1713076 (Refugee) [2020] AATA 5172 (23 November 2020)

Last Updated: 22 December 2020

1713076 (Refugee) [2020] AATA 5172 (23 November 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1713076

COUNTRY OF REFERENCE: Lebanon

MEMBER: Nathan Goetz

DATE: 23 November 2020

PLACE OF DECISION: Sydney

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

Statement made on 23 November 2020 at 1:01pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – political opinion – involvement in political party – vague and undetailed claims – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425, 426A
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant identifies as [an age]-year-old male citizen of Lebanon.
3. On 29 July 2013 the applicant lodged a temporary partner visa while he was offshore.
4. On 19 December 2014 the applicant lodged a tourist visa to travel to Australia. On 20 January 2015 this visa was granted, and the applicant arrived in Australia [in] February 2015. He departed Australia [in] May 2015.
5. On 10 May 2015 he was granted the prospective marriage visa. He returned to Australia [in] May 2015. On 10 February 2016 this visa ceased.
6. On 10 February 2016 the applicant applied for a protection visa. He was granted a bridging visa on 12 March 2016. The applicant failed to attend a delegate interview in connection with the protection visa application on 28 April 2017. The delegate refused to grant the visa on 12 May 2017. On 20 June 2017 the applicant applied to the Tribunal for a review of the refusal decision.
7. On 4 November 2020 a Tribunal officer contacted the applicant to discuss holding a hearing. With the use of an interpreter, the officer discussed the logistics for holding a hearing with the applicant.
8. On 5 November 2020 the Tribunal wrote to the applicant and invited him to appear at a three-hour hearing commencing at 10am on 23 November 2020 at the Sydney Registry. The invitation advised the applicant that if he did not participate in the scheduled hearing, the Tribunal may do a number of things, including making a decision on the review application without taking any further action to allow or enable the applicant to appear at the Tribunal hearing. The Tribunal sent SMS reminders to the applicant about the Tribunal hearing on 16 and 20 November 2020. There is no evidence that the hearing invitation, or that the SMS reminders, failed to send.
9. On 23 November 2020 the applicant failed to appear at the Tribunal hearing.
10. Having considered the contents of the Tribunal file, the Tribunal is satisfied that the applicant had been properly invited to appear at a Tribunal hearing, had a recent telephone discussion with a Tribunal officer about the logistics for holding a hearing, and had been sent two reminders about the Tribunal hearing. The Tribunal is satisfied that the applicant was aware of the Tribunal hearing. No explanation was provided for the applicant failing to appear at the Tribunal hearing.
11. Noting that the applicant also failed to attend a delegate interview, and that no further information had been provided by the applicant other than what was contained in his written protection visa application form, the Tribunal has decided that the appropriate course of action is to exercise its powers under s.426A(1A)(a). That is, to decide on the review application without taking any further action to allow or enable the applicant to appear at the Tribunal.

CRITERIA FOR A PROTECTION VISA

12. 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.
13. 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.
14. 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).
15. 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.
16. 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

17. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in this case is whether the applicant is owed protection obligations because he is either a ‘refugee’, or a person who satisfies ‘complementary protection’, or a member of the same family unit as a person who is a ‘refugee’ or a person who satisfies ‘complementary protection’.
19. According to the protection visa application form which the applicant signed on 8 February 2016, the applicant was born in [Village], [District], Lebanon in [Year]. He is ethnically a ‘Lebanese’ who is a Sunni Muslim. He has his mother, [sisters] and [brothers]. They all live in Lebanon. His father is deceased.
20. His occupation is that of ‘[Occupation 1]’. He has never married or been in a de facto relationship. He has personal contacts in Australia but did not identify them. He last arrived in Australia via Sydney Airport, having departed from Beirut. He confirmed that he departed and re-entered Australia and that he returned to Lebanon and then travelled to [Country 1] before returning to Australia. He said that he did not enter Lebanon with the full knowledge of the authorities there, but that he did enter Lebanon legally. Between [April] 2011 and [February] 2015, he was in [Country 2] for work.
21. He was asked for his reasons for claiming protection. He wrote that he left Lebanon to work in [Country 2] and later got engaged to his cousin who sponsored him as a fiancé. He left Lebanon because of the political instability and the fact that he was supposedly with the ‘Tayyar Al-Mustaqbal’ movement who were protesting the Hezbollah group in Beirut. This incident received ‘widespread attention.’
22. He thought that if he returned to Lebanon, he would be subjected to being stropped at the airport and detained. He is seen as causing public unrest ‘which is political as [his] family were there’ but he was not. He fears that he could also be mistreated and not given a chance to prove his innocence.
23. He wrote that he did not experience harm because he fled Lebanon. He did not seek help within Lebanon because he left Lebanon to go to [Country 2] and then to Australia. He did not move, or try to move, to another part of Lebanon because this was ‘not really applicable’. He does not know if he can relocate as he may be detained upon his return. He thinks he will be harmed if he returned to Lebanon because ‘no party will support [him]’. He feels that he is stuck because of his ‘background and race’. ‘[He] will be sending a more detailed statement within the next month or so’. He did not think that the authorities of Lebanon could or would protect him if he went back. He did not think he would be able to relocate within Lebanon but provided no reasons for this belief. He wrote he would provide a later stage ‘more submissions, information and any evidence’ in response to the protection visa application form’s question about documents. He was asked whether he received the assistance of an interpreter or anyone else to complete the application and he indicated he had. He agreed that the statement and other information was read back to him in his own language.
24. There was a visa grant notice for the prospective marriage visa on the Department file. This notice indicated that the visa was granted on 10 May 2015 and required the applicant to enter Australia and then marry. He was required to marry within the currency of the visa. The visa was to last until 10 February 2016.

FINDING AND REASONS

25. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
26. Just because the applicant claimed that he has a well-founded fear of persecution in Lebanon, or that there is a real risk of significant harm to him if he was removed from Australia to Lebanon, does not establish that these claims are true. While the concept of an ‘onus of proof’ is not appropriate for administrative decision-making, a decision-maker needs to establish facts and apply the law.
27. In the context of cases such as the applicant’s case, the evidence about facts are necessarily supplied by him. In the absence of more evidence and information from the applicant, the Tribunal cannot be satisfied that the applicant is a ‘refugee’, or a person who meets the ‘complementary protection’ criteria, or that he is a member of the same family unit of such a person.
28. The Tribunal has significant problems with the applicant’s claims. They are very general and lack meaningful detail. It would have been readily apparent to the applicant that it was inevitable the Tribunal would not make a favourable decision without hearing from the applicant at the Tribunal hearing. As made clear in hearing invitation, the applicant was invited to appear at the Tribunal hearing because it could not make a favourable decision on the information the Tribunal had: 425(2)(a).
29. The applicant wrote that he left Lebanon to work, but also wrote that he left Lebanon because he was supposedly with the ‘Tayyar Al-Mustaqbal’ movement. The applicant did not address when he was identified as being involved with the ‘Tayyar Al-Mustaqbal’ movement. Was it before he left Lebanon the first time, or was it during his second period of stay in Lebanon? If he was somehow identified with a group that meant he faced some harm in Lebanon, why did he leave Australia and not claim protection when he was initially in Australia in February 2015? How was he able to leave Lebanon if he was identified with this group? Is this group opposed by the Lebanese authorities? Did the applicant have any involvement in this group or was he incorrectly or deliberately identified as a member or supporter of this group, and what was the reason for this identification? How did he come to be identified with this group?
30. He claims that he would be stopped at the airport and detained if he returned to Lebanon. The applicant did not specify who would stop and detain him, nor their reasons for doing so. The applicant provided no information about why this would occur if he returned to Lebanon now, given he presented no evidence of this occurring when he last returned to Lebanon. The applicant claimed that he could not relocate to another part of Lebanon but provided no reasons for this claim. Further, apart from asserting that he is ‘stuck’ because of his ‘background and race’, he provided no evidence about why this is the case.
31. It is not the task of the Tribunal to make the applicant’s case for him. The applicant’s claims are vague and lacking in any meaningful detail. The Tribunal cannot be satisfied that there is truth in any of the claims that the applicant has put forward.

CONCLUSION

Refugee

32. For the reasons given above, the Tribunal is not satisfied there is a real chance of serious harm to the applicant in Lebanon because of his race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal is not satisfied that that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

33. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion. For the same reasons given above, the Tribunal is not satisfied that there is a real risk of significant harm to the applicant if he were to be removed from Australia to Lebanon. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Member of the same family unit

34. There is no claim that the applicant satisfies s.36(2) based on 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

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

Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

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

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

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

but does not include an act or omission:

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

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

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

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

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

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

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

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

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

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

...

receiving country, in relation to a non-citizen, means:

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

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

...

5H Meaning of refugee

(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.

...

5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) significant physical harassment of the person;

(c) significant physical ill‑treatment of the person;

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

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

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

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

5K Membership of a particular social group consisting of family

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

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

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

(i) the first person has ever experienced; or

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

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

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

5L Membership of a particular social group other than family

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

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

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

(c) any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i) the relevant State; or

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

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

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

(a) the person can access the protection; and

(b) the protection is durable; and

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

...

36 Protection visas – criteria provided for by this Act

...

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non‑citizen will suffer significant harm if:

(a) the non‑citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non‑citizen; or

(c) the non‑citizen will be subjected to torture; or

(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non‑citizen will be subjected to degrading treatment or punishment.

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

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

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

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

...