V96/04099 [1996] RRTA 3263 (15 November 1996)

1 This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs, that the applicant is not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees 1951 (the Convention) as amended by Article 1 Paragraph 2 of the Protocol relating to the Status of Refugees 1967 (the Protocol); and therefore refusing to grant a Protection visa.

2 The applicant is a 26 year old Christian man, a citizen of Lebanon. He arrived in Australia in December 1994, travelling on a Lebanese passport. His application for refugee status was lodged with the Department of Immigration and Ethnic Affairs (the Department) on 16 August 1995. The application was rejected by a delegate of the Minister on 16 January 1996.

3 The applicant applied for review of this decision to the Refugee Review Tribunal (the Tribunal) on 9 February 1996.

4 The jurisdiction of the Tribunal arises by virtue of -

(i) sub-s 414 (1) of the Act which requires the Tribunal to review an "RRT-reviewable decision" where a valid application is made under s 412;

(ii) sub-s 411 (1) (c), which defines an "RRT-reviewable decision" to include a decision to refuse to grant a protection visa.

(iii) s 412, which prescribes the criteria for a valid application.

5 I am satisfied that the jurisdictional requirements listed under paras. (i) to (iii) supra exist in this matter.

6 On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees: see s.36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose.

7 The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations (the Regulations): see s.31(3) of the Act and r.2.03 of the Regulations.

8 It is a criterion for the grant of a protection visa that at the time of application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the family unit of a person who is also an applicant and has made such claims: cl. 866.211 of Schedule 2 of the Regulations.

9 It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl.866.221 of Schedule 2 of the Regulations.

10 The remaining criteria for the grant of a protection visa are, generally speaking, that the applicant has undergone certain medical examinations and that the grant of the visa is in the public and the national interest: cl. 866.22 of Schedule 2 of the Regulations.

11 "Refugees Convention" is defined by cl. 866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol relating to the Status of Refugees (the Protocol). As a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined.

12 Insofar as relevant to the present matter, Article 1A(2) of the Convention as amended 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; . . "

13 Date for determination of refugee status. Whether or not a person is a refugee for the purposes of the legislation is to be determined upon the facts existing at the time the decision is to be made although the circumstances existing at the time the applicant fled his country will ordinarily be the starting point in ascertaining his present status. (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (at 387, 391, per Mason C.J.; at 399, per Dawson J.; at 405-406, per Toohey J.; at 414, 415, per Gaudron J.; at 432 per McHugh J). The issue of the relevant time for assessment was addressed by Wilcox J. in Lek Kim Sroun v The Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 493; (117 ALR 455) who, after examining the judgements in Chan's case, held that the date of determination is the relevant date for assessment.

14 "Well-founded fear". The test for a well-founded fear of persecution contains both a subjective and an objective component (Chan's case, at 396). Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality. There must be a "real chance" that the applicant will be persecuted for a Convention reason if he or she is returned to the country of nationality. A "real chance" is one that is substantial as distinct from remote (Chan's case, at 389, 398, 406-407); 'Obviously, a far-fetched possibility of persecution must be excluded' (per McHugh J at 429).

15 The Full Federal court in MILGEA v Che Guang Xiang, (unreported No. WAG 61 of 1994), reiterated the Chan test for well-founded fear (at pp15, 16, 17). That is:

'A "real chance" that persecution may occur includes the reasonable possibility of such an occurrence but not a remote possibility which, properly, may be ignored. It is not necessary to show that it is probable that persecution will occur. A well-founded fear of persecution may be grounded upon the possibility of such an occurrence. Indeed the fear that such harm may be suffered may be well-founded even though such persecution is unlikely to occur. . . The delegate may have thought it was unlikely that Che's fear would be realised but the question to be answered was whether the prospect of persecution was so remote as to demonstrate the fear to be groundless.'

16 Persecution. The word "persecuted" is not defined in the Convention. Not all forms of selective or discriminatory treatment by a State of its citizens, will amount to persecution.

The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason." (Chan's case at 388 per Mason CJ)

" Not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes "being persecuted". The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment. Nor is it a necessary element of "persecution" that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm, and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution. . . Moreover, to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution"for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution. . . [P]ersecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination. Hence the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society, such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a convention reason. (Chan's case, per McHugh J at 430 - 431).

17 The meaning to be given the words 'being persecuted' was further elucidated by the Full Federal court in Che, at p15, where the Court said

'Denial of fundamental rights or freedoms, or imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidating the expression of political opinion will constitute persecution. Even if such actions are solely motivated by reason of a person's membership of an "anti-revolutionary family", they may amount to persecution for reasons of political opinion.'

18 Refugee sur place - A refugee sur place is a person who was not a refugee when he or she left his or her country but who becomes one at a later date.

19 The applicant's case is set out in his application for refugee status to be found on his Departmental file, as well as information and submissions given to the Tribunal.

20 The applicant attended a hearing of the Tribunal on 14 November 1996.

21 The applicant was born in West Beirut, and lived there until he left Lebanon in 1994. He is a Christian, although West Beirut is a predominantly Moslem area. He finished high school in 1988 and started a tertiary degree in political studies. Due to the fighting in Beirut, he did not complete his degree. After working for a short while in a library he worked in the family restaurant business for about three years. He stopped working there in 1993, as the profit from the business had slumped and the family could no longer afford to employ him. He worked as a private English tutor for about five or six months.

22 In August 1994 he went to the United Kingdom. He was enrolled at a College to study xx. He found London expensive and did not enjoy life there. He has an uncle in Australia who told him life was better here, so he came to visit the uncle.

23 He said he himself had no problems in Lebanon. Some things had happened to his family, and that was why he did not wish to return. In 1975 a cousin had been killed, he does not know who by. Between 1980 and 1985 some friends who worked at the American Hospital in Beirut were kidnapped. In about 1986 the family's restaurant was damaged by Moslem fundamentalists who objected to the serving of alcohol.

24 He said that the fundamentalists are getting more influence and control and he does not wish to live in a country controlled by Moslem fundamentalists.

25 He said that he is a born-again Christian. However he said he could live in Beirut if he returns to Lebanon, he would be able to practise his religion. He has no personal fears of the fundamentalists, he just does not want to live in a country which they control.

26 In Australia there is freedom and law and order. He has a job here, and would like to live here.

27 I accept that the events which the applicant mentioned occurred. I accept that the applicant would prefer to live in Australia rather than to return to Lebanon.

28 It was put to the applicant that following the recent elections in Lebanon Hezbollah has seven deputies, and two allies in a 128 - member Chamber, which is fewer than in the previous government (Department of Foreign Affairs and Trade cable BI1597, dated 18 September 1996). The applicant agreed that this was so, but said the fundamentalists also had militias.

29 The Tribunal accepts that Syria exerts control over the Government of Lebanon, see, for example, Immigration and Refugee Board Documentation Centre, Ottawa response, dated 28 April 1992. See also Department of Foreign Affairs and Trade (DFAT) cable, DM40921, dated 25 November 1993, states

Several allegations have been made during the year by the Maronite opposition of the arbitrary arrest of Aounists and others protesting against the Syrian presence in Lebanon.

30 More recently, the US State Department Report 1995 stated:

Non-Lebanese military forces control much of Lebanon. These include about 30,000 Syrian troops, a contingent of Israeli army regulars, an Israeli-supported militia in southern Lebanon, and several armed Palestinian factions. All undermine the authority of the central Government and prevent the application of law in areas not under its control.

31 There is ample evidence that those who are actively opposed to the Syrians have suffered persecution. Amnesty International Reports show that supporters of General Aoun had been arrested during 1994 for distributing leaflets and other activities (Amnesty International Report 1994, p193)

32 Those who are strongly identified with opposition groups may find themselves the targets of Syrian interest. The Tribunal accepts that the human rights and security situation in Lebanon still causes difficulties for those who live there. The Tribunal accepts that there is a pervasive Syrian influence in Lebanon. The Tribunal also accepts that there are widespread human-rights abuses, with those who are anti-Syrian the most likely to suffer such abuses, as least in those parts of Lebanon not controlled by Israel.

33 However the applicant has not claimed any political involvement.

34 It is quite possible that if the applicant returns to Lebanon, he will face difficulties that are inherent in an economy and society struggling to return to normal after 15 years of civil war. The difficulties he will face are not because he is differentially at risk, but rather because he is no different to every other citizen.

35 I note DFAT cable BI1166, dated 25 June 1996, which states in so far as is relevant:

(A) The general situation in Lebanon is stable, and it is safe for citizens to return to the country. Certainly, many Lebanese and foreigners believe this to be true: airline companies advise us that air traffic to Beirut airport picked up immediately after the end of operation 'grapes of wrath' in April, and is now at normal summertime levels. We would add that many Australian-Lebanese are returning not only for the summer season, but also for permanent residence.

In those areas under the Lebanese government's authority, i.e. the entire country outside the Israeli-occupied 'security zone' in the south, public security is good.

36 Professor Hathaway (The Law of Refugee Status, Butterworths Canada Ltd, 1991) writes at pp. 93-94:

"Because ... refugee law is concerned only with protection from serious harm tied to a claimant's civil or political status, persons who fear harm as a result of a non-selective phenomenon are excluded. Those impacted by natural calamities, weak economies, civil unrest, war, and even generalised failure to adhere to basic standards of human rights are not, therefore, entitled to refugee status on that basis alone.

"This having been said, refugee law does extend protection even in these situations where there is some element of differential intent or impact based on civil or political status. The genuineness of claims grounded in a form of broadly based harm, like all others, is a function of two basic issues. First, is the anticipated state-tolerated harm of sufficient gravity to constitute persecution? If so, is there a connection between the risk faced and the claimant's religion, nationality, social group, or political opinion? If the harm is both sufficiently serious and has a differential impact based on civil or political status, then a claim to Convention refugee status is made out, however many people are similarly affected."

"In sum, while modern refugee law is concerned to recognise the protection needs of particular claimants, the best evidence that an individual faces a serious chance of persecution is usually the treatment afforded similarly situated persons in the country of origin. In the context of claims derived from situations of generalised oppression, therefore, the issue is not whether the claimant is more at risk than anyone else in her country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm in her country, and if the risk is grounded in their civil or political status, then in the absence of effective national protection she is properly considered to be a Convention refugee."

... the Convention today remains firmly anchored in the notion of elevating only a subset of those at risk of war and violent conflict to the status of refugee.

... the mere fact that the conflict escaped is based on religion or politics is not relevant unless persons of a particular religion or political perspective are differentially at risk.

... while the general proposition is that the victims of war and violence are not by virtue of that fact alone refugees, it is nonetheless possible for persons coming from a strife-torn state to establish a claim to refugee status. This is so where the violence is not simply generalised, but is rather directed toward a group defined by civil or political status..."

39 Based on all the evidence available, and in the light of the discussion above I make the following findings:

40 The applicant is a young Lebanese Christian man. He left Lebanon to further his education. His family suffered to some extent during the Civil War which plagued Lebanon for over 15 years from 1975.

41 The applicant has not in the past faced persecution based on a Convention ground. He did not leave the country because he had a fear, yet alone a well-founded fear, of persecution. The situation has not changed in such a way that he now faces a real chance of persecution should he return.

42 Based on the evidence available to me, and the findings I have made on that evidence, the applicant does not satisfy the definition of refugee in that:

Although he is outside his country of nationality, and is unwilling to avail himself of the protection of that country, he does not have a well-founded fear of persecution, in the sense that there is no real chance that he will be persecuted when he returns to Lebanon.

43 The Tribunal is not satisfied that the Applicant is a refugee and affirms the decision not to grant a protection visa.

[1]In accordance with s.431 of the Migration Act 1958 (C'th), (as amended),the published version of this decision does not contain any statement which may identify the applicant or any relative or other dependant of the applicant.