe anxiety disorder with features consistent with generalised anxiety disorder together with significant depressive symptoms which qualify for a diagnosis of major depressive disorder.
The representative submitted a letter, dated 1 April 2017, by [Psychologist A] commenting on the impact of delays in reviewing the delegate’s decision on the applicant’s mental health. [Psychologist A] stated that the applicant had been reviewed on multiple occasions between 18 June 2016 and 18 March 2017 and had consistently presented with symptoms of anxiety, ongoing depression with suicide ideation and self-harm. In addition, [Psychologist A] stated that the applicant was concerned about his syphilis and the possibility that this would be discovered if he were to return to Palestine. [Psychologist A] stated that the applicant’s symptoms ‘have worsened substantially over the last three to four months’ and that this related to the long delays in the processing of his protection visa application as well as delays in the review process.
The applicant’s representative made a further submission on 20 June 2017, essentially restating the applicant’s claims to fear persecution on the basis of his imputed political opinion as a young Palestinian man living in [the named] camp, the inheritance dispute with members of his family and his sexuality. In addition, the representative stated that if the applicant were to return to Palestine, he would face a real risk of harm by the authorities for ‘not repaying debts he believes he was framed with’. It was submitted that the applicant believes he will be imprisoned and perceived to be a collaborator by the Palestinian authorities.
The representative provided a further Statutory Declaration by the applicant, declared on 16 June 2017, in which the applicant reiterated the claims he had previously made to the Department and included the following additional information.
He has been diagnosed with generalised anxiety disorder and major depressive disorder. He is uncomfortable speaking about his sexuality or his syphilis in the Arabic language and in the presence of an interpreter.
He first realised he was ‘different’ when he was [age] years old when he had a sexual experience with his male friend [named]. They met up a couple of times over a few months but stopped seeing each other when the applicant injured his hand. He kept a low profile as he feared getting caught and felt as if he was being ‘followed and harassed’ by his family.
When he came to Australia, he ‘met a guy’ and had unprotected sexual intercourse. He has since attended many hospitals and medical clinics to treat the syphilis.
He does not want anyone to know about his sexuality because he would be judged and killed if he returned to Palestine. He was dismissed by his employer in Australia because of his sexual orientation and disease.
His community will put pressure on him to get married. It is a common practice to undergo a blood test prior to any marriage, which will reveal that he had contracted syphilis. Consequently, he will be publicly shamed, harmed, or killed by his family and the girl’s family.
If he were to return to the Palestinian Territories, he would have to hide his sexuality. Even if he were not to enter into another same-sex relationship and he did not get married, he will still be viewed as a homosexual. He will be disowned by his family and will be killed by religious groups such as the Islamic Jihad.
On 21 June 2017, the applicant’s representative submitted two further letters by [Psychologist A] regarding the applicant’s deteriorating state of mental health. She also submitted a letter dated 19 June 2017 by [Counsellor A], a counsellor and therapist at the [Health Service 1]. In her letter, [Counsellor A] stated that the applicant has completed six counselling sessions since 30 January 2017 and, during the course of these sessions, he had described having sex with other males. He had also indicated that he had felt ashamed and fearful that the information about his sexuality might reach persons in his home country.
The first hearing
The applicant appeared before a differently constituted Tribunal (the first Tribunal) on 22 and 27 June 2017. The hearings were conducted with the assistance of interpreters in the Arabic and English languages. The applicant’s then representative attended both hearings. Where relevant, the applicant’s oral evidence to the first Tribunal is referred to below.
Following the hearing, the applicant’s representative made further submissions, addressing the concerns raised at the hearings by the first Tribunal. In particular and in reference to the oral evidence given by the applicant to the first Tribunal, the representative submitted that the applicant has a well-founded fear of being seriously harmed or killed as a member of a particular social group of ‘gay men’ who are seen as not conforming to prevailing political, cultural, or social norms. The representative stated that the applicant lives in fear of being open about his sexual orientation due to the inherent religious and social attitudes towards gay persons in the West Bank. He maintains a discrete lifestyle in Australia because he is fearful that if he is forced to return to the West Bank, his family or refugee camp community will discover that he is a homosexual.
In relation to the applicant’s claims that he will be discovered to have a sexually transmitted disease on his return to Palestine, the applicant’s representative submitted that mandatory premarital blood testing occurs in the West Bank. The representative stated that although there is no information that the West Bank tests specifically for syphilis, it is common among other Middle Eastern countries to screen for sexually transmitted diseases. The representative referred to sources of information including textbooks and online articles and websites showing that the practice occurs in countries such as Dubai, Saudi Arabia, Oman, Kuwait and Egypt.
The first Tribunal’s decision
The first Tribunal found that the applicant was excluded from the 1951 Convention relating to the Status of Refugees due to the operation of Article 1D, which applied to him. It made this finding on the basis that UNRWA is providing protection to the ‘class of persons’ to which the applicant belongs. Having determined that s.36(2)(a) of the Migration Act did not apply, the Tribunal assessed the applicant’s claims under the complementary protection criterion. Ultimately, the first Tribunal was not satisfied that the applicant faces a real risk of significant harm by state or non-state actors for reasons he had provided, including his race, nationality, imputed political opinion, sexual orientation and financial dispute with members of his family.
[In] November 2017, the applicant made a judicial review application to the Federal Circuit Court of Australia.
[In] June 2020, the Federal Circuit Court remitted the matter to the Tribunal by consent. The Minister conceded that the first Tribunal’s reasons were infected by error, namely that, inconsistently with the reasoning of the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v WABQ (2002) 121 FCR 251, the first Tribunal ‘failed to consider whether the “protection” that it found was provided by the United Nations Conciliation Committee for Palestine on 28 July 1951 had since “ceased” to be provided.’
The matter is now before the presently constituted Tribunal (the Tribunal) for reconsideration.
Submissions to the present Tribunal
On 3 July 2020, the applicant’s authorised recipient submitted a letter authored by [Ms A] from the [a named health service]. In the letter, [Ms A] stated that when she reviewed the applicant in November 2019, he informed her that he was working in [an industry] and was ‘happily settled with his male partner’. However, at his last consultation on 30 June 2020, the applicant told her that he had broken up with his partner and had difficult economic circumstances. She stated that the applicant described ‘ongoing significant anxiety, with anxious ruminations’ related to his fear of being returned to Palestine and the long process associated with his visa application.
On 30 July 2020, the Tribunal wrote to the applicant under s.424(2) of the Act, inviting him to provide evidence in support of his claims in relation to his sexual orientation, as well as any recent medical reports or psychological evidence relevant to his case.
On 11 August 2020, the applicant’s authorised recipient responded to the Tribunal’s request on behalf of the applicant and provided an updated statement by him, dated 11 August 2020.
In his statement, the applicant stated that he no longer wishes to rely on his previous claims to the Department and to the first Tribunal in relation to his race, political opinion and family dispute. He stated he now wishes to solely rely on his claims in relation to his sexual orientation. The applicant also provided the following additional information.
Prior to the COVID-19 lockdown, he attended gay clubs in Melbourne, but recently his social activities have been confined to social media platforms.
In January 2018, he entered into a same-sex relationship. The relationship ended in June 2020 due to ‘irreconcilable differences’. He was emotionally dependent on his ex-partner and the relationship breakdown continues to have ‘devastating effects’ on his mental health. He has been seeing a psychologist for several years and recently resumed psychological counselling.
His parents and [siblings] continue to reside in the Palestinian Territories. His family and relatives are not aware of his true sexual orientation and have pressured him to get married in line with their religious and socially conservative culture. His resistance to getting married will raise his family’s suspicions that he is homosexual.
He wants to live openly as a gay man but if he is returned to the Palestinian Territories, he will have no choice but to conceal his sexual orientation and this thought has caused him long-term depression. Members of the LGBTI community in the Palestinian Territories are forced to conceal their sexual orientation or flee the country out of fear of being subjected to serious harm by religious fanatics and the Palestinian authorities. Radical Muslims believe that homosexuality is ‘abhorrent to Islam’ and ‘people who come out as homosexual should be killed.’
He fears that he will be ostracised and persecuted as persons with syphilis are regarded as having engaged in homosexual activity, regardless of their true sexual orientation. He will also be denied adequate treatment for his condition, which may have serious long-term consequences on his health.
The majority of the medical profession in the Palestinian Territories subject their patients to gay conversion therapy and he fears that he would be denied proper psychological treatment for his depression.
In addition, he will be denied employment opportunities due to existing social and official discrimination against the LGBTI community in the Palestinian territories, including in the public sector. This societal discrimination is severe and prevalent throughout the Palestinian Territories.
The applicant submitted an older letter by [Ms A], dated 17 December 2019. In that letter, [Ms A] stated that, in February 2019, the applicant commenced attending monthly appointments at [a named health service]. She last saw the applicant on 19 November 2019 and at that time the applicant was ‘anxious, restless, and unable to wait to be seen.’ She stated that the applicant was prescribed medication for sleep and anxiety and that the prolonged wait time in relation to his visa status determination was having ‘an extremely serious effect’ on his mental health.
The applicant also submitted screenshots of what appears to be his profile page on an online subscription-based dating app. On his profile, the applicant states that he is ‘interested in men’.
RELEVANT LAW
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, the applicant 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.
Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
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.
Article 1D
Article 1D of the 1951 Convention relating to the Status of Refugees operates to exclude from the Convention persons receiving protection or assistance from a United Nations organ or agency other than the UN High Commissioner for Refugees (UNHCR). Article 1D states:
This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
The UNHCR Guidelines in relation to the Applicability of Article 1D of the Refugees Convention to Palestinian Refugees states that Article 1D has two related purposes:
The first purpose is to ensure that Palestinian refugees continue to be recognized as a specific class, and that they continue to receive protection and associated rights, until their position has been definitively settled in accordance with the relevant resolutions of the United Nations General Assembly.
The second purpose of Article 1D is to avoid duplicating and overlapping competencies between UNHCR and UNRWA. The responsibilities of the two agencies are intended to be complementary. In this regard, it is noted that while UNHCR’s mandate is global, its competence “shall not extend to a person ... who continues to receive from other organs or agencies of the United Nations protection or assistance.” In contrast, UNRWA has competence in five geographical areas or ‘fields’ of operation: Jordan, Lebanon, the Syrian Arab Republic, the West Bank (including East Jerusalem) and Gaza.[1]
WABQ
[1] UNHCR, Guidelines on International Protection No 13: Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, December 2017, HCR/GIP/17/13, pp 3-4,
Under Australian law, the Minister for Immigration and Multicultural Affairs v WABQ (2002) is the leading authority on the interpretation and application of Article 1D.
Having engaged in an extensive examination of Article 1D, the Full Federal Court in WABQ held that the first paragraph of the Article applies to exclude a person from the Convention if the person belongs to a class of persons[2] who were receiving[3] protection or assistance from organs or agencies of the United Nations other than UNHCR as at 28 July 1951, the date when the Refugees Convention was signed, this being the time referred to by the words ‘at present’.[4] The relevant factual issue in relation to the first paragraph is whether the applicant belongs to the relevant class of persons. In the case of a stateless Palestinian applicant, if Palestinians as a group were as at 28 July 1951 receiving protection or assistance then the first paragraph applies.
[2] MIMA v WABQ (2002) 121 FCR 251 at [69](1), [91], [162], [165]. Tamberlin J (at [162], [170]) specified ‘Palestinians’ as the relevant group; however his Honour’s reasons suggest that he intended to refer only to those Palestinians who were receiving protection or assistance at the relevant time.
[3] MIMA v WABQ (2002) 121 FCR 251 at [164]–[165].
[4] MIMA v WABQ (2002) 121 FCR 251 at [69](2), [92], [163].
Whilst Article 1D does not expressly refer to any particular ‘organs and agencies’, the Court, in the broadest sense, concluded that, at the relevant time, the United Nations Conciliation Commission for Palestine (UNCCP) provided protection to Palestinian Refugees and UNRWA provided assistance.[5] Based on the material before it, the majority of the Court observed that UNRWA had never had the function of providing protection to Palestinian refugees, as distinct from assistance.
[5] MIMA v WABQ (2002) 121 FCR 251 at [25] and [69](4).
In support of his application, the applicant submitted a copy of his UNRWA Registration Card. On the basis of this evidence, the Tribunal finds that the applicant is a descendant, through the male line, of Palestinians who became refugees as a result of the 1948 war. The Tribunal finds that the applicant belongs to a class of persons who were as of 28 July 1951 receiving protection or assistance from organs or agencies of the United Nations other than UNHCR. Therefore, he falls within the terms of the first paragraph. Having made this finding, it is necessary to consider if the second paragraph applies.
The Court in WABQ held that the second paragraph is also concerned with a class of persons rather than individuals and that it is sufficient if either protection or assistance has ceased for any reason in respect of the class (without their position being definitively settled) for the second paragraph to apply.[6] Thus, it will not be sufficient that protection or assistance has ceased in relation to an individual member of the class.
[6] MIMA v WABQ (2002) 121 FCR 251 at [69](5), [92], [102], [108], [163], [170].
Having accepted that the UNCCP had been charged with providing protection at the relevant time, the Full Federal Court unanimously agreed that whether protection has ceased to be provided is a question of fact to be determined by the Tribunal.[7] However, the judgments in WABQ disclose some divergence of opinion as to whether a factual finding regarding the provision of protection in 1951 is essential before a finding can be made as to whether protection or assistance has ceased.
[7] MIMA v WABQ (2002) 121 FCR 251 at [72], [110],[168].
Justice Hill held that knowing whether protection was provided at the time of ratification of the Convention was critical to determining whether protection has ceased. His Honour was of the view that if there was no agency providing protection at the time of ratification, then there would be no agency which has ‘ceased’ to do so.[8] With regard to UNCCP, his Honour noted:
What is not easy to deduce from the UNCCP reports, prior to its slide into inactivity, is whether it ever actually embarked upon that part of its mandate expressly referred to as “protection”.[9]
[8] MIMA v WABQ (2002) 121 FCR 251 at [69](5).
[9] MIMA v WABQ (2002) 121 FCR 251 at [69](4).
Justice Moore did not agree with the conclusion of Hill J that it is necessary to find, as a matter of fact, whether UNCCP did provide protection in 1951 as a step in the process of determining whether protection has ceased. His Honour held that it would be a ‘measure of artificiality’ to impose this first step, considering that the drafters of the Convention proceeded on the basis that protection was being provided by the UNCCP in 1951 and ‘it was on that footing that the complementary provisions in the first and second paragraph of Article 1(D) were adopted.’[10] For Moore J, ‘[t]he unanswered question the Tribunal must address (insofar as protection is concerned) relates to whether protection has ceased in the sense that it is no longer provided.’[11]
[10] MIMA v WABQ (2002) 121 FCR 251 at [108].
[11] MIMA v WABQ (2002) 121 FCR 251 at [108].
Going further, Tamberlin J held that the UNCCP was in fact providing protection to Palestinians at the date of the Convention. His Honour noted that the work of the UNCCP can properly be characterised as the taking of steps, designed to implement the objectives set out in its mandate, to provide protection to Palestinians.[12] He concluded that, as at the date of the Convention, the UNCCP was taking protective measures for the benefit of Palestinians and that they could properly be said to have been receiving the benefit of these efforts.[13]
[12] MIMA v WABQ (2002) 121 FCR 251 at [155].
[13] MIMA v WABQ (2002) 121 FCR 251 at [157].
Having considered the material before him, pointing to UNCCP’s inability to fulfil its objectives, Tamberlin J found that the UNCCP has been unable to perform its mandate since 1951 and protection has ceased to be provided by the Agency.[14] His Honour stated:
169 Having regard to the conclusions expressed above, in my view, the first paragraph of article 1(D) should be applied in the following way. Palestinians as a group were as at 28 July 1951, protected by UNCPP and assisted by UNWRA and therefore could be described as "at present receiving protection or assistance". Therefore the Convention did not apply in this case by reason of the first paragraph of Article 1(D).
170 Having reached this decision as to the operation of the first paragraph it is then necessary to consider the operation of the second paragraph. The words "such protection or assistance has ceased for any reason" in that paragraph must be read by reference to the first paragraph…
171 The documents relating to UNCPP, referred to above, strongly indicate that since 1951 protection has ceased to be available because UNCPP has been unable to perform its mandate…[15]
[14] MIMA v WABQ (2002) 121 FCR 251 at [157] and [171].
[15] MIMA v WABQ (2002) 121 FCR 251 at [169]–[171] (original emphasis).
Notwithstanding the divergence of opinion in WABQ, Tamberlin and Moore JJ were in general agreement that the framers of the Convention were aware of the functions of UNCCP and UNRWA, which were assigned tasks of protection or assistance in relation to Palestinians, and that protection was being provided at the time of ratification of the Convention.[16] Whilst the Court, based on the material before it, formed the view that protection as was provided by UNCCP had ceased, it also made it clear that is a factual matter for the Tribunal to determine on the basis of all the material before it whether protection has ceased.[17]
Has protection ceased?
[16] MIMA v WABQ (2002) 121 FCR 251 at [74], [157], [175].
[17] MIMA v WABQ (2002) 121 FCR 251 at [72], [110], [168].
Consistently with the reasoning in WABQ, in particular Tamberlin J’s findings, the Tribunal is of the view that protection was being provided at the relevant time by UNCCP. That protection ceased in 1951 or sometime after that. Therefore, Article 1D is not applicable and the applicant is entitled to have his application for a protection visa determined according to the Convention definition in Article 1A(2).[18]
[18] WACG v MIMA [2002] FCAFC 332.
Notwithstanding the above findings, the Tribunal is mindful of Moore J’s view that the question to be addressed under the second paragraph relates to whether protection has ceased in the sense that it is no longer provided.[19] This may suggest that ‘has ceased’ should be interpreted as meaning protection has ceased as at the time of the Tribunal’s decision. His Honour further opined:
In my opinion, the first paragraph of Article 1(D), and subject to the operation of the second paragraph, operates to render inapplicable the Convention more generally if UNRWA or UNCCP (or some other body created after 1951 to take over their functions (though, it would appear, this has not occurred)) provided protection to the group or community who were to receive protection in 1951 or provided assistance to the same group or community who were to receive assistance in 1951, namely, dispossessed Palestinians.[20]
[19] MIMA v WABQ (2002) 121 FCR 251 at [108].
[20] MIMA v WABQ (2002) 121 FCR 251 at [109].
These views may also suggest that the resumption of protection by a different UN body or agency sometime after the cessation of protection by the UNCCP may have a bearing on whether ‘such protection…has ceased’.
More recent information in relation to the UNRWA’s mandate and activities may suggest that the Agency is providing protection to Palestine refugees. Indeed, after reviewing the relevant information before it, the first Tribunal found that UNRWA does in fact provide protection to Palestinian refugees. For the reasons that follow, this view is not shared by the presently constituted Tribunal.
What is protection?
As noted by O’Sullivan and Stevens, the concept of ‘protection’ varies in meaning according to context and jurisdiction:
At one end of the spectrum, asylum comprises full protection pursuant to the obligations set out in the 1951 United Nations Convention relating to the Status of Refugees, including non-refoulement and refugee associated rights such as the right to work and social security. At the other end, it can also mean lesser forms of protection such as temporary protection and ‘tolerated’ stay or forms of temporary humanitarian sanctuary which offer little more than a right of ‘non-return.[21]
[21] Maria O’Sullivan and Dallal Stevens, States, the law and Access to Refugee Protection, Fortresses and Fairness – Studies in International Law (Bloomsbury, 2017)p 6.
The International Committee of the Red Cross has developed the following definition over a series of workshops involving some fifty humanitarian and human rights organisations:
[A]ll activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and the spirit of the relevant bodies of law (human rights law, international humanitarian law, refugee law).[22]
[22] Global Protection Cluster (GPC), Handbook for the Protection of Internally Displaced Persons, June 2010, type="1">
The above definition was subsequently adopted by the UN Inter-Agency Standing Committee (IASC).[23]
[23] Inter-Agency Standing Committee (IASC), ‘IASC Policy Paper: Protection of Internally Displaced Persons’, 1 December 1999, p 4; Damian Lilly, ‘UNRWA’s Protection Mandate: Closing the Protection Gap’ (2018) 30(3), International Journal of Refugee Law, pp 444, 446.
In the context of refugee law, Professor Guy Goodwin-Gill has noted:
Protection involves using the law to secure the rights, the security and the welfare of refugees, but the objective, beyond the immediate needs of refugees, is solutions, either the voluntary return of refugees to their country in conditions of security; or a new life in a new national community.[24]
[24] Guy Goodwin-Gill, ‘The Language of Protection’ (1989) 1(1), International Journal of Refugee Law pp 6, 16–17.
More specifically, in relation to protection under the Refugee Convention, Professor James Hathaway has stated:
The rights set by the Refugee Convention include several critical protections which speak to the most basic aspects of the refugee experience, including the need to escape, to be accepted, and to be sheltered…beyond these basic rights, refugees are also guaranteed a more expansive range of civil and socioeconomic rights…finally the Convention establishes rights of solution, intended to assist refugees to bring their refugee status to an end… [25]
[25] James C Hathaway, The Rights of Refugees Under International law (Cambridge University Press, 2005) pp 94–95.
In 1994, the United Nations General Assembly provided the following definition, in relation to the international protection of refugees:
International protection thus begins with securing admission, asylum, and respect for basic human rights, including the principle of non-refoulement, without which the safety and even survival of the refugee is in jeopardy; it ends only with the attainment of a durable solution, ideally through the restoration of protection by the refugee's own country…the protection function also includes promoting with governments and with other United Nations and international bodies measures to remove or attenuate the causes of refugee flight so as to establish conditions that would permit refugees to return safely to their homes, and, when this becomes feasible, facilitating, assisting and monitoring the safety of voluntary repatriation. If safe return is not possible, it involves promoting and implementing the other durable solutions of resettlement or local integration.[26]
[26] UNHCR, Note on International Protection, 7 September 1994, A/AC.96/830, at [12].
In the Tribunal’s view, these authoritative definitions, which traverse a broad range of legal rights and human rights principles, suggest that international protection of refugees incorporates three key elements: the right of non-refoulement, protecting the refugees’ civil and socioeconomic rights, and finding durable solutions. Features of these elements are discussed below in the context of UNCCP and UNRWA’s protection mandates. The Tribunal notes, however, that non-refoulement is just one aspect of international protection which is not relevant to Palestinian refugees.[27] Neither UNRWA nor UNCCP have or had this as part of their protection mandate.
UNCCP’S protection mandate
[27] Lex Takkenberg, The Status of Palestinian Refugees in International Law (Clarendon Press Oxford, 1998) p 278.
The UN General Assembly established the UNCCP under Resolution 194(III) Palestine – Progress Report of the United Nations Mediator. Under the Resolution, the Agency was given the function of taking steps to assist the governments and authorities concerned to achieve final settlement of all questions outstanding between them. Under Paragraph 11, the Agency was also instructed to:
…facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him, with the appropriate organs and agencies of the United Nations.[28]
[28] UN General Assembly, 194 (III). Palestine -- Progress Report of the United Nations Mediator, 11 December 1948, A/RES/194, >
UNCCP’s protection mandate included many of the protection functions that the UNHCR carries out in other refugee situations, including the collection of basic information to facilitate protection and implementation of a durable solution, the protection and promotion of measures for restitution of refugee properties and promotion of options for a durable solution based on refugee choice, comprising repatriation, resettlement, restitution and compensation.[29]
[29] Terry Rempel, ‘The United Nations Conciliation Commission for Palestine, Protection, and a Durable Solution for Palestinian Refugees’, (2000) (5) BADIL - Information & Discussion Brief, >
In WABQ, Hill J noted that UNCCP’s functions included:
negotiations with a view to a final settlement of the problem, the protection of Holy Places and access to them, United Nations control of parts of Jerusalem, free access to Jerusalem by road, rail or air to all Palestinian inhabitants, the demilitarisation of Jerusalem at the earliest date, the formulation of proposals for a special international status for Jerusalem, the facilitation of economic development of the area, including arrangements for access to ports, airfields, transportation and communication facilities, assistance to refugees who wished to return home with compensation for those choosing not to and the resettlement and economic and social rehabilitation of refugees.[30]
[30] MIMA v WABQ (2002) 121 FCR 251, per Hill J at [23].
The Court found that the framers of the Convention intended the reference to protection to be a reference to the functions of the UNCCP, which included safeguarding the rights, property and interests of the refugees and facilitating a durable solution.[31] As noted by Tamberlin J, UNCCP’s role was to provide protection and facilitate a durable solution based on the principle of refugee choice and the framework set down in the original resolution.[32]
[31] MIMA v WABQ (2002) 121 FCR 251, per Hill J at [69] and Tamberlin J at [143] and [152].
[32] MIMA v WABQ (2002) 121 FCR 251, per Tamberlin J at [152]. See also Lex Takkenberg, The Status of Palestinian Refugees in International Law (Clarendon Press Oxford, 1998) p 319. Takkenberg observes ‘…international protection of refugees is never an aim in itself; the ultimate objective should always be to achieve a durable solution restoring the refugee’s access to the protection of a state.’
It is clear that protection within the mandate of UNCCP was multifaceted in nature and finding a durable solution by achieving ‘a final settlement’ between the parties to the conflict was one aspect of UNCCP’s functions.
UNRWA’S protection mandate
UNRWA was established by the UN General Assembly on 8 December 1949 to perform the following functions:
a) To carry out in collaboration with local governments the direct relief and works programmes as recommended by the Economic Survey Mission;
b) To consult with the interested Near Eastern Governments concerning measures to be taken by them preparatory to the time when international assistance for relief and works projects is no longer available.[33]
[33] UN General Assembly, 302 (IV). Assistance to Palestinian Refugees, 8 December 1949, A/RES/302(IV), >
The UN General Assembly directed UNRWA to consult with UNCCP ‘in the best interests of their respective tasks, with particular reference to paragraph 11 of the General Assembly resolution 194 (III) of 11 December 1948.’[34]
[34] UN General Assembly, 194 (III). Palestine -- Progress Report of the United Nations Mediator, 11 December 1948, A/RES/194, at [20].
In WABQ, based on the material before him, Tamberlin J drew clear distinctions between the functions of UNCCP and UNRWA, finding that UNRWA did not provide protection.
[A]t the time the Convention was done, there were two UN agencies in existence and the function of “protection” was given to UNCCP and the function of providing “assistance” was assigned to UNWRA. This factual context is relevant to the interpretation of Article 1(D). There is of course some overlap in the expression “protection” and the expression “assistance” in that protection may qualify as a form of assistance. However, as used in Article 1(D) the word “protection” appears to embrace activities or measures extending beyond the social, educational and other types of assistance assigned to UNWRA. This distinct role assigned to UNCCP must be borne in mind in the interpretation of Article 1(D).[35]
[35] MIMA v WABQ (2002) 121 FCR 251 at [161].
Justice Hill also stated that ‘at no time was UNRWA charged with providing protection to Palestine Refugees. If any agency was charged with providing protection it was UNCCP.’[36]
[36] MIMA v WABQ (2002) 121 FCR 251 per Hill J at [29].
This view, however, is not shared by some field experts. For example, Brenda Goddard of UNHCR has argued:
[T]he General Assembly never stated that the mandate of UNCCP was to “protect” while that of UNRWA was to “assist” and the argument that the two mandates may be neatly compartmentalized and distinguished from one another is simplistic. UNRWA’s protection mandate and activities have been recognized and confirmed by the General Assembly. That the Agency, until relatively recently, has not exercised greater protection responsibilities, or has been unable to do so, does not negate this aspect of its mandate.[37]
[37] Brenda Goddard, ‘UNHCR and the International Protection of Palestinian Refugees’, (2009) 28(2–3) Refugee Survey Quarterly pp 475, 508.

100. It is apparent that UNRWA’s foray into protection has evolved over time. Susan Akram has observed that, following the 1967 war, UNRWA began responding to the increased need for human rights intervention and monitoring and UN General Assembly resolutions increasingly used the language of ‘protection’ and ‘legal rights’ in conjunction with UNRWA’s role and activities towards Palestinian refugees.[38] According to Takkenberg, in response to the First Intifada in 1987, UNRWA expanded its protection related activities and introduced the ‘Refugee Affairs Officers’ program. This was intended, amongst other functions, to ‘try to defuse the situation during confrontations between occupation forces and Palestinians’ and ‘to provide a neutral presence in areas of conflict to relieve tensions’.[39] Goodwin-Gill has also noted that, during the First Intifada, UNRWA played a ‘significant, if limited, protection role on behalf of Palestinians against the occupying forces’.[40]
[38] Susan Akram, UNRWA and Palestinian Refugees, The Oxford Handbook of Refugee and Forced Migration Studies p 227 (2014).
[39] Lex Takkenberg, The Status of Palestinian Refugees in International Law (Clarendon Press Oxford, 1998) 288.
[40] Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 2007) p 438.
101. Since then, there has been a notable shift in UNRWA’s references to ‘protection’, including the Agency’s extensive use of the term when describing its functions in recent years. For example, UNRWA’s Medium Term Strategy for 2010–2015 expressly stated that UNRWA has a mandate to provide protection, with reference to the definition adopted by the IASC.[41] Lance Bartholomeusz, UNRWA’s former Director of Legal Affairs, has also strongly argued that that UNRWA has a ‘very clear mandate for protection’, despite not having a statute with an ‘express reference to protection’, like that of the UNHCR.[42]
[41] UNRWA, UNRWA Medium Term Strategy 2010–2015, p 32 Lance Bartholomeusz, ‘The mandate of UNRWA at sixty’ (2009) 28(2-3), Refugee Survey Quarterly, pp 452, 466. See also Brenda Goddard, ‘UNHCR and the International Protection of Palestinian Refugees’, (2009) 28(2–3), Refugee Survey Quarterly, pp 475, 508. Lex Takkenberg, ‘UNRWA and the Palestinian Refugees after sixty years: some reflections’ (2009) 28(2–3), Refugee Survey Quarterly, pp 253, 258.

Does UNRWA in fact provide protection?

102. Despite the views expressed above, and whilst it may be accepted that UNRWA has a protection mandate, having carefully considered the material before it, the Tribunal is not satisfied that UNRWA, in fact, provides ‘protection’ by having resumed the functions of UNCCP as accepted by the Full Federal Court in WABQ, or even as understood in the context of international protection of refugees.

103. In WABQ, the Court referred to UNRWA’s role in providing ‘assistance’ in the form of education, health care and social services.[43] Over the years, however, this assistance appears to have been interpreted or characterised as protection by UNRWA, as well as a number of field experts. Indeed, a close scrutiny and analysis of UNRWA’s annual reports and strategy documents indicates that, regardless of the nature of its mandate, the ‘protection’ provided by UNRWA essentially refers to the delivery of services, some advocacy and, to a lesser extent, addressing the protection concerns of some vulnerable groups, such as women and children.

[43] MIMA v WABQ (2002) 121 FCR 251 at [140].

104. A few years after WABQ was decided, Bartholomeusz argued that UNRWA has a long-standing mandate to provide education, health, and relief services, and thus ‘can be seen as having had a protection aspect since the beginning.’[44] Nicholas Morris, a retired UNHCR staff member has also likened UNRWA’s role in providing health, education and social services to providing protection:

[44] Lance Bartholomeusz, ‘The mandate of UNRWA at sixty’ (2009) 28(2–3), Refugee Survey Quarterly, p 467.

UNRWA has protection capacities and strengths that are not found elsewhere. UNRWA’s education, health, social welfare and other programmes (and the 25,000 staff who run them) provide the information, understanding of the refugees, and presence that is a prerequisite for protection interventions.[45]
[45] Nicholas Morris, ‘Towards a Protection Strategy for UNRWA’ (2009) 28(2–3), Refugee Survey Quarterly pp 550, 554.

105. Similarly, Damien Lilly, a former UNRWA staff member, has noted:
…the initial entry point to UNRWA’s approach to protection was through its service delivery programmes given their extent in such areas as education, health, and relief and social services, which clearly contribute to the enjoyment of corresponding rights. Suleiman has called this ‘relief protection’, and it has been one of the Agency’s principal protection roles for Palestinian refugees from the out- set, helping to realize their social and economic rights.[46]
[46] Damian Lilly, ‘UNRWA’s Protection Mandate: Closing the Protection Gap’ (2018) 30(3) International Journal of Refugee Law, pp 444, 459–460.

106. According to UNRWA’s website, the Agency’s services encompass ‘primary and vocational education, primary health care, relief and social services, infrastructure and camp improvement, microfinance and emergency response, including in situations of armed conflict.’ In a separate section, the website refers to UNRWA’s protection services and provides the following information:
UNRWA protection activities aim to respond to the protection needs of Palestine refugees amidst increasing conflict and displacement in the region...
In recent years, UNRWA has significantly strengthened its capacity to provide protection to Palestine refugees through various initiatives, including protection trainings for staff, dedicated protection activities to ensure focus on the most vulnerable, and the introduction of protection staff both at headquarters and in all field offices…
The United Nations General Assembly acknowledges the protection mandate of UNRWA by recognizing in its resolutions “the valuable work done by the Agency in providing protection to the Palestinian people, in particular Palestine refugees.” The Agency’s protection mandate specifically addresses the rights of vulnerable groups – women, children and persons with disabilities – and the United Nations General Assembly has encouraged UNRWA to further address their needs and rights in its operations in accordance with relevant international instruments including the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities…[47]
[47]

107. In the relevant section of its 2019 annual report, UNRWA described its protection activities as follows:
Throughout 2019, UNRWA continued to strengthen the protection of vulnerable and at risk groups by: (i) further developing the capacity of frontline staff; (ii) coordinating safe and meaningful access to life saving services; (iii) promoting communities to identify and address protection concerns; and (iv) advocating for the rights of Palestine refugees and raising protection issues of concern with the relevant authorities and other duty bearers… UNRWA continued to promote equal and dignified access to services by all Palestine refugees including persons with disabilities, the elderly, undocumented married women and girls and women and child headed households. [48]
[48] UNRWA, Annual Operational Report 2019, p 26 According to UNRWA’s website:
UNRWA applies a holistic approach to protection. This includes an ‘internal’ dimension, which supports the fulfilment of the rights of Palestine refugees in and through the Agency’s service delivery, and an ‘external’ dimension involving engagement with relevant duty bearers to promote respect for Palestine refugee rights. These dimensions complement each other and are not mutually exclusive…[49]
[49] It is not entirely clear how, in practice, UNRWA approaches protection through ‘the external dimension’. However, it appears that it is largely reflected in UNRWA’s role in advocacy and reporting. According to its annual report:
Protection concerns affecting Palestine refugees were also documented, including non-admission, refoulement and legal status. The Agency engaged with Host Governments, asylum authorities, specialized organizations and other UN entities on these issues to secure remedial action.[50]
[50] UNRWA, Annual Operational Report 2019, p 26 However, as Akram has noted, UNRWA has no authority to monitor or implement the Refugee Convention or the Stateless Persons Convention. With regard to human rights conventions, UNRWA has limited capacity to monitor, intervene, file reports in the treaty bodies, or pressure for compliance concerning the Arab states’ implementation of these treaties vis-à-vis Palestinians in their territories.[51]
[51] Susan Akram, UNRWA and Palestinian Refugees, The Oxford Handbook of Refugee and Forced Migration Studies p 227 (2014).
111. Beyond this limited advocacy role, other documents, such as UNRWA’s 2016–2021 Medium Term Strategy, place emphasis on safeguarding the rights of Palestinian refugees through the ‘provision of services’:
For UNRWA, protection is what the Agency does to safeguard and advance the rights of Palestine refugees, including through the direct provision of services and other activities. Human rights and human development reinforce each other: expanding people’s capabilities and protecting their rights go hand in hand.[52]
[52] UNRWA, Medium Term Strategy 2016-2021, p 30
112. UNRWA’s contemporary ‘protection framework’ was also clearly devised with reference to its assistance, service delivery and advocacy functions:
There are four complementary elements to the Agency’s protection approach:
·UNRWA ensures that it provides protection in and through its service delivery programmes by meeting minimum protection standards;
·UNRWA implements protection programmes that respond to protection threats and promotes the resilience of Palestine refugees;
·UNRWA addresses cases of violence, abuse, neglect and exploitation of vulnerable groups, including women and children; and
·UNRWA promotes the rights of Palestine refugees under international law, through the monitoring and reporting of violations and by engaging in private and public advocacy.[53]
[53] In the Tribunal’s view, this information only highlights UNRWA’s limited protection functions, regardless of how they may be presented. As noted by the New Zealand Immigration and Protection Tribunal, ‘UNRWA’s protection function is incidental as best.’[54]
[54] AD (Palestine) [2015] NZIPT 800693-695, at [178].
114. More importantly, UNRWA makes a distinction between the range of activities constituting international protection and the specific refugee protection right to durable solutions.
115. In a consultancy report prepared for UNRWA, Morris has noted whilst ‘a durable solution is the key to the enjoyment of national protection and the realisation of other rights… UNRWA’s role is limited.’[55] He lists protection and durable solutions as separate components of UNRWA’s mandate towards Palestinian refugees, stating ‘neither humanitarian assistance nor international protection can substitute for, still less produce, a just and durable solution to the plight of Palestine refugees.’[56]
[55] UNRWA Consultant’s Report, What protection means for UNRWA in concept and practice, 31 March 2008, Ibid.
116. Bartholomeusz has also stated that ‘UNRWA does not have a mandate to achieve durable solutions for Palestine refugees...’[57] He has suggested, however, that UNRWA’s mandate only allows it to play an ‘incidental role’ in the resolution of the Palestinian issue.[58] As noted by Akram, UNRWA agrees that ‘on the core refugee protection right, the search for and implementation of durable solutions, it has no mandate, other than to highlight the need for a just and comprehensive solution for the refugee problem.[59] She stresses that UNRWA has not replaced UNCCP’s broad mandate and more expanded notion of protection in its obligations to resolve conflict issues, negotiate for restitution of the refugees’ property, and secure return and compensation rights.[60]
[57] Lance Bartholomeusz, ‘The mandate of UNRWA at sixty’ (2009) 28(2–3), Refugee Survey Quarterly pp 452, 471.
[58] Ibid.
[59] Susan Akram, UNRWA and Palestinian Refugees, The Oxford Handbook of Refugee and Forced Migration Studies 227 (2014).
[60] Ibid.
117. Finally, UNRWA’s ability to deliver its services and meet its limited protection functions has been drastically impacted by increasing funding shortages over the years. In 2015, UNRWA announced that it was facing its ‘most severe financial crisis ever.’[61] By 2019, this crisis had worsened considerably following an ‘abrupt end’ to funding by the United States.[62] In its 2018 annual report, UNRWA reported:
[61] UNRWA, UN Agency For Palestine Refugees Holds Emergency Session of Donors and Hosts to Discuss the Agency’s Dire Financial Situation, 26 July 2015,
[62] UN Press Release, UNRWA Faces Greatest Financial Crisis in Its History Following 2018 Funding Cuts, Commissioner‑General Tells Fourth Committee, 9 November 2018,
In 2018, the UNRWA protection function was significantly impacted by the Agency financial crisis as seventy per cent of protection funding was provided by the Government of the United States.[63]
[63] UNRWA, Annual Operational Report 2018, p 25
118. The Tribunal agrees with the observations of the New Zealand Immigration and Protection Tribunal in AD (Palestine) that:
Given the long-standing and continuing reality of funding deficits, should UNRWA continue to exist but in fact be unable to provide effective protection or assistance due to a lack of funding, there is no reason in principle why this should also not qualify as a cessation of activities under Article 1D, which expressly contemplates cessation “for any reason” as activating the inclusion clause. The temporary suspension of Palestine refugees from the Refugee Convention was predicated on the provision of assistance. It is entirely in keeping with the intention of the drafters that the inability of UNRWA to provide assistance due to financial constraints should be regarded as constituting a de facto cessation by an absence of effective protection or assistance.[64]
[64] AD (Palestine) [2015] NZIPT 800693-695, at [172].
119. For the reasons outlined above, the Tribunal finds that protection which was provided by the UNCCP has ceased. The Tribunal is not satisfied that the current activities of UNRWA constitute ‘protection’ in the sense described in Article 1D. The Tribunal finds that UNRWA is not in fact providing protection to Palestinian refugees. The Tribunal, therefore, is not satisfied that, since the cessation of protection by the UNCCP, there has been a resumption of protection by a different UN agency, namely UNRWA. Therefore, Article 1D is not applicable in this case. The applicant is entitled to have his application for a protection visa determined according to the Convention definition in Article 1A(2).
CONSIDERATION OF CLAIMS AND EVIDENCE
Analysis, reasons and findings
120. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
121. The Tribunal accepts that the applicant is a Palestinian born in the Palestinian Territories and that prior to his arrival in Australia he was a resident of the Palestinian Territories. The Tribunal finds that the applicant’s country of reference and his country of former habitual residence are the Palestinian Territories.
122. In evidence provided to the previous Tribunal, the applicant raised claims relating to his sexual orientation. The first Tribunal accepted that the applicant is gay. However, having assessed the applicant’s claims against the complementary protection criteria, the first Tribunal, based on the evidence before it, found that as the applicant has chosen to live a private homosexual lifestyle in Australia, he would continue to live his life in this manner in the Palestinian Territories. The first Tribunal found that the applicant faces a remote risk of significant harm by state or non-state actors as a necessary and foreseeable consequence of removal from Australia to the Palestinian Territories.
123. Having carefully considered the evidence submitted by the applicant, including his oral evidence in the course of three hearings, the Tribunal accepts that the applicant is gay.
124. The applicant was only [age] years old when he arrived in Australia. The Tribunal accepts that, prior to his departure from the Palestinian Territories, the applicant had lived his entire life with his family in [the camp] with very limited exposure to same sex relationships or a gay ‘lifestyle’. The Tribunal accepts that the applicant contracted a sexually transmitted infection soon after he arrived in Australia as a consequence of engaging in a same sex sexual relationship. The Tribunal accepts that exposure to the infection had rattled the applicant, making him fearful, anxious and cautious. The Tribunal appreciates that the infection also impacted the applicant’s state of mind and subsequent behaviour. It is understandable that the applicant’s exposure to the infection, in the context of his background, age and fear of knowledge of his sexual activities reaching the Palestinian Territories might have initially subdued any desire he might have had in pursuing a gay lifestyle, albeit discreetly, in Australia.
125. On the basis of the evidence provided, including supporting written evidence by [Counsellor A] and [Ms A], the Tribunal accepts that in early 2018 the applicant entered into a same-sex relationship, which ended recently. At the second hearing, the Tribunal found the applicant’s account of the inception and the life of the relationship persuasive. This account and the evidence of the applicant’s activities on the online dating app, which is subscription based, do not suggest that his recent expressions of his sexual identity are inconsistent with the cautiousness he had previously exercised. In any event, it is a well-accepted fact that expressions of sexual identity and orientation patently vary between individuals. Whilst it may be reasonable to expect a person deprived of freedom to take full advantage of the freedoms that Australia has to offer, personal attributes and culture may bear upon how this encounter may unfold. The Tribunal finds that the manner in which the applicant has expressed his sexual identity in Australia continues to be influenced by feelings of shame and a fear that information about his sexuality might reach his home country.
126. The country information before the Tribunal indicates that religion has a strong influence on the Palestinian Territories, with Islam being the official religion of Palestine.[65] Homosexuality is largely taboo and condemned in Palestinian society, and attitudes towards LGBTI issues can be hostile[66] and members of the LGBT community in the Palestinian Territories are subjected to discrimination and targeted violence.[67] Homosexual Palestinians live in fear of being ostracised by family members and society, and are at risk of honour related violence on the basis that they have tarnished family honour by transgressing from ‘socially established gender expectations’.[68]
[65] DFAT, DFAT Thematic Report Palestinian Territories, 15 March 2017, p15. See also Refugee Legal Aid Information, ‘Occupied Palestinian Territory LGBTI Resources’, undated, Immigration and Refugee Board of Canada, Palestine: Treatment of sexual minorities by society and authorities, including legislation, state protection, and support services (2016–October 2018), 23 November 2018, PSE106175.E.
[67] United Nations Development Programme, Gender Justice & The Law: Assessment of laws affecting gender equality in the Arab States region, 8 December 2018, p 23.
[68] Immigration and Refugee Board of Canada, Palestine: Treatment of sexual minorities by society and authorities, including legislation, state protection, and support services (2016–October 2018), 23 November 2018, PSE106175.E.
127. According to the Immigration and Refugee Board of Canada, homosexuality is condemned in Palestinian society and homosexuals cannot live openly in Gaza or the West Bank. The Canadian research, citing sources, noted that sexual minorities in the Palestinian Territories are ‘highly vulnerable’.
[M]any LGBT Palestinians fear “coming out” or being “outed” to their families or communities. The primary concerns range from being ostracized from the family and society to experiencing violence and hate crime. From a societal point of view, homosexuality and presenting oneself in a way that does not conform with socially established gender expectations fall under the category of acts that bring disgrace to the family and tarnish “family honour.”[69]
[69] Ibid.
128. In relation to the attitude of the authorities, same-sex relationships are not criminalised in the West Bank and the Jordanian Penal Code, which is in force in the West Bank is silent on sexual minorities, ‘expressing neither condemnation nor protection for sexual minorities.’[70] However, there is a ‘strong anti-LGBTI sentiment’ amongst governing authorities and ‘public indecency laws’ are used to condemn homosexuality and preserve social norms.[71] Amnesty International reports that at least eight LGBTI individuals were arbitrarily arrested or ill-treated by Palestinian security forces in the West Bank.[72] In August 2019, the Palestinian Authority banned LGBTI activities in the West Bank on the basis that they are ‘harmful to the higher values and ideals of Palestinian society.’ The Palestinian police also encouraged the public to report persons linked to the LGBTI rights group, Al-Qaws.[73]
[70] Ibid.
[71] Ibid.
[72] Amnesty International, ‘Palestine (State of) 2019’, ‘PA bans LGBTQ activities in West Bank’, The Jerusalem Post, 19 August 2019.
129. According to Refugee Legal Aid Information:
In addition to being targeted due to their sexual orientation, Palestinian LGBTI persons are also seen as Israel's collaborators. Because Israel appears to protect LGBTI rights in the Middle East, many Palestinian LGBTI persons to seek protection in Israel. However, Israel has a record of rejecting and/or exploiting Palestinian LGBTI asylum seekers, presenting an additional risk in the life of Palestinians.[74]
[74] Refugee Legal Aid Information, ‘Occupied Palestinian Territory LGBTI Resources’, Based on the above information, the Tribunal finds that if the applicant were to return to the West Bank and practise his sexuality openly, or at the same level he has done so in Australia, there is a real chance that he would face significant discrimination and violence. The Tribunal finds that the applicant would not be able to live openly as a homosexual in the Palestinian Territories. Whilst it may be possible for him to practise his sexuality in the Palestinian Territories by being discreet, the Tribunal cannot expect the applicant to take reasonable steps to avoid persecutory harm he fears, or to live ‘discreetly’ to avoid such harm.[75]
[75] Appellant S395/2002 v MIMA (2003) 216 CLR 473.
131. Having carefully considered the evidence before it, the Tribunal is satisfied that, if the applicant were to return to the Palestinian Territories, there is a real chance that he would face threats to his life or liberty, significant physical harassment and/or significant physical ill-treatment. The Tribunal is satisfied that such treatment amounts to persecution within s.91R(1)(b) of the Act.
132. The evidence before the Tribunal indicates that homosexuals or gay men in the Palestinian Territories possess characteristics and attributes that make them distinguishable from the rest of the society and, based on the prevailing social and cultural norms in the Palestinian Territories they constitute a particular social group within the meaning of the Refugees Convention. The Tribunal accepts that homosexuals form a particular social group in the Palestinian Territories for the purposes of the Convention. The Tribunal is satisfied that the essential and significant reason for the persecution feared by the applicant is his membership of the particular social group of homosexuals in the Palestinian Territories. The Tribunal finds that effective state protection against the harm the applicant fears is not available to him. The Tribunal is not satisfied that the applicant would be able avoid the harm he fears by internally relocating within the Palestinian Territories.
133. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).
134. As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided and in view of the applicant’s own request for the Tribunal to solely rely on his claims relating to his sexual orientation, the Tribunal does not consider it necessary to assess other protection claims arising from his evidence.
DECISION
135. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Shahyar Roushan
Senior Member