1709163 (Refugee)

1709163 (Refugee) [2020] AATA 5543 (1 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709163
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Nathan Goetz
DATE:1 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 December 2020 at 4:03pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – sectarian conflict in Lebanon – separation from Australian citizen wife – credibility concerns – significant delay in seeking protection – flexible approach to the truth – migration history – application for permanent visa refused – 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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 15 July 1997 the applicant applied for a Spouse Combined (Offshore) (UF309/BC100) visa. On 13 July 2007 the applicant applied for a Sponsored Family Visitor (UL679) visa and this was refused on 19 July 2007.
On 27 June 2011 the applicant was granted the UF309 visa. He arrived in Australia holding that visa [in] July 2011.
On 22 April 2015 the applicant’s BC100 visa was refused. On 29 September 2015 the applicant applied to the Tribunal for a review of the refusal decision in case AAT [number].
The applicant was granted bridging visas on 29 September 2015, 14 October 2015, 11 November 2015, 10 December 2015, 29 and 29 January 2016.
On 9 March 2016 the Tribunal found it had no jurisdiction to review the decision to refuse the BC100 visa because the review application had not been lodged within the prescribed timeframes. On 21 March 2016 the applicant was granted another bridging visa. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision.
On 30 March 2016 the applicant applied for a Medical Treatment (UB602) visa. On 1 April 2016 that visa was refused. The applicant applied to the Tribunal for a review of the refusal decision. On 27 May 2016 the Tribunal affirmed the refusal decision in case AAT [number]. It was refused because the applicant did not lodge the medical treatment visa within the prescribed timeframe for lodgement.
On 30 May 2016 the applicant asked the Minister to exercise his powers under s.351 of the Act to substitute the Tribunal decision with a decision that would be more favourable to him. The applicant was granted bridging visas on 1 April 2016 and 18 April 2016. On 7 July 2016 this request was finalised with the matter not being referred to the Minister.
[In] October 2016 the Tribunal’s decision concerning the applicant’s BC100 visa refusal was upheld by the Federal Circuit Court in [case]. The applicant’s proceeding were dismissed.
On 24 November 2016 the applicant applied for the protection visa. He was granted a bridging visa on 15 December 2016. He attended a delegate interview concerning his protection visa application on 1 February 2017. On 23 March 2017 the delegate refused to grant the protection visa.
On 26 April 2017 the applicant applied to the Tribunal for a review of the refusal decision.
On 30 November 2020 the applicant appeared at a Tribunal hearing to give evidence and present arguments in connection with his review application. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Arabic languages.
The applicant was represented in the review application by migration agent [Mr A] but he did not attend the Tribunal hearing. [Ms B] was present at the Tribunal hearing. She identified herself as an ‘assistant migration agent’ with the same business as the migration agent
The ‘Response to hearing invitation’ was completed and sent to the Tribunal the day of the hearing. The completed form did not request that the Tribunal take oral evidence from witnesses. However, at the Tribunal hearing, the applicant indicated that his wife [Ms C] and his stepdaughter [Ms D] were ‘witnesses’. Both were present at the Tribunal hearing. The applicant was asked how his wife and stepdaughter were relevant to his protection claims. The Tribunal was informed that his wife and stepdaughter were present as support persons. Given this, the Tribunal did not take oral evidence from them, and asked them to excuse themselves from the Tribunal hearing room, which they did. This was appropriate given that they were not witnesses who were relevant to the applicant’s protection claims.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has considered the material that has been provided in support of the applicant’s protection claims.
Protection visa application
According to the protection visa application form, the applicant identifies as a [age]-year-old male citizen of Lebanon. He was born in Tabbenah, Tripoli, Lebanon. He was married in Lebanon [in] June 1997 to an Australian citizen who was born in Lebanon. He identifies his ethnicity as ‘Arab’ and his religion as ‘Muslim’. His immediate family consist of his mother, father, [number of] sisters and [number of] brothers.
He provided his residential address history for Lebanon. From [year] until July 2000 he lived at [Address 1], Tripoli, North Lebanon. From July 2000 to July 2011 he lived at [Address 2], Tripoli, North Lebanon. His address from July 2011 is his address in Australia. His work history in Lebanon includes (from date order) being an [Occupation 1], being a [Occupation 2] and a [Occupation 3], being a [Occupation 4] and finally being a [Occupation 5].
The protection visa application form asked the applicant for ‘Your reasons for claiming protection’. The applicant directed the reader in response to all questions to ‘refer to the attached letter.’
In the attached letter, the applicant wrote that there were two primary reasons why he feared returning to Lebanon.
The first reason was the ‘sectarian conflict in Lebanon’. He wrote that his last place of residence in Lebanon was in Zahriyah and no longer exists. If he was to return to Lebanon, he would return to Tebanneh which houses a large population of Sunni Muslims. This neighbourhood is next to Jabal Mohsen where the Alawi group reside. The area is rife with sectarian violence. He noted the historic tension between the two groups and noted the most recent attack that took place [in] January 2015 where nine people were killed, and more than 30 people were wounded in a Jabal Mohsen café as a result of two suicide bombings in Tripoli. He wrote that returning to his home in Lebanon is not a viable option for him as his life would be endangered.
The second reason was that his wife had spent most of her life in Australia. While her background was Lebanese, she is ‘in essence Australian and accustomed to the Australian standard of living.’ Travelling to an area such as Tebanneh endangers the applicant’s life and his wife’s life. They do not wish to be separated or live apart. Travelling together is their only option. For this reason, he requested a protection visa in order to remain with his wife and live in a peaceful and secure place.
He wrote that this was a preliminary letter outlining the primary reasons for seeking protection and that ‘a more detailed letter will be provided with the application shortly’. The applicant did not provide the more detailed letter he foreshadowed in his protection visa application.
Oral evidence given at delegate interview
The applicant participated in a delegate interview which the Tribunal has listened to.
Oral evidence given at Tribunal hearing
At the Tribunal hearing, the applicant confirmed his migration history as outlined at the start of this decision. He told the Tribunal that he realised he needed to claim protection in Australia after his permanent spouse visa (that is, the BC100 visa) was rejected and he was required to return to Lebanon. The Tribunal noted that this occurred in April 2015 and asked whether this was when the applicant realised, he needed to claim protection. The applicant told the Tribunal that he knew about applying for protection earlier, but he came on a spouse visa.
He was asked about how he found out about Australian protection visas. He said that his migration agent told him that he would be eligible to apply but said that he found out about this a long time ago. He said that he knew about protection visas when he was in Lebanon because he knew people who came to Australia and applied for protection. They were people from the same area where he lived.
When asked what he feared would happen to him if he returned to Lebanon, he said ‘everything’ and queried what was good in Lebanon. When asked about whether he could be more specific, he said that he feared the area where he used to live as it is full of troubles. He said this area was Tabbeneh. The Tribunal asked the applicant who he feared would harm him. He said Hezbollah and Syrian allies who are still in Lebanon. There were always battles between them and the Alawites.
The Tribunal asked whether the applicant was ever involved in any of these battles when he was in Lebanon. He said he was not involved directly, but he was ‘there in the middle’. He confirmed that he had never been harmed in Lebanon.
The Tribunal asked why the applicant would be harmed now if he had not been harmed in the past. He said he was not hurt in the past because they would leave the area and go somewhere else, but now there was nowhere to go. He was harmed emotionally because when the Syrians are in Lebanon, he is not able to open his mouth. Just belonging to a certain area meant you were threatened.
The Tribunal asked whether the applicant was ever threatened in Lebanon. He said he was. He said he was threatened to be with the Syrians, or he would be jailed. This was when the Syrians were in Lebanon. They always threatened them. The Tribunal asked whether someone had come to the applicant and threatened him. He said they had. It was Syrian Intelligence. This happened at his shop in Tebanneh. He said this was in the 1990s before the Syrians withdrew. The Tribunal asked the applicant how this threat made him feel. He said he was scared.
The Tribunal asked the applicant whether this event made him think about claiming protection in Australia. He said that was one bit, and that happened later as well. The Tribunal asked what happened later. The applicant said that there were supporters in Lebanon and militias. Even the Lebanese Government were ruled by them. The Tribunal asked whether the applicant was personally threatened. He said yes. This was in either 2009 or 2010. The Tribunal then asked him who threatened him, and he said it was not a direct threat.
The Tribunal asked the applicant when the last time he was directly threatened in Lebanon. The applicant said it was a long time ago and he could not remember. The Tribunal asked the applicant whether the last time he was directly threatened was when Syrian Intelligence came to his shop? He said that was the last time he was directly threatened by a Syrian. The applicant was asked to the tell the Tribunal about the last time he received a direct threat. He said he had not received a direct threat. Nothing was done to him personally, but ‘threats are there all the time’.
He was asked about where his parents currently live in Lebanon. He said they live in a town named [Town 1]. They have lived there since 2007 when the problems started in Tebanneh. They maintain a house in Tebanneh which his brother, who is a solider, sometimes uses to rest. The applicant said that the family house in Tebanneh has been owned by his family since he was born. He always lived in that family home, apart from when he would travel to stay in [Town 1] during the weekends. He did not live at [Town 1] during the weekdays because it was too far from his work.
The Tribunal asked whether the applicant would return to Lebanon and live with his parents in [Town 1]. He said he would not because his wife would be with him. He would not be able to live there because he has a large family and the house is small.
The Tribunal noted to the applicant that he had told the delegate interview that his wife could not live in Lebanon and she had spent most of her life in Australia, and that he had asked the delegate what would happen if he returned to Lebanon and was separated from his wife. The Tribunal said to the applicant that this suggested that the applicant had lodged a protection visa application only as a means to remain in Australia to remain with his wife, not because he had a genuine fear of harm in Lebanon. He responded that he wanted to be with his wife but the area where he used to live in Lebanon was dangerous. He noted that there was a sniper 500 metres from where he lived in Lebanon and it would be hard for his wife to live there.
The Tribunal told the applicant that when it looked at his migration history, it suggested to the Tribunal that the applicant lodged a protection visa as a last resort because he wanted to remain in Australia with his wife, not because he had a genuine fear of harm in Lebanon. He responded that when he came to Australia he was on a spouse visa so there was no need to apply for protection at that time, but when he felt that he was required to return to Lebanon, he applied for protection in Australia. The Tribunal again noted that his partner visa was refused in April 2015 and asked why he did not lodge a protection visa at that time. He said that he was afraid to have any problems in Australia as the Australian Government might not like that, but he was told he was eligible to apply for a protection visa.
The Tribunal noted to the applicant that he provided inconsistent evidence concerning his residential arrangements in Lebanon. This suggested to the Tribunal that the applicant was flexible in his evidence and may tell the Tribunal or not tell the Tribunal information if he did not believe it assisted him in his protection claims. The Tribunal noted to the applicant that he declared in his protection visa application form that he was living in El-Zahriyah. The Tribunal notes that the applicant wrote that he lived there for 11 years prior to leaving Lebanon. The Tribunal asked the applicant why he said that the only place he lived (apart from the weekends with the family in [Town 1]) was the family home in Tebanneh. The applicant said that when he was married, he lived in El-Zahriyah, but left that address when he came to Australia. The Tribunal asked why the applicant told the Tribunal that he only lived at the family home in Tebanneh. The applicant responded that he was answering the Tribunal’s question.
The Tribunal indicated to the applicant that it was also concerned by the fact that the applicant had not previously disclosed the threats he had received in the 1990s from Syrian Intelligence. To the Tribunal’s way of thinking, as these threats formed a basis for the applicant realising he needed to claim protection in Australia, it would be reasonable to expect that the threats would be detailed in his protection visa application form or at the delegate interview. The applicant raised no such incident. The Tribunal told the applicant that the fact that he had not previously disclosed this threat may suggest that it did not happen or that he was inventing this to assist with his protection claims. The Tribunal asked the applicant to detail why he failed to mention this previously. The applicant said that no one had asked him about this previously. He answered the Tribunal’s question exactly.
The Tribunal told the applicant that it had read the information in support of the applicant’s protection claims and had listened to the delegate interview. The Tribunal asked the applicant whether there was anything else he needed to raise. The applicant said that he was afraid of the problems that go on in Lebanon and was afraid for his wife’s safety in Lebanon. The Tribunal noted that his wife was an Australia citizen and queried his claim about his wife’s safety in Lebanon. He responded that his wife would go with him to Lebanon. The Tribunal asked how his wife travelling to Lebanon with him (if she did) would raise protection claims for the applicant. He said that between 2007 and 2014 there was fighting in his area. He and his wife will be harmed, but he did not understand the Tribunal’s question.

Given the applicant’s evidence about the concern he had for his wife being in Lebanon, the Tribunal put to the applicant that he had lodged the protection visa application because he wanted to stay with his wife in Australia. In other words, he was concerned about being separated from his wife, who would probably not go to Lebanon given what the applicant wrote in his earlier statement, and he lodged a protection visa because he wanted to remain in Australia with his wife. The applicant responded that he lodged his protection visa application because of his wife and the risk of harm.
The Tribunal asked the applicant whether there was anything else he had not previously raised that he now wished to. The applicant said that he may remember something else at a later stage. The Tribunal told the applicant that it would consider anything that the applicant raised with the Tribunal prior to it deciding the review application.
19 March 2019 DFAT Country Information Report on Lebanon
The Tribunal has had regard to the following information contained in the above report which appeared to be relevant to the protection visa application.
Violent clashes with religious overtones have been less common in recent years. Where violence has occurred between communal groups (such as between Alawites and Sunnis in Tripoli) (at 2.15). The applicant responded that this has always occurred.
The conflict in Syrian has increased tensions between communities in a number of areas. Historical tension between Sunnis and Alawites in the adjoining Tripoli neighbourhoods of Jabal Mohsen (predominately Alawite) and Tebanneh (predominantly Sunni) escalated in the early stages of the Syrian conflict, particularly around ‘Syria Street’ (the dividing line between the two communities, leading to regular rounds of communal violence that killed over 2000 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 (at 2.46). Given this, and the fact that the applicant did not claim to have personally received a threat since the 1990s, the Tribunal put to the applicant that this may suggest that the applicant did not face a real chance of serious harm in Lebanon. In response, the applicant said that the threat was against the whole area where he lived in Lebanon.
DFAT assesses that limited economic opportunity, exacerbated by the influx of displaced Syrians is a push factor for external migration (at 2.13). Given this, the Tribunal raised with the applicant some of the comments he had made about Syrian refugees in Lebanon, where he said that Syrian refugees came to Lebanon and they did ‘not leave anything’, that there were no houses in Lebanon and that the displaced Syrians were even living in shops. Noting the DFAT assessment about the effect of displaced Syrians, the Tribunal raised with the applicant that it may suggest that the applicant applied for protection in Australia not because he feared harm or being persecuted, but because he would have a better standard of living in Australia. The applicant disputed that this was the reason he lodged the protection visa application. He said that in Lebanon anything could happen any minute.
FINDINGS AND REASONS
The issue in this case is whether the applicant is owed protection obligations because he is a ‘refugee’, or a person who meets ‘complementary protection’, or a member of the same family unit of a person who is a ‘refugee’ or meets ‘complementary protection’ and holds a protection visa.
Country of reference
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal accepts that the applicant is a citizen of Lebanon based on the Lebanese passport he provided with his protection visa application. There is no information to suggest that he is a citizen of any other country or that he has a right to enter and reside in a third country. Accordingly, the country of reference for the protection visa is Lebanon.
Credibility concerns
The Tribunal struggles to accept that the applicant is a witness of truth about his claimed fear of harm in Lebanon for the following reasons.
First, there is a significant delay in the applicant lodging a protection visa. The applicant told the Tribunal that he was aware when he was in Lebanon that he could apply in Australia for a protection visa. As he has been in Australia [since] July 2011 with this knowledge, it is unreasonable to believe that the applicant would not have lodged a protection visa after his arrival given that the ‘tension between the two groups has been augmented by the Syrian Civil War which commenced in 2011’ as he claimed in his written statement.
The Tribunal is not persuaded by the applicant’s explanation for the delay in lodging his protection visa application. It is unreasonable to believe that the applicant knew that he could lodge a protection visa but did not do so because he was on a spouse visa when he arrived in Australia. The spouse visa he held (UF309) was temporary in nature and granted for a definite period. There was no guarantee that the applicant would be granted the permanent spouse visa (BC100). Indeed, that was refused in April 2015.
Given this, the Tribunal questions why the applicant would not lodge his protection visa application at that time. The applicant’s responses to the Tribunal’s concern about the delay in lodging the protection visa consisted of nothing more than saying he had a spouse visa, or that he thought that the Australian Government would not like him lodging a protection visa, and he did not want any trouble. The Tribunal is unable to understand how the applicant could think that the Australian Government would not like the applicant to apply for protection, when that government provides such visas.
Given that the applicant was in Australia for five and a half years before he lodged his protection visa application, and was unable to cite any particular event that occurred in Lebanon since his arrival in Australia which acted as a catalyst to mean that he now had protection concerns, and noting that the applicant never departed Australia since his arrival in 2011, the Tribunal is not satisfied that there is an adequate explanation for the delay IN seeking protection. Rather, the Tribunal concludes that once the applicant arrived in Australia in 2011, he was determined to never return to Lebanon not for protection reasons, but because Australia offered him the opportunity to remain with his wife and have a better quality of life.
Second, the applicant has demonstrated a flexible approach to the truth. While the Tribunal acknowledges that the passage of time may affect a person’s memory, the Tribunal really struggles with the fact that the applicant, who was asked in the protection visa application form whether he had experienced harm in Lebanon did not raise the threat he allegedly received in the 1990s. The applicant told the Tribunal that this threat scared him and was part of the reason he claimed protection in Australia. Given the importance of this threat as a basis for claiming protection, it is incredulous to believe that the applicant would detail this threat for the first time at the Tribunal hearing. The Tribunal does not accept the applicant’s explanation that he had ‘never been asked that question before’ as he clearly has been asked that question, first in the protection visa application form, and again at the delegate interview which provided him another opportunity to detail his claims. It is unreasonable for the applicant to cite the threat he received as a basis for his belief that he will suffer serious harm if he returns to Lebanon, yet never raise this incident prior to 30 November 2020. Had the applicant been threatened as he claimed, the Tribunal is satisfied that he would have detailed that threat in his protection visa application form. The Tribunal is satisfied that this threat was fabricated by the applicant to bolster his protection claims, and that this demonstrates that the applicant is prepared to manufacture his evidence to achieve a protection visa.
The applicant’s flexibility to the truth also extends to basic information. The protection visa application form details his residential history in Lebanon, yet to the Tribunal he said that the only address he lived in was the family home in Tebanneh. Remembering that the applicant’s case was that he could not return to that home given its location off Syria Street, the Tribunal is satisfied that the applicant omitted the fact that he had previously claimed to have lived from the year 2000 to 2011 in another location, as he probably thought that the Tribunal may reason that he could go to that location instead of Tebanneh. When the Tribunal put the inconsistency to the applicant, he did not address why he told the Tribunal that he had lived at the family home in Tebanneh from birth, but simply said once he was married he started living in Zahriyah. This was, in the Tribunal’s view, a fundamental shift in his oral evidence and the Tribunal struggles to accept the twin propositions that the applicant lived at the family home in Tebanneh from birth, while also living at the address in Zahriyah from 2011 after his marriage. Both propositions cannot be true.
Third, the applicant’s evidence about who he claimed will harm him and what he feared will happen to him was broad in the extreme. When the Tribunal comes to really considering this, the applicant’s claims come down to the fact that he could possibly be harmed in Lebanon by someone if he lived in Tebanneh. That is possible, but it is possible that the applicant could be harmed by someone anywhere in Lebanon, or indeed Australia. The Tribunal is satisfied that the applicant’s claims are broad and lacking in the detail that it would be reasonable to expect a person who has a well-founded fear of persecution to provide because he has no such fear, and has merely taken note of the historical sectarian issues in Lebanon and used them as a basis to lodge his protection visa application, not because he genuinely fears he will be harmed on account of his race, religion, nationality, membership of a particular social group, or political opinion.
Fourth the applicant’s migration history demonstrates that the applicant has lodged a protection visa to achieve permanent migration to Australia as an alternative for his failed partner visa. The applicant travelled to Australia on a temporary partner visa. His permanent partner visa was refused [in] April 2015. He lodged a review application concerning this refusal decision but was outside the statutory timeframe to do so. He then sought judicial review. He lodged a medical treatment visa, which was refused on 1 April 2016. He lodged a review application concerning the refusal decision but was outside the statutory timeframe to do so. He lodged a Ministerial Intervention request, but this was not referred to the Minister. Finally, he lodged a protection visa application.
The Tribunal accepts that the applicant is married to an Australian citizen who attended the Tribunal hearing with the applicant. It is apparent that they remain in a marriage. In the Tribunal’s judgment, the applicant is seeking to use the protection visa to circumvent the outcome of his BC100 refusal. That is, seeking to remain in Australia with his wife despite the basis for him doing so, namely pursuant to the BC100, no longer being an option.
The applicant’s wife may or may not relocate and live in Lebanon with the applicant. The Tribunal is unable to reach a conclusion about that, given that the applicant wrote that she would not relocate with him, but then told the Tribunal that she would, which was another reason he feared harm, although the connection to his wife being in Lebanon giving rise to the applicant having a well founded fear of harm on the basis of any of the s5J(1)(a) is not readily apparent. What the Tribunal can be satisfied about is that the applicant does not want to be separated from his wife, recognises that this may happen if he is returned to Lebanon, and lodged a protection visa in the hope that this will not happen. Noting the information that the Tribunal raised with the applicant concerning displaced Syrian people in Lebanon, the Lebanese economy, and his own comments about Syrian refugees in Lebanon, the Tribunal is satisfied that the applicant has concerns that he will not be able to live as comfortably as he does in Australia.
The Tribunal needs to consider the applicant’s likely conduct in Lebanon. The Tribunal is not satisfied that the applicant has ever been harmed or threatened with harm in Lebanon on account of his race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal is not satisfied that the applicant has ever been harmed or threatened with harm for any other reason in Lebanon. If the applicant is to return to Lebanon, he may live with his parents in their home in [Town 1], or he may stay at the family home in Tebanneh. The Tribunal is satisfied that the applicant will not seek to live in Zahriyah becaue he told the delegate interview that he had quite the lease on that house when he moved to Australia. However, if the applicant lives in either [Town 1] or Tebanneh the Tribunal is not satisfied that the applicant is at a risk of harm. There is nothing that has been provided to the Tribunal to suggest that the applicant would be at risk of harm if he lived with his parents, and the information contained in the most recent country information report satisfies the Tribunal that the applicant can be adequately protected if he lived there through the presence of the Lebanese Army Force.
When the Tribunal considers the applicant’s case as a whole, it is satisfied that the applicant does not have a well-founded fear of persecution. He does not genuinely hold those fears. They have been put forward because he does not want to leave his Australian citizen wife, and he does not want to live in a country that is not comparable to Australia. That does not make him a refugee. Nor is there anything persuasive to suggest that the applicant will be arbitrarily deprived of his life, be subjected to the death penalty, tortured or subjected to cruel or inhuman, or degrading treatment or punishment as a result of his removal from Australia.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Lebanon on account of the applicant’s race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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). 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 is removed from Australia to Lebanon.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion by the applicant or on the information available 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.
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.
…

[2020] AATA 5543

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