2409109 (Refugee) - [2024] AATA 3301

2409109 (Refugee) [2024] AATA 3301 (20 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Noah Ali Khorami
CASE NUMBER: 2409109

COUNTRY OF REFERENCE: Lebanon
MEMBER:Sophie Manera
DATE:20 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 August 2024 at 12:16pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – particular social group – mixed religious marriage – Sunni marriage to Shia – opposition to Hezbollah and Shia groups – disinheritance by family – criminal convictions in Australia – convictions against a Shia woman – family connections to Hezbollah – fear of killing – access to mental health treatment – delay in applying for protection or raising protection claims – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 57, 65, 424, 499, 501
Migration Regulations 1994, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 669
GLD18 v MH [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Pearson v Minister for Home Affairs [2022] FCAFC 203
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND
Immigration history

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old male. He is a Lebanese citizen. His religion is Sunni Muslim.
The applicant arrived in Australia [in] March 2015 as the holder of a [student] visa.
The applicant married his wife [in] October 2016. On 19 October 2016 the applicant applied for a Subclass 820/801 combined partner visa. On 22 August 2018 the applicant was granted a temporary partner visa (Subclass 820). On 24 October 2018 the applicant was granted a permanent partner visa (Subclass 801).
The applicant has [number] biological children with his wife. He also has a stepdaughter from his wife’s first marriage.
[In] November 2018 the applicant was convicted of assault occasioning actual bodily harm, [number] counts of common assault, and of contravening prohibition/restriction in AVO. The applicant was sentenced, on appeal, to an aggregate [term] imprisonment.
On 27 March 2019 the applicant’s Subclass 801 permanent partner visa was cancelled mandatorily under s 501(3A) of the Act. The applicant applied for revocation of the s 501 visa cancellation. On 29 July 2020 a delegate of the Minister for Home Affairs made a decision not to revoke the s 501 visa cancellation.
On 4 August…

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 2409109 (Refugee)

Details

AGLC: 2409109 (Refugee) [2024] AATA 3301
Case: [2024] AATA 3301
Decision Date: 20 August 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, who claimed to be a Sunni Muslim, alleged a fear of harm upon return to Lebanon due to his marriage to a Shia woman, opposition to Hezbollah and other Shia groups, disinheritance by his family, and criminal convictions in Australia. The applicant also raised concerns about his access to mental health treatment. The Administrative Appeals Tribunal (AAT) considered the applicant's claims in light of Ministerial Direction No. 84, the Refugee Law Guidelines, and Complementary Protection Guidelines.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) as a refugee, or alternatively, under section 36(2)(aa) of the Act, which concerns complementary protection obligations. The Tribunal was required to assess whether there were substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.

The Tribunal considered the applicant's oral evidence regarding his background, family connections, and health issues. It noted that the applicant had a history of criminal convictions in Australia, which led to his visa cancellation and subsequent detention. The Tribunal also took into account the applicant's delay in raising protection claims and the fact that he had previously been unsuccessful in his revocation request and appeal to the General Division. After reviewing the evidence and relevant guidelines, the Tribunal concluded that the applicant had not established that he met the criteria for a protection visa under either section 36(2)(a) or section 36(2)(aa) of the Act.

Consequently, the Tribunal affirmed the decision under review, meaning the applicant's application for a protection visa was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.The applicant’s oral evidence During the hearing the applicant stated that he was born and grew up in [Town 1], North Lebanon. His grandparents lived in the same building as his parents, and the applicant often stayed with his grandparents to help them out. He lived at home whilst completing a [Qualification 1] in Tripoli. He commuted to Tripoli each day to attend classes. He lived in the family home until migrating to Australia. He has never travelled back to Lebanon since his arrival in Australia in March 2015. In Australia he has worked in the [Industry 1] and [in a business 1]. He has owned his own [business 1]. He claims that he is a Sunni Muslim, as are his parents and extended family. He has [number of siblings] who reside in [Country 1]. He has [number of siblings] in Lebanon. He is married His biological children are aged [respective ages] years old, and his stepdaughter is [age] years old. The applicant gave evidence that his parents continue to live in [Town 1]. He is in contact with his mother every one to 2 months. He speaks with his dad approximately every 5 months. The applicant said that he had owned a house in Lebanon, built on land allocated to his family by the government. There are no title deeds or other proof of ownership. He had started building the house prior to travelling to Australia. One of his uncles ([Uncle A]) finished building the house after the applicant had left Lebanon and currently lives in it. The applicant said that he suffers from a number of health problems. He has a back problem caused by his bed at the detention centre. He suffers from anxiety, stress, depression, PTSD and [a named] syndrome. The Tribunal asked the applicant to discuss his immigration history, visa cancellation, revocation request and appeal to the General Division. He said that he spent [period] in jail and his visa was cancelled while he was in jail. He was then taken straight from jail to an immigration detention centre while awaiting an outcome on his revocation request. He was transferred between various immigration detention centres, including at [specified centres]. He was unsuccessful in his revocation request and his application for review to the General Division. He said that he had learned from his mistakes and wanted to fight his case to reunite with his wife and children. He sold his [work equipment] to pay his legal costs. He appealed to the Federal Court and Full Federal Court. He said that he was released from immigration detention in 2022. Upon release from detention, he started up his business again and moved into a new house with his wife and children. Approximately 4 months later he was re-detained.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.The applicant’s oral evidence During the hearing the applicant stated that he was born and grew up in [Town 1], North Lebanon. His grandparents lived in the same building as his parents, and the applicant often stayed with his grandparents to help them out. He lived at home whilst completing a [Qualification 1] in Tripoli. He commuted to Tripoli each day to attend classes. He lived in the family home until migrating to Australia. He has never travelled back to Lebanon since his arrival in Australia in March 2015. In Australia he has worked in the [Industry 1] and [in a business 1]. He has owned his own [business 1]. He claims that he is a Sunni Muslim, as are his parents and extended family. He has [number of siblings] who reside in [Country 1]. He has [number of siblings] in Lebanon. He is married His biological children are aged [respective ages] years old, and his stepdaughter is [age] years old. The applicant gave evidence that his parents continue to live in [Town 1]. He is in contact with his mother every one to 2 months. He speaks with his dad approximately every 5 months. The applicant said that he had owned a house in Lebanon, built on land allocated to his family by the government. There are no title deeds or other proof of ownership. He had started building the house prior to travelling to Australia. One of his uncles ([Uncle A]) finished building the house after the applicant had left Lebanon and currently lives in it. The applicant said that he suffers from a number of health problems. He has a back problem caused by his bed at the detention centre. He suffers from anxiety, stress, depression, PTSD and [a named] syndrome.