1600816 (Refugee) [2018] AATA 2526 (11 July 2018)

Last Updated: 31 July 2018

1600816 (Refugee) [2018] AATA 2526 (11 July 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1600816

COUNTRY OF REFERENCE: Lebanon

MEMBER: Shahyar Roushan

DATE: 11 July 2018

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 July 2018 at 3:04pm

CATCHWORDS
Refugee – Protection visa – Lebanon – Internal Security Forces low level volunteer – Fear of Persecution from ISIS and extremists – Absent without leave – Fugitive status and one month imprisonment – Military Judicial Law a law of general application – Will be detained in Military Tribunal’s detention centre away from extremists – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438(1)(a), 499
Migration Regulations 1994, Schedule 2

CASES
Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293
Applicant A v MIEA (1997) 190 CLR 225

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

BACKGROUND, CLAIMS AND EVIDENCE

2. The applicant is a [national] of Lebanon. He is a Christian Maronite. He travelled to Australia [in] April 2015 on a [visa] and applied for a protection visa on 30 June 2015.

Application for a protection visa

3. In a statutory declaration attached to his application for a protection visa, the applicant made the following claims:
4. He was born in [District 1], where he grew up with his parents and siblings. He resided at the same village until his departure from Lebanon in April 2015.
5. In [year], he completed his compulsory military service and started working as [an occupation]. He did not want to work in the army voluntarily as he considered it to be a ‘dangerous’ career.
6. [In] October 2013, he was employed by the Internal Security Forces [(ISF)]. He chose this career path due to its higher remuneration and the favourable working conditions offered by the ISF. He also wanted to be involved in protecting his country. He received weapon training, including how to use all types of firearms.
7. The applicant’s contract with the ISF was for a period of [a number of] years, with the option to increase this [period]. He also understood that he might be ‘forced’ to renew his contract after this period. He was deployed to locations around Lebanon and his duty was to protect [certain locations], and the country in general. He also guarded [other locations]. Whenever there was a riot or a shooting in Lebanon that affected the safety of the population, he had orders to ‘shoot back at any extremist group or terrorist group to control the situation and bring peace to the country’. He was satisfied with his job and did not fear for his life.
8. After the Islamic State of Iraq and al-Sham (ISIS) came into power, problems escalated in Lebanon. ISIS became the ‘primary extremist group’ the ISF fought against. They planted bombs and beheaded ISF officers. During his employment with ISF, he heard of more than 20 men who had been killed by ISIS. They also targeted Christians, which made the applicant fear for his life.
9. In around January 2015, he was deployed to [Town 1] in [City 1], where ISIS were shooting from surrounding buildings in the market and he had to shoot back to protect the civilians. A group of his colleagues entered the market in tanks and he followed the tanks with another group and they exchanged fire. These incidents happened regularly and he was always fearful for his life amidst the crossfires. He also feared conflict between Hezbollah and ISIS, which would have put him in greater danger if he were to continue to stay with ISF. Due to the rise of ISIS and the escalating problems in Lebanon, he decided to flee to Australia. The applicant requested leave from the ISF on the basis that he wished to visit his family in Australia. He was granted leave from [dates].
10. The applicant fears being killed and beheaded. He fears ISF, ISIS and ‘Hassan Nasrallah and his followers’ due to his employment with the ISF and his Christian faith. The authorities in Lebanon will not protect him because he has breached his employment contract with ISF. In addition, they do not have the capacity to protect him against extremist groups such as ISIS.
11. On 9 November 2015, the applicant submitted a character reference from [a] Parish Priest [in] Sydney.

Interview

12. The applicant was interviewed by a delegate of the Minister on 11 November 2015. Where relevant, his oral evidence to the Department is referred to below.
13. On 18 November 2015, the applicant’s then representative wrote to the delegate, providing the following ‘additional information’ in support of the applicant’s claims:

Incidents of Fighting between ISF and ISIS in addition to the incident that occurred in January 2015 described by the Applicant, the Applicant faced many similar incidents of fighting against [ISIS].
Between around January and February 2015, the Applicant was deployed to [Town 2] approximately 10 times. He was a part of a team of around 50 soldiers, and each shift lasted around three days. When the shifts ended, other teams took over and the shifts rotated in this manner for two months.
The Applicant travelled in an armoured fighting vehicle referred to as ‘debebi’, similar to the one he travelled in, in the earlier incident in [Town 1]. The Applicant would stand atop the tank to shoot back at the lSIS fighters.
The ISIS fighters were shooting back from around 500 metres to 1 kilometre away. In a particular crossfire in [Town 2], the Captain was travelling in a jeep when he was hit by a bomb blast from the ground. The Captain was injured and captured by the ISIS. He was later beheaded and the ISF had to retreat from that fight before sending a larger team the next day.
The Applicant faces incidents such as these on his deployments to various [locations].

The delegate’s decision

14. The delegate was not satisfied that the applicant is at risk of being targeted for harm by ISIS or other militant groups for reasons of his religion and/or work with the ISF. She was not satisfied that Christians in Lebanon are generally at risk of harm for the reason of their religion. She was not satisfied that, if the applicant were to return to Lebanon, there is a real chance that he would face persecution for reasons of his religion, imputed political opinion or any of the other reasons set out in s.5J(1)(a) of the Act. The delegate accepted that the applicant may face some form of punishment, including imprisonment, for absconding from the ISF. However, she was not satisfied that he would be detained in a prison where there is a real risk of him being subjected to significant harm as defined under the Act.

APPLICATION FOR REVIEW

15. The applicant applied for a review of the delegate’s decision. A copy of the delegate’s decision record was provided by the applicant to the Tribunal for the purposes of review.

The hearing

16. The applicant appeared before the Tribunal to give oral evidence and present arguments at a hearing held on 18 January 2018 (the first hearing). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
17. At the first hearing, the applicant provided the Tribunal with a copy of a document in Arabic, purportedly issued by the ISF and received by his family in Lebanon a few months after his departure. The applicant explained that, according to the document, he is now a fugitive for being absent without leave from the ISF. The punishment for his crime is imprisonment and, if he were to return to Lebanon, he will be imprisoned in Roumieh prison. He also claimed that his duties at the ISF included escorting prisoners, including Islamic extremists, to Roumieh and his imprisonment means that he will be harmed by extremist inmates as a former ISF employee.
18. On 22 January 2018, the applicant submitted to the Tribunal a certified translation of the document he had given to the Tribunal at the first hearing. The document is titled ‘Decree No. 1051 Revoke Contract of Volunteering Policeman for Committing Fugitive Crime’. The document was issued [in] July 2015 by the Personnel Division of ISF and states that the ‘volunteering contract’ of the applicant, who is a part of the ‘[unit deleted]’ is revoked for ‘committing fugitive crime’ from [a date in] 2015.
19. Following the first hearing, the Tribunal wrote to the Department of Foreign Affairs and Trade (DFAT) to request further information in connection with the document and the applicant’s claims. On 19 April 2018, the Tribunal received a response from DFAT.
20. The information provided to the Tribunal by DFAT was discussed with the applicant at a hearing held on 10 May 2018 (the second hearing). The information put to the applicant and his response and explanations are discussed further below.
21. On 24 May 2018, the Tribunal received a letter from the applicant, reiterating that he continues to fear harm by ISIS and other terrorist groups in Lebanon. He also submitted a copy and translation of a ‘Summary of Conviction issued by the Military Court’, indicating that he has been sentenced to one month imprisonment.

The Certificate

22. The Department’s file relating to the applicant’s protection visa application contained a s.438(1)(a) certificate in respect of certain documents on that file. It is appropriate to address the validity of the s.438(1)(a) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest, must be capable of forming ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence’.
23. The folios subject to the s.438(1)(a) certificate consisted of case notes relating to the applicant’s [visa] application (folios 96–97). The only reason stated in the s.438(1)(a) certificate is that the information contained in the folios was related ‘to an internal working document and business affairs’. The Tribunal is not satisfied that this reason provides a sufficient basis for public interest immunity. The Tribunal finds the certificate to be invalid and it has proceeded to treat the documents in the usual way as if there was no certificate.

CONSIDERATION OF CLAIMS AND EVIDENCE

Relevant law

24. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
25. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
26. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
27. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.
28. 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

29. In accordance with Ministerial Direction No. 56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

ANALYSIS, REASONS AND FINDINGS

30. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
31. The Tribunal accepts that the applicant voluntarily commenced employment with the ISF in 2013 and was assigned to the [Unit]. The Tribunal accepts that the applicant was granted leave for a period of four weeks in April 2015 and during this period he travelled to Australia. The applicant did not return to Lebanon and the Tribunal accepts that the ISF considered him to be absent without leave and a ‘fugitive’.
32. Following the first hearing, the document issued by the ISF, advising the applicant that his contract had been revoked, was provided to DFAT for authentication. In their April 2018 response, DFAT advised that the document ‘is genuine and follows the template form in which the ISF issues its decisions/orders, including the letterhead and the section on recipients who should be advised of the decision/orders taken’.^[1]
33. DFAT also advised:

[An] ISF member, who has been absent without leave and who is accused of being a ‘fugitive’, will face imprisonment upon his return to Lebanon ... The member’s name will be circulated to all border crossings, including the airport. He will be arrested at the airport upon his return to Lebanon and imprisoned for fifteen days, after which he will be expelled from the ISF.
Meanwhile, Article 109 of the Military Judicial Law stipulates that any ‘fugitive’, who returns to Lebanon in peacetime, faces a prison term ranging from two to five years. The personnel is also considered to be a ‘fugitive’ three days after he is reported absent without a valid reason.^[2]

34. The Tribunal, therefore, accepts that the applicant’s contract of employment was ‘revoked’ by ISF in July 2015 and that he is now considered to be absent without leave. The Tribunal accepts that, if the applicant were to return to Lebanon, he will be considered a fugitive and will face imprisonment.
35. Following the second hearing, the applicant forwarded to the Tribunal a copy and translation of a ‘Summary of Conviction issued by the Military Court’, which he claimed to have obtained ‘from a friend’. The document shows that the applicant was convicted [in] October 2016 by a military court of the charge of ‘running away from Internal Security Forces out of country’. The punishment stipulated in the document consists of ‘one month imprisonment after leniency and granting him suspension executing the penalty and he has to pay the fees and legal expenses’. On the basis of this evidence, the Tribunal accepts that the applicant will be imprisoned for a period of one month if he were to return to Lebanon and pay for ‘legal expenses’.
36. It appears that the law under which he was convicted and sentenced to imprisonment, namely the Military Judicial Law, is a law of general application. As discussed with the applicant at the second hearing, it is well established that enforcement of a generally applicable law does not ordinarily constitute persecution, for the reason that enforcement of such a law does not ordinarily constitute discrimination.^[3] As Brennan CJ stated in Applicant A:

... the feared persecution must be discriminatory. ... [It] must be ‘for reasons of’ one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of ‘refugee’.^[4]

37. There is no evidence before the Tribunal to suggest that the relevant laws under which he was convicted and is likely to be imprisoned, are discriminatory or that they will be enforced against him in a discriminatory manner. The Tribunal finds that the applicant’s conviction and likely imprisonment are results of the non-discriminatory enforcement of laws of general application. The Tribunal, therefore, does not accept that there is a real chance that the applicant would face serious harm amounting to persecution.
38. In his oral evidence to the Tribunal, the applicant repeatedly stated that he did not fear ISF or going to prison, rather he feared coming face to face with Muslim extremists, including members of ISIS, while in prison.
39. The applicant told the Tribunal that his [Unit] intervened in battles with ISIS and other militant groups. During these episodes, he travelled in an armoured vehicle and shots were exchanged between his unit and extremist groups. In their April 2018 response, DFAT stated:

Voluntary members of the ISF may be deployed to ‘hotspots’ and to the border, but only to assist and support the Lebanese Armed Forces (LAF). The ISF’s main duty is to maintain order. They are not assigned combat roles or functions and are not authorised to fight ‘the enemy’, including the Islamic State and Sunni extremists. This mission is vested in the LAF.^[5]

40. The Tribunal therefore, accepts that the applicant was deployed to hotspots in [Town 2] and [City 1] and that his unit was engaged in exchanging fire with extremist groups. However, according to his post-interview submission, ISIS fighters in [Town 2] were shooting back from around 500 metres to one kilometre away. Similarly, in [City 1] clashes he referred to in his evidence, those shooting at the security forces were positioned inside surrounding buildings. The applicant did not claim that during these incidents he was ever personally identified. However, he told the Tribunal that he had occasionally accompanied charged or convicted extremists to the court or the Roumieh prison. He claimed that this would make it easier for these extremists to recognise and harm him if he were to be held in the same prison.
41. As it was put to the applicant at the second hearing, DFAT have advised that ‘military and security personnel, including ISF members, are not imprisoned at Roumieh prison, but at the Military Tribunal’s detention centre in the Beirut area of Mathaf’. DFAT also stated that the Military Tribunal or Court is the official body in charge of trying military and security personnel for disciplinary and non-disciplinary reasons. The applicant responded that there is no guarantee that he will be imprisoned in Mathaf or that non-military personnel will not be imprisoned in Mathaf. The Tribunal put to the applicant that it considered DFAT’s information to be reliable. Nevertheless, the applicant was given additional time to submit information that may support his claims or contradict DFAT’s information.
42. In a letter, dated 23 May 2018, the applicant stated that he ‘will not know which jail [he] will be locked up in but ... there are a lot of ISIS and DAISH people in jails where they will harm [him] and kill [him]’. The applicant did not provide any other evidence in support of his claims. As already noted, the Tribunal considers the evidence provided by DFAT to be reliable. The Tribunal finds that, if the applicant were to return to Lebanon, he will be imprisoned in the Military Tribunal’s detention centre in Mathaf. There is no other persuasive evidence before the Tribunal to suggest that he would be imprisoned in a non-military prison. The Tribunal finds that if the applicant were to serve his prison sentence in Lebanon, he will be detained in a military detention centre and not in Roumieh or any other prisons in Lebanon. As it was also put to the applicant at the second hearing, the Tribunal finds it highly unlikely that Muslim militant extremists, such as apprehended members of ISIS, would be imprisoned in the Military Tribunal’s detention centre, which is reserved for military and security personnel. The Tribunal does not accept that the applicant would come face to face with members of ISIS or any other extremist group in a military detention centre. The Tribunal finds that there is no real chance that the applicant will be subjected to any harm for the reasons he has provided whilst serving his prison sentence. The applicant did not claim, and there was no persuasive evidence before the Tribunal to suggest, that security personnel, including former members of the ISF, in the Military Tribunal’s detention centre in Mathaf experience mistreatment or are kept in poor conditions.
43. On the basis of the evidence before it, the Tribunal finds that the applicant’s likely imprisonment in Lebanon is the result of the non-discriminatory enforcement of a law of general application. The Tribunal does not accept that his imprisonment amounts to persecution under s.5J of the Act. The Tribunal does not accept that there is a real chance that the applicant would face serious harm amounting to persecution as a consequence of his imprisonment in Lebanon for the offences he has been convicted of. The Tribunal does not accept that there is a real chance that he would face serious harm amounting to persecution for any reason whilst serving a prison sentence in Lebanon.
44. The information contained in DFAT’s most recent Country Report in relation to Lebanon states that prisons in Lebanon are often overcrowded and lack adequate food or medical care. In addition, access to visits and lawyers is sporadic and not always guaranteed. DFAT also reported that it is aware of claims of torture in detention and prison, and that drug users, individuals involved in prostitution, members of the LBGT community, suspects arrested in relation to sectarian violence or extremism, as well as refugees face a risk of being tortured at the hands of authorities.^[6] The Tribunal has found that the applicant will be detained in a military detention centre in Mathaf and he does not fit the profile of individuals identified by DFAT as being at risk of torture and mistreatment. There is no persuasive evidence before the Tribunal to suggest that military and security personnel detained in military detention centres are at risk of being mistreated by the authorities.
45. Furthermore, the Tribunal is not satisfied that, as a consequence of being imprisoned in a military detention centre for one month upon his return, there is a real risk that the applicant will be subjected to any harm that would constitute ‘significant harm’. That is, cruel or inhuman treatment or punishment, degrading treatment or punishment, or torture as defined in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm during the period which he may spend in prison.
46. In his evidence to the Department and the Tribunal the applicant stressed that he had feared for his life and safety as a member of the ISF, particularly when he was deployed to hotspots in [City 1] on border areas to fight ISIS and other militant groups. The applicant also claimed that ISIS kidnapped ISF personnel and, if they were identified as Christian, they were beheaded.
47. The applicant expressly confirmed in his oral evidence to the Tribunal that he has no intention of joining ISF again. The Tribunal has accepted that, as a part of ISF’s [Company], the applicant participated in armed clashes to assist and support the Lebanese Armed Forces. The Tribunal accepts that he feared for his life and safety when he was employed by ISF. The Tribunal also accepts his claim that, on one occasion during skirmishes in [Town 2], a vehicle in which an ISF senior officer was travelling was hit by a ‘bomb’, resulting in the capture and subsequent murder of the officer.
48. According to the applicant’s own evidence, he was a low-level voluntary employee of the ISF and intervened in different ‘battles’ in different locations. During clashes with extremist groups, he travelled in an armoured vehicle and exchanged fire with ‘ISIS fighters’, who were ‘around 500 metres to 1 kilometre away’ or shooting from the surrounding buildings. As it was put to the applicant at the first hearing, the Tribunal finds it highly unlikely that the applicant was personally identified and would be targeted by these fighters if he were to return to Lebanon now. The Tribunal also finds it highly unlikely that the applicant was personally identified or would be pursued by militants he had escorted to the courts or prisons. Whilst the applicant claimed that he has ‘heard’ of more than 20 ISF employees being killed, the Tribunal has found no evidence, let alone persuasive evidence, in any of the sources consulted to suggest that current or former ISF personnel, regardless of the nature of their duties, have been targeted for harm by ISIS or other militant groups. The Tribunal finds that there is no real chance or real risk of the applicant facing serious or significant harm in Lebanon as a consequence of being directly involved in any form of armed clashes with militant groups upon his return to Lebanon. The Tribunal finds that there is no real chance or real risk of the applicant facing serious or significant harm in Lebanon at the hands of ISIS, other militant groups, Hezbollah or anyone else for the reason of, or for reasons arising from, his former employment with the ISF, membership of the particular social groups of ISF employees, former ISF employees, Christian ISF employees, any other subset of these groups or any political opinion that may be attributed to the applicant as a result of his employment with the ISF.
49. In his evidence, the applicant referred generally to his fear of harm as a Christian. At the first hearing, the applicant claimed that a cross in his village was damaged in November 2016 and offensive graffiti was painted on it by unidentified individuals. He also stated that a Christian girl in his village was raped and killed. When asked who was responsible for this crime, he said the perpetrator was a Syrian national, who must have been associated with ISIS. When asked how he knew the perpetrator was a member of ISIS, he said he was just guessing as the person responsible was a Syrian national. As it was discussed with the applicant, the Tribunal has found no information in any of the sources consulted, including as successive DFAT reports, recent news articles and reports from international human rights organisations, including Amnesty International and Human Rights Watch, to suggest that Christians in Lebanon, including Maronites, have been subjected to serious or significant harm by Muslims generally, Islamic extremist groups or anyone else. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant will face serious harm or significant harm in Lebanon for the reason of, or arising from, his religion in Lebanon.
50. The Tribunal appreciates that the applicant is concerned about general violence, political conflict and tension in Lebanon. However, there is no persuasive evidence before the Tribunal to suggest that the tensions, lack of general security and any instability the applicant may be concerned about is faced by him personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason.
51. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, lack of general security and the instability the applicant fears are faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of lack of general security and instability.
52. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
53. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
54. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

55. The Tribunal affirms the decision not to grant the applicant a protection visa.

Shahyar Roushan
Senior Member

ATTACHMENT – Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
...
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...

5J Meaning of well-founded fear of persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c) the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b) conceal an innate or immutable characteristic of the person; or

(c) without limiting paragraph (a) or (b), require the person to do any of the following:

(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

(ii) conceal his or her true race, ethnicity, nationality or country of origin;

(iii) alter his or her political beliefs or conceal his or her true political beliefs;

(iv) conceal a physical, psychological or intellectual disability;

(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b) the persecution must involve serious harm to the person; and

(c) the persecution must involve systematic and discriminatory conduct.

(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a) a threat to the person’s life or liberty;

(b) significant physical harassment of the person;

(c) significant physical illtreatment of the person;

(d) significant economic hardship that threatens the person’s capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6) In determining whether the person has a wellfounded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a wellfounded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b) disregard any fear of persecution, or any persecution, that:

(i) the first person has ever experienced; or

(ii) any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a) a characteristic is shared by each member of the group; and

(b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

(i) the characteristic is an innate or immutable characteristic;

(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a) protection against persecution could be provided to the person by:

(i) the relevant State; or

(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a) the person can access the protection; and

(b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

...

36 Protection visas—criteria provided for by this Act

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the noncitizen personally.

...

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^[1] DFAT, LBN CI180226164002750, 19 April 2018.
^[2] Ibid.
^[3] See Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293 at [20].
^[4] Applicant A v MIEA (1997) 190 CLR 225 at 233.
^[5] DFAT, LBN CI180226164002750, 19 April 2018.
^[6] DFAT, DFAT Country Report Lebanon, 23 October 2017.