1611673 (Refugee)

1611673 (Refugee) [2019] AATA 5311 (13 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611673
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Denis Dragovic
DATE:13 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2019 at 3:33pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – capacity to meaningfully participate in hearing – mental health condition – religion – Alawite – tension with neighbouring Sunni suburb – Bab al-Tabbaneh–Jabal Mohsen conflict – political opinion – pro-Syrian regime – relatives’ involvement with the Arab Democratic Party – veracity of country information – current security situation in Jabal Mohsen – possibility of rising extremism in Tripoli – geopolitics of the Middle East region – ability to subsist – availability of mental health services – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Lebanon, applied for the visa on 16 November 2015. Having viewed a copy of the applicant’s passport I find that he is a citizen of Lebanon and therefore the receiving country is Lebanon.
The delegate refused to grant the visa on the basis that while the applicant was found by the delegate to face religious persecution upon return to his home in Jabal Mohsen, Lebanon, the delegate determined that the applicant could relocate to Tripoli.
Introduction to the applicants claims: The applicant, a Lebanese national [age] years of age, is from Jabal Mohsen, a suburb of Tripoli in northern Lebanon. Jabal Mohsen is claimed to be an area inhabited by Alawites and the applicant himself claims to be an Alawite. He claims to have been harmed in the past because of his faith. He fears returning to Lebanon because of his faith and the animosity shown to Alawites by Sunni Muslims. He fears that his family’s involvement in support of the Alawites in Jabal Mohsen will further expose him to risk. He fears his ability to find subsistence employment. He fears the current security and political situation in Lebanon.
The applicant’s overseas file used for his application for a student visa had a s.438 certificate. I raised this with the applicant and his representative at the hearing. I expressed an inclination to find the certificates valid, nevertheless, I went through the documents behind the certificate by providing a summary. I explained that they included administrative documents that showed the security checks which the Australian government progresses through prior to providing a visa along with internal administrative decision making processes. These are of a nature that are general and do not relate in any way to the applicant’s claims. I stated that they were not relevant to this case. I provided the certificate to the representative. The representative noted that on the proviso that none of the material was adverse that she had no further comment to make.
There is no evidence before me to indicate that the applicant could seek protection in a third country and as such I find that the applicant does not have a right to enter and reside in a country other than his country of citizenship.
On the day of concluding this decision I reviewed news sites and CISNET to ascertain the latest relevant information to the situation in Lebanon which may affect the applicant in any way.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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 the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Meaningful hearing
The applicant was not on any medication at the time of the hearing.
The applicant provided a copy of a 2016 psychologist’s report on the applicant’s mental health as well as a letter summarising a psychologist’s views dated 12 September 2019. Based upon these submissions I emphasised to the applicant that he could request additional breaks at any time and that if he required any additional support so as to be able to participate meaningfully in the hearing that he should raise this with me.
I acknowledge the 2016 report in which the psychologist analyses the self-reported test results. The psychologist’s report assesses that the applicant has extremely severe depression, normal anxiety levels and stress in the mild range. In addition the applicant presents with an ‘array of severe somatic complaints’ including fatigue, irritability, being unable to relax, restlessness, headaches, dizziness, difficulty sleeping, constant worry, intrusive thoughts and poor concentration’. I also acknowledge the 2019 letter and the diagnosis of experiencing PTSD and a major depressive episode.
Neither report made a comment on his capacity (or incapacity) to give evidence at a hearing, nevertheless, at all times through the hearing I reflected on the applicant’s opportunity to participate in a meaningful hearing to give evidence and present arguments. I find that the applicant was lucid, his answers coherent and his manner responsive. As such I am satisfied that the applicant had a meaningful opportunity to give evidence and present arguments.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and findings of fact
The applicant claims to be an Alawite from Jabal Mohsen. He claims that he grew up and his family continues to live in [Street 1] in Jabal Mohsen. I accept this as fact.
The applicant claims to have completed year [level]. The applicant then attended the [Institute 1]. The applicant claims to have worked as a [Occupation 1] for three years and has worked as a [Occupation 2] from 2003 through to 2013 or 2014 just prior to coming to Australia. The applicant claims to have stopped [Occupation 1] as the [business] where he [worked] closed down. I accept this as fact.
The applicant has [number of] brothers and [number of] sisters. [Two siblings live in Australia] and the remaining siblings along with their parents live in Jabal Mohsen. I accept this as fact.
The applicant states that upon his physical appearance alone people would not be able to identify him as an Alawite. The applicant claims that he is identifiable as an Alawite because of his address and name. I accept that the applicant’s address and name identify him as an Alawite but not his appearance.
The applicant claims that his name, [Name 1], which is the Arabic for [meaning], sets him apart and puts him at risk. I put to him at the hearing general information that [Name 1] is considered a Muslim boy’s name.[1] He responded that just by his name he would be considered Alawite. Giving the applicant the benefit of the doubt I accept that by his first name alone he would be considered Alawite.
[1] [Information deleted].
The applicant described the incidents he had faced in the past. The first incident occurred when he was working as a [Occupation 2]. Part of his job was to [perform specified tasks]. He needed to deliver some [goods] a few weeks after a series of explosions [in] August 2013 hit two Sunni mosques. The customer he was supposed to deliver the product to had his shop in [specified location] of Tripoli. According to the applicant tensions were high in the city. The shop owner had told the applicant that it was safe for him to travel to his shop. When he arrived three others who were working there recognised him. The applicant claims that while he was returning they intercepted him. He claimed that he parked his car outside of the market, quite a long distance, and while walking back to his car inside the market area they assaulted him. He claims that there were some people who stopped the attackers. He claims that he was injured from the attack but didn’t go to the hospital.
The second incident, according to the applicant, took place in March 2014 when he and his brother were going to an area outside of Jabal Mohsen and had to pass through a check point in Tabbaneh. They were stopped and had their IDs taken from them. Based upon their surnames and direction of their travel they were confirmed to be Alawite. The people made them get out of the car and they started to beat them. He claims that his fingers were injured. He claims that he went to a health clinic for treatment.
I accept that the two events occurred as described by the applicant.
The applicant claims that his home is on the border of two suburbs and is in the firing line. Bab-al-Tabbaneh is Sunni and Jabal Mohsen, Alawite. He claims that his house is facing Tabbaneh but that he lived on the ground floor. I put to him that it seems from what he has described that he does not face additional risk based upon the geographic location of his house. He said that it was risky, noting that when the clashes were happening his place was directly subjected to mortar shells and bullets. I put to him that because Jabal Mohsen was on the hill[2] and Tabbaneh below and because he lived on the ground floor, in a [street] in the middle of Jabal Mohsen I found it hard to believe that it was exposed. The applicant responded that Jabal Mohsen is only slightly higher and not on a high hill. He said that buildings from Tabbaneh and Jabal Mohsen could be facing each other at the same level. He said that if he went out of his house he would be able to see the people moving in Tabbaneh. I do not accept that the applicant’s place of residence is unique within Jabal Mohsen such that it adds a level of risk to the applicant above and beyond that of other residents.
[2] UNICEF, Jabal Mohsen: Neighbourhood Profile, Tripoli, Lebanon, December 2018 >
I put to the applicant country information regarding the general security situation in Jabal Mohsen: ‘In the years after clashes wracked the two neighbourhoods, social interaction between them has markedly increased’.[3] The applicant responded that when the clashes settled there was a security plan developed and that some associations and charities were established with the aim to increase interaction between the communities. He said that that was on paper and for the purposes of being disseminated to the media. He claimed that in actual fact the interactions were limited despite the community organisations working hard but they couldn’t achieve more than a minimum. He believes that the charities want to achieve something but no social interactions occur. He claims that the only interaction is based upon work when they need to go there. I do not accept the applicant’s reasoning to dismiss the report and prefer his own evidence in part because of his absence from Lebanon for an extended period of time whereas the country information is from a respected sourced and timely. As such I give greater weight to country information in instances where all things being equal the applicant provides alternative verbal information.
[3] Michal Kranz, ‘How formerly embattled Tripoli neighbors are now struggling together’, Al-Monitor, June 18, 2019 >
The applicant claims that his relatives are associated with the Arab Democratic Party (ADP) and have provided support to the security of Jabal Mohsen. The applicant claims that his family have been involved in the Jabal Mohsen militia which was coordinated through the ADP. I accept that his family were associated with the ADP and some family members were involved in their militia. I put to the applicant that country information states that the party provides social aid to needy party members and supporters.[4] I asked whether as a result of the country information if it was positive for him that his family were members of the party. He said that the report is not accurate. He claimed that the assistance provided has decreased a lot, because the head of the party is not in Lebanon and as such there is no proper financial assistance or health care or food support provided to members or supporters. I accept that the applicant’s family have been involved in the ADP and have contributed to the militia. I also accept country information which indicates that the applicant may be able to access aid from the ADP.
[4] UNICEF, Jabal Mohsen: Neighbourhood Profile, Tripoli, Lebanon, December 2018 >
Relevant to the applicant’s fears of being unable to find work, I noted that the UNICEF report mentions employment (excluding self-employed) to be at 40% overall in Jabal Mohsen. He responded that most of those jobs are in the army or as teachers and that he is above the military age and that he doesn’t have the education to become a teacher. This is not the case. The report states that only 5.1% are in the armed forces while nearly 12% are shop workers or drivers and 26.5% professionals (which would broadly include teachers). I note that the male employment rate is 55%. I note that the same report states that self-employment is the main source of income for 68% of the households. Considering the applicant’s education being above average as discussed at the hearing and his solid work experience ([Occupation 1] for three years and [Occupation 2] for ten years) I do not accept that the applicant would be unable to find some form of work in Jabal Mohsen or that the applicant would face employment discrimination.
We discussed the applicant’s psychological report. The applicant was seeing an Australian psychologist twice a month for three months in 2016. He then stopped and started seeing another psychologist about two months prior to the Tribunal hearing. He claims to have seen her three times. I put to the applicant that it seems he is seeing a psychologist for evaluation purposes rather than treatment. He claims that the reason he started to see a psychologist was for treatment but stopped because the discussions took a different path that he was not happy with. According to the applicant the discussions were about religious matters and he did not like discussing religion. So he said he looked elsewhere. I note that it was three years before he found another psychologist. I put to the applicant December 2018 country information that states the El Zahraa Dispensary in Jabal Mohsen has mental health services that were supported by Medicins Sans Frontier.[5] The applicant claimed that this was not true. He said that the clinic mainly provides services for emergency cases and disputes that there is a mental health specialist there. In a post-hearing submission country information was provided that listed the services of the clinic which did not include mental health support. This contradiction in country information could arise from the website provided by the applicant being older than the December 2019 report, alternatively that the mental health support provided by Medicins Sans Frontier has not been certified or a myriad of other possibilities. For the purposes of this decision I find that the El Zahraa Dispensary has personnel with an awareness of mental health but that there aren’t any psychologists available.
[5] Ibid p.25 and Appendix 2.
In the second paragraph, page 6 of the representative’s submission there is a reference to the UNICEF report’s discussions of the Alawite Islamic Council providing psychological support. The representative questioned accessibility to those services and the quality of the services. While I accept that the services provided by doctors in the Islamic Council may not be to the standard available in Australia or that they would be resourced to the levels in Australia I take on face value UNICEF’s reporting of the availability of services.
We discussed the current security and political situation in Lebanon and his fears of a possible war between Israel and Lebanon. The applicant claims that the situation is more serious than what can be seen from outside. He stated that he lived through and witnessed the Lebanon-Israel war of 2006 which lasted for one month. He said that he knows the circumstances surrounding that war. He claims that the current situation is escalated and is worsening. He claims that Israel has threatened to bomb all of Lebanon. He claims that this time it would not be only a war between Hezbollah and Israel. He said that in 2006 Hezbollah was targeted but now Israel is threatening to destroy all of Lebanon. The current threats being exchanged are serious. He stated that war will come soon. The other factor that he fears is the crisis with Iran. He claims that Hezbollah has promised that if Lebanon is bombed then Iran will begin a battle with Israel. In such case he believes it will be a comprehensive war. Lebanon is a small country with a small area and it will be destroyed. I find that the applicant’s predictions on the outcome of geopolitics in the Middle East are speculative.

The applicant also mentioned the Syrian crisis. He claims that the current situation in Syria has a sectarian identity. The Syrian president is Alawite. He claims that in Lebanon, some are with the Syrian government and others are against. There are a big number of Syrian refugees who are against the regime. He is afraid that due to his political views that support the Syrian regime he fears being subjected to more problems. He claims that he has heard that many of the fighters who went to Syria are returning to Lebanon after they lost their battle with the regime. He believes that they will target each and every person who is pro-Syrian. It would be their chance to take their revenge. I accept that the applicant is pro-Syrian regime. I find that the applicant’s support of the Syrian regime would not be known to those that may seek to harm supports of the Assad regime other than through an imputation arising from the practice and profession of his faith and those indicators that identify him as an Alawite such as his name and address.
Veracity of the UNICEF report
I referred the applicant to a UNICEF report on Jabal Mohsen from 2019. He responded that he hadn’t seen the report and he is not sure about it. I provided the report to the applicant and gave a period following the hearing for the applicant to review the information put to him from the report at the hearing. In a subsequent submission the standing of the report was queried which I now address.
The applicant’s representative questioned the veracity of the UNICEF report, a source of some of the country information presented to the applicant by the Tribunal. The representative raised questions over the methodology adopted by the authors of the UNICEF report. The questions raised by the representative included for example a lack of information on the number of participants in a focus group. I note that the lack of information is not indicative of a poor methodology. The report provided an extensive section on the adopted methodology. I reviewed the methodology and for the purposes of the information arising from the focus group discussions, which the representative queried, and drawing upon my understanding as an academic in the social sciences, I am satisfied that the methodology adopted was adequate.
The representative questioned other aspects of the report. Regarding psychological support available to residents in Jabal Mohsen the representative claimed that based upon the youth facing psychological challenges that this implies that the claimed services for mental health aren’t available. This is a simplistic conclusion that misunderstands how mental health issues present and are treated. That mental health issues persist among a population and that there are mental health services is not an internally incoherent or illogical statement.
The representative went on to criticise the UNICEF report’s use of the term ‘Alawite regime’ when referring to the Bashar al-Assad government in Syria. The criticism is that the government of Syria is not solely an Alawite regime but rather the leadership is Alawite. The implication is that the report is not a professional document. While I accept that this is technically correct the short hand reference to the regime’s religious makeup does not detract sufficiently from the overall report to question other findings.
The representative questioned apparently contradictory evidence provided to UNICEF and inferred that this questioned the integrity of the entire report as the information provided to the authors or how it was interpreted was politically biased. The apparent contradictory evidence was that a mukhtar[6] participating in the focus group discussions is noted as saying that there is no presence of Lebanese Internal Security Forces in Jabal Mohsen while an officer from the Lebanese Internal Security Forces is quoted as saying that they have a presence. I note it appears from the language used in the report that the report interviewed a single mukhtar. I note that the report states that the mukhtar said, ‘There is a presence of formal security forces in the area and their relationship with the residents is very good.’ (page 19) and ‘residents feel safe to move outside the neighbourhood for social or professional purposes due to the Lebanese Army’s presence in the area.’ (page 20) It is not clear where the report states that a mukhtar was quoted as saying that there is no presence of ISF. Having reviewed the report in detail I do not give this criticism weight.
[6] According to the UNICEF report’s Glossary a mukhtar is, ‘The representative of the smallest state body at the local level in Lebanon. The latter can have several mukhtars, according to its population. As an administrative officer, the mukhtar is responsible for some of the official functions established among the people of his/her community, such as registration for national registers, births, deaths and marriages.’
The representative added other concerns on the report including a wrongly indicated road on a map which I give little weight to.
The submission also raised concerns over the report’s apparent inaccuracy over the population of Jabal Mohsen. This concern is ill-founded. The statistics provided in the UNICEF report are of residents while the article the representative references are of people on an electoral roll. It is difficult to compare the two as they represent different divisions from within a particular cohort. The electoral roll includes people who can vote. The number of residents includes those who reside in a place regardless of whether they can vote. Furthermore, problematically, the submission does not give a reason as to why I would give greater weight to a news article from Aawsat rather than a field study by two UN agencies, the city of Tripoli and a university. As the figures are different cohorts there is no contradiction.
Overall, in reviewing the representative’s concerns about the integrity of the report and in turn the reliability of the conclusions of the report I find that they are not founded. I find that the report is reliable.
Considerations
The applicant fears harm for being Alawite. He fears being identified as Alawite during travel to and from Jabal Mohsen. The exit out of Jabal Mohsen, according to the applicant, requires exiting across Tabbaneh, which is Sunni dominated and has in the past been the source of attacks against Jabal Mohsen. The applicant claims that when there are clashes between Tabbaneh and Jabal Mohsen then people leaving Jabal Mohsen face a risk of harm. The applicant fears harm for reasons of religion, imputed political opinion and membership of a particular social group. The applicant also fears the Sunnis in Tripoli as he believes that it is a Sunni stronghold, that ‘black flags’ are seen in the city and that it is becoming more fundamentalist.
Fear of harm for being Alawite
The applicant is an Alawite who lived in an Alawite dominated neighbourhood, Jabal Mohsen. He is a supporter of the neighbouring Syrian regime which is led by an Alawite and supported by many Alawites. There have been periods of heightened tension between the Alawite suburb of Jabal Mohsen and local Sunni groups from neighbouring suburbs. In particular the predominantly Sunni residents of the neighbouring area of Tabbaneh have fought against the Alawites of Jabal Mohsen. During some of the periods of tension the applicant has been affected including in March 2014 when clashes led to 25 deaths over a period of 9 days.[7] In April 2015 a Lebanese armed forces security plan for the area was implemented.
[7] Naharnet Newsdesk, ‘25 Dead, 175 Hurt as Tripoli Fighting Enters 9th Day amid Call for Unilateral Ceasefire’ Naharnet 21 March 2014 >
I read to the applicant from a UNICEF report on Jabal Mohsen from 2019, ‘Safety and security concerns were reported during FGDs (Focus Group Discussions) to be prevalent among children (0–14), youth (15–24) and female adults (25–63) in Jabal Mohsen; however, male adults (around 24 per cent of residents) and the elderly aged 64 and above (around 5 per cent of residents) did not mention anxiety related to security issues.’[8] At the hearing he responded that he hadn’t seen the report. In the post hearing submission the report was queried and alternative information was provided which is discussed above.
[8] UNICEF, Jabal Mohsen: Neighbourhood Profile, Tripoli, Lebanon, December 2018 >
I read to the applicant information from DFAT:
2.46 The conflict in Syria has increased tensions between communities in a number of areas. Historical tensions between Sunnis and Alawites in the adjoining Tripoli neighbourhoods of Jabal Mohsen (predominantly Alawite) and Bab-al-Tabbaneh (predominantly Sunni) escalated in the early stages of the Syria conflict, particularly around ‘Syria Street’ (the dividing line between the two communities), leading to regular rounds of communal violence that killed over 200 people. Lebanese authorities implemented a security plan in April 2015 that re-established a Lebanese Armed Forces presence in the area. DFAT understands that this has succeeded in significantly reducing the number of serious incidences of communal violence, although underlying tensions remain.
The applicant had no comment. He said that he has been in Australia for five years and is not sure on how the conditions have changed.
I accept that DFAT’s use of the term ‘reducing’ is a relative measure and as such not directly applicable to the relevant test, but when held alongside the UNICEF focus group discussion in which male adults (around 24 per cent of residents) did not mention anxiety related to security issues and further reporting from 2019 that social interaction between the two neighbourhoods has markedly increased (Al-Monitor report f.n.3), the overall view I find is that the situation in Jabal Mohsen has stabilised sustainably into the reasonably foreseeable future.
I now turn my mind to the risk the applicant faces as an identifiable Alawite within the context of living in Jabal Mohsen and everything that this entails including regularly driving in and out of the suburb. I acknowledge the representative’s reference to the UNICEF report’s focus group findings that participants expressed a fear of moving outside the neighbourhood. I give this some weight, but I also note that the DFAT report clearly is referring to the security situation arising from the conflict between the two neighbourhoods and the Al-Monitor report refers to the situation of both neighbourhoods. I also note the country information provided by the representative in which it notes the challenges and potential risks but notes the progress made recognising the work of NGOs as contributing to improvements to the social environment (Tribunal f.118b). I recognise that the situation could change in the future were the Lebanese government to choose to withdraw its forces, were NGOs to have funding reduced or were the war in Syria to take a different turn but there is no indication that these scenarios would occur. The situation in Jabal Mohsen and more broadly the Tripoli area has experienced some tumultuous periods in the past but prior to them there was stability and following them, since 2015 there has been stability.
Overall, I accept that some residents as per the UNICEF report along with the applicant have a subjective fear but subjective fear (or lack thereof) is only one marker of the security situation which should be taken into consideration alongside others. When reading the DFAT report alongside the views of the mukhtar from the UNICEF report and taking into consideration the uniformly positive country information on the presence of the Lebanese security forces and the various country information shedding a positive light on the community ties being built including from the Al-Monitor article and the representative’s submission, I find that the security situation is such that being an identifiable Alawite living in Jabal Mohsen and travelling outside of Jabal Mohsen does not lead to the applicant facing a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of return.
The applicant has also expressed a concern about the security situation more broadly claiming an increase in fundamentalist markers in Tripoli such as black flags flying and women wearing the niqab. Country information was provided by the representative in a post- hearing submission in which it notes that there are fears of extremists returning from Syria. I accept that there is the possibility of rising extremism and returning fighters from Syria. But I also note that the country information provided by the representative (Tribunal f.52) states, ‘DFAT understands that the security operations conducted against Islamic State have succeeded in reducing the threat the organisation poses, although ‘lone wolf’ attacks cannot be ruled out.’ I accept that there are many different fundamentalist fighters in Syria who may cross into Lebanon and this is not limited to Islamic State fighters and as such give this only limited weight, but on the same page the country information provided by the representatives states that the government is aware of the risks of sectarian violence and that the Criminal Code has provisions prohibiting calls to strife and sedition and concludes that DFAT assesses that the authorities are committed to preventing violence between religious communities. While this doesn’t indicate with certainty that they will be successful I give the government’s past success some weight and treat their past willingness to allocate resources as an indicator of an ongoing future intention to allocate resources to quell risks into the reasonably foreseeable future. Taking this information into consideration I find that the applicant does not face a real chance or a real risk of being a victim to an attack from such individuals.
I have also considered whether the applicant faces discrimination amounting to serious or significant harm as an identifiable Alawite beyond Jabal Mohsen. I put to the applicant the following country information from DFAT:
3.16 DFAT assesses that members of recognised religious groups do not face any official discrimination on the basis of religion. Members of recognised religious groups who are in the minority in particular geographic areas may face low-level societal discrimination, which may include being precluded from access to employment or housing but is unlikely to include violence.
The applicant responded that according to the constitution this is right, but in reality it is not correct.
As the DFAT report states, members of recognised religious groups do not face any official discrimination on the basis of religion. The applicant noted that he had been away for five years and as such could not comment. I note that the DFAT report also suggests that members of recognised religious groups who are in the minority in particular geographic areas may face low-level societal discrimination. Even if I were to accept that the applicant is a part of a minority in the wider Tripoli area the presence of low level discrimination as described by the DFAT report I find does not amount to serious or significant harm. Based upon the country information I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from official discrimination for reasons of being an Alawite in Lebanon.
Fear of harm from Middle East geopolitics
The applicant provided information on the political and security situation in Lebanon and the geopolitics of the region in their pre-hearing 12 September and post-hearing 7 October submissions. I have reviewed all of these but have not specifically referenced each as many make similar claims and provide overlapping information.
The applicant fears an escalation in tensions between Israel and a heightening of tensions within Lebanon with the involvement of outside forces including Iran. He claims that Israel has threatened to bomb all of Lebanon. The applicant did not provide any supporting evidence of such claims. The representative, in a one line statement buried among other claims and materials, suggested that the Israeli Security Forces could restrict the applicant’s movements. This was not raised at the hearing. I am concerned by the representative’s decision to include the statement in the submission. Considering that the applicant is from the northern region of Lebanon while any past Israeli incursion was limited to the southern regions and Beirut there is no reasonable basis upon which to make such a claim. For clarity, I do not accept that Israeli Security Forces could limit the applicant’s movements.
The applicant fears Iran’s involvement in support of Hezbollah would lead to Iranian retaliation against Israel and a conflagration in the Middle East. The applicant did not submit any evidence in support of his analysis.
The representative has argued that in considering the applicant’s specific circumstances attention needs to be given to the broader geopolitical situation. Specifically they claim that ‘to gauge whether tensions will increase the political situation in Syria must be taken into consideration.’ While I accept that politics does influence the future it is speculative to suggest how the Syrian conflict or the broader geopolitical situation in the Middle East could play out and how this may impact Lebanon and in turn how the Lebanese could possibly react and what circumstances the applicant would face.
The representative claimed in a post-hearing submission that due to limited medical facilities, if the applicant was to be harmed by ‘generalised violence’ he would face serious health concerns because of a limited amount of health services. I have considered this in the assessment of whether the applicant would face a real chance of serious harm or a real risk of significant harm as the quality and availability of medical services would mitigate or exacerbate any harm.
Taking the overall evidence into consideration I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from an escalation of tensions in the region that in turn directly impacts Lebanon and the applicant.
Fear of harm from relatives being members of the Arab Democratic Party
The applicant’s claims that his relatives’ involvement with the Arab Democratic Party and contributing to the Alawite militia would put him at risk were discussed at the hearing. In considering the circumstances as described by the applicant and as arising from the country information discussed with the applicant I find that being related to a member of the Arab Democratic Party or one who is involved with a militia would not raise the applicant’s level of risk. The reason I reach this conclusion is that the threats the applicant faces are not from the state. They are from neighbourhood groups that have formed into militias who subsequently establish ad hoc check points, fire randomly into Jabal Mohsen and grab opportunities that present themselves. For the applicant’s familial relationships to be exposed it would require intelligence, sophistication and targeting, none of which is being claimed or is evident from the material. As such I find that the applicant’s blood relationship to members of the Arab Democratic Party and those who were involved in the Alawite militia would not expose the applicant to a real chance of serious harm or a real risk of significant harm.
Fear of harm from an inability to subsist
The applicant claims that he would be unable to find work in Jabal Mohsen as there are no jobs and that he would have to look elsewhere. He said that he doesn’t have a profession and as such he would need to be mobile and would need to regularly travel outside of Jabal Mohsen. For these reasons the applicant fears his ability to subsist.

When asked if he would have problems finding work because he was an Alawite the applicant responded that employment was limited in Jabal Mohsen and that he would need to look for work elsewhere. The applicant did not claim that he would be unable to find work because of his faith, but rather he fears having to travel out of Jabal Mohsen and believes that there are limited job opportunities in Jabal Mohsen. I have considered above his ability to travel outside of Jabal Mohsen and found that by doing so the applicant does not face a real chance of serious harm or a real risk of significant harm. I also found that despite high levels of unemployment the applicant would be able to find some employment. Considering that the applicant can travel outside of Jabal Mohsen and that he would be able to find some employment I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from an inability to subsist.
In a post-hearing submission the representative suggested that the applicant may face significant harm from ‘business owners, who can subject the applicant to scrupulous work conditions.’ No country information was provided. This claim was not raised at the hearing. The applicant has had prior work spanning over a decade and did not raise unscrupulous work conditions as a risk. In reviewing available country information[9] I did not find references that would suggest that ‘scrupulous’ work conditions could be a risk to the applicant. There is no suggestion that there are discriminatory unscrupulous work conditions. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the suggested unscrupulous work conditions.
Fear of harm from mental health
[9] DFAT reports, CISNET and Google.
The applicant’s representative provided mental health statistics from the DFAT 2019 report. I explained to the applicant that there is no evidence that there is an intentionality to withhold mental health services from Alawites or the applicant in particular. He said that his health would suffer particularly because of who he is. He reiterated that the sectarian differences are widespread. He claims that due to his mental health concerns he won’t be able to subsist. I asked how he subsisted during the worst of the conflict. He responded that at that time he was living and working within the same area but felt that he was living in an open prison without a way to get out. I put to him that he travelled to Tripoli for his music classes. He claims that he was going to Tripoli between 2008 and 2010 when the security situation wasn’t as bad as during the beginning of the clashes.
The applicant expressed a fear that his mental health challenges would be unmet were he to return to Lebanon. There is no evidence that mental health services were being withheld from Alawites. The representative extracted a block of evidence from the DFAT report relating to the general circumstances of the mental health sector in Lebanon. No further analysis or insight was provided. The country information discussed at the hearing and noted earlier is more specific and tangible to the circumstances of the applicant and as such the DFAT report provides little additional value. The only pertinent element is a note that there is a stigma attached to those who seek assistance. I do not accept that a stigma would amount to serious or significant harm.
I note that the applicant has not engaged with mental health professionals in Australia for sustained treatment but instead appears to have engaged for the purposes of obtaining a report despite having free access to the services. He saw a psychologist in 2016 for a period of three months and then another prior to the Tribunal hearing in 2019. The applicant has chosen not to pursue opportunities to seek mental health support in a substantial way that would reflect a need or desire to treat his condition. Considering the limited engagement with mental health professionals in Australia and the availability of mental health services in Jabal Mohsen from the Alawite Islamic Council, were he to sometime in the reasonably foreseeable future choose to seek support, there is no indication that mental health services would be unavailable or selectively withheld. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of his mental health.
Other claims
The representative included excerpts from other cases purportedly related to the applicant’s claims heard by the Tribunal from 2016 and earlier. These were reviewed and where applicable and taking into consideration the circumstances including the dates of the decisions, the relevant arguments were considered.
I have also considered the applicant’s circumstances cumulatively, that is to say whether the applicant faces a real chance of serious harm or a real risk of significant harm when considering his circumstances as a whole. The applicant as described above and summarised here, is an Alawite who would return to a predominantly Alawite community into a context in which his relatives are involved in a pro-Alawite political party and militia. The geographic context is one of ongoing tensions with neighbouring Sunni suburbs. He would return bearing the burden of mental health challenges and a depressed economy. More broadly overhanging this are his fears of the geopolitical situation. In considering the entirety of his claims as discussed throughout this decision I find that the applicant does not face a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
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.
…
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.
…

[2019] AATA 5311

13 November 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction