1731938 (Refugee)

[2022] AATA 4881

1731938 (Refugee) [2022] AATA 4881 (31 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731938

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Shahyar Roushan

DATE:31 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that [Mr A] satisfies s 36(2)(a) of the Migration Act.

The Tribunal affirms the decision not to [Mr B] a Protection visa.

Statement made on 31 October 2022 at 11:57am

CATCHWORDS

REFUGEE – Protection Visa – Lebanon – Sunni Muslims – fear harm from Shi'a Muslims, Alawis and supporters of the Syrian regime– anti-Assad political views – membership of the particular social group – people with mental illness or mental health disorders – there is a real chance that applicant will be seriously misjudged and subjected to physical harassment, mistreatment, violence or threats of violence – State protection is not available to the applicant – lack of general security, sectarian conflict and political instability is faced by the population generally – strong compassionate circumstances – Referral to the Minister – decision under review remitted for the first named applicant – decision under review affirmed for the second named applicant

LEGISLATION

Migration Act 1958, ss 5H, 36, 46, 65, 91, 351, 417, 499

Migration Regulations 1994, 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

Background

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants are brothers and nationals of Lebanon. The first named applicant, [Mr A], is [age] years old, and the second named applicant, [Mr B], is [age] years old. Both applicants were born in Ayat Tripoli, North Lebanon. Their parents and two sisters [are] Australian citizens residing in Australia. They also have a brother [who] resides in [Country 1].  

3. The applicants arrived in Australia separately in March 2002 as dependents on a Temporary Business Long Stay (Class UC) (Subclass 457) visa held at that time by their mother, Ms [C].

4. On 3 September 2004, [Ms C] lodged an application for a Protection visa and included her husband, [Mr D], and the applicants as members of her family unit. On 2 December 2004, a delegate of the Minister refused the application and, subsequently, the then Refugee Review Tribunal (RRT) affirmed the delegate’s decision. Both the Department and the RRT assessed [Ms C]’s claims against the criteria under s 36(2)(a) of the Act and the remaining family members were considered under s 36(2)(b)(i) of the Act as members of [Ms C]’s family unit.

5. On 13 May 2014, a subsequent Protection visa application was lodged by the applicants’ father. In this application, the applicants and [Ms C] were included as members of [Mr D]’s family unit. On 3 November 2014, a delegate of the Minister refused the Protection visa application and [Mr D] applied for a review of the delegate’s decision.

6. Section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. Following the insertion of s 36(2)(aa) and related provisions into the Act, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 held at [38] that the operation of s 48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a Protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld a Tribunal decision considering only claims in relation to the complementary protection criterion in s 36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s 36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s 36(2)(aa).

7. In reviewing the delegate’s decision of 3 November 2014, a differently constituted Tribunal (the first Tribunal) applied the reasoning in SZGIZ and proceeded on the basis that the applicants and their father could be assessed under the refugee criterion in s 36(2)(a), the complementary protection provisions in s 36(2)(aa), and the related family unit criterion in s 36(2)(c) of the Act. However, they could not be assessed under s 36(2)(b) criterion as they had been considered against that criterion in connection with [Ms C]’s 2004 Protection visa application.

8. On 9 May 2017, the first Tribunal remitted the matter to the Department with the direction that [Mr D] satisfies s 36(2)(a) and [Ms C] satisfies s 36(2)(b)(i) of the Act on the basis of her membership of the same family unit. However, the first Tribunal determined that the applicants did not satisfy the refugee and the complementary protection criteria and that they could not be assessed under s 36(2)(b) criterion.

9. [In] June 2017, the applicants applied to the then Federal Circuit Court for judicial review of the first Tribunal’s decision. [In] December 2017 the Federal Circuit Court remitted the matter to the Tribunal by consent to be reconsidered and determined according to law.

   CLAIMS AND EVIDENCE

   Protection visa application

10. In the Protection visa application lodged by the applicants’ father in May 2014, [Mr D] used the pronoun ‘we’ to outline aspects of the protection claims prompting his application. The Tribunal understands this to refer to the collective fears of [Mr D] and members of his family, including the applicants.

11. [Mr D] stated in the application form that they had left Lebanon to flee from the threat of ‘unwarranted governmental harassment and intimidation, war and violence’, which was worsening and resulting in citizens dying in Lebanon. He said they fear harm from Shi'a Muslims, Alawis and supporters of the Syrian regime in Lebanon. The escalation in the conflict Syria is impacting Lebanon and the family fears being subjected to ‘violent clashes, war… cruel and inhuman treatment and the arbitrary deprivation [of their lives]’. It was stated that these risks extend to all locations in Lebanon and the authorities are unable to provide protection.

12. In written submissions to the Department by the family’s then representative, it was stated that the Syrian civil war has aggravated tensions between Sunnis and Shi'a’s, and there have been violent clashes between Sunnis and Alawis in Tripoli, as well as clashes between Sunnis and Shi'as in other parts of Lebanon. ‘All’ Sunnis in the north have become targets, with every Sunni being associated with extremist Sunni militias and Sunni youths being targeted by the Lebanese Armed Forces. Other parts of Lebanon are also unsafe as Shi’as dominate the south and Christians dominate the government. The family would struggle to find accommodation in a safe area due to the influx of Syrian refugees.

13. The representative further submitted that [Mr D] was subjected to physical and psychological harm by the Syrian forces during their occupation of Lebanon in the 1980s. His shop was attacked and bombed twice by the Syrian forces due to his anti-Assad political views. He was imprisoned, interrogated and tortured for expressing disapproval of the Syrian regime and his adherence to Sunni Islam. As an anti-Assad Sunni Muslim, [Mr D] is at high risk of experiencing harm if he returned to Lebanon. It was further submitted that there is a real risk that his two younger sons (the applicants) will also be harmed as a result of their father’s past.

14. Only [Mr D] provided oral evidence to the delegate at an interview held on 23 October 2014.

    Review application

    The first Tribunal

15. In a letter to the first Tribunal, dated 24 September 2016, the applicants’ sister, Ms [E] disagreed with the delegate’s reasons in refusing the application. She referred to a number of news reports and articles to highlight the security situation, the rise of Sunni Islamic radicalism, sectarian conflict and the presence of ISIS in Tripoli at that time. [Ms E] stated that ‘the deteriorating security situation in Lebanon, the strong influence of radical Islamic groups on Tripoli and the north of Lebanon, the lack of Sunni Muslims trust in the Lebanese forces to protect them as well as the influence of militant groups on Sunni male youth clearly shows the danger that [Mr D] and his family may encounter if they are forced to return to Lebanon.’

16. In addition to their father and sister, both [Mr A] and [Mr B] provided oral evidence to the first Tribunal at a hearing held on 9 December 2016. Where relevant, this evidence is referred to in the Tribunal’s analysis below.

17. The first Tribunal did not accept that any of the applicants included in the application for review faced a real chance of serious harm in Lebanon by anyone for the reason of being opposed to the Syrian regime, as a consequence of sectarian violence in Tripoli or as a result of any presence ISIS might have in Tripoli. The first Tribunal, however, found that [Mr D] has serious mental health issues and that there is a real chance that his capacity to subsist in Lebanon will be threatened for the reason of his membership of the particular social group of people with mental illness or mental health disorders. The first Tribunal found that he has a well-founded fear of persecution. As noted earlier, the first Tribunal considered [Ms C]’s claims under the complementary protection criterion and family unit criterion and found that whilst she did not face a real risk of significant harm in Lebanon, she met the family unit criteria in s 36(2)(b) of the Act. The first Tribunal also found that [Mr A] and [Mr B] did not face a real chance of serious harm or a real risk of significant harm in Lebanon. As their application based upon family membership was considered in their previous Protection visa application, in relation to s 36(2)(a), the first Tribunal found that it was unable to consider them again under the s 36(2)(b) criteria. Further, as none of the other applicant’s had met the criteria under s 36(2)(aa) of the Act, [Mr A] and [Mr B] were unable to meet the criteria in s 36(2)(c).

    The present Tribunal

18. Following the decision of the then Federal Circuit Court to remit the matter to the Tribunal, [Ms E] provided a detailed submission in support of her brothers’ application. The submission appears to be an updated version of a submission initially prepared in support of the applicants’ judicial review application. The first part of the submission sets out the grounds for judicial review and submits that the first Tribunal had breached its procedural fairness obligations. The submission also discusses Australia’s obligations in relation to ‘the right to respect for the family’ under international law, highlighting the detrimental impact on the applicants’ parents if they were to be separated from their sons. It was submitted that the applicants were brought to Australia as children by their parents, having experienced the trauma of family separation as very young children after their mother came to Australia alone.

19. [Ms E] outlined the circumstances of her two brothers in detail, stating that [Mr A] was diagnosed with [Medical condition 1] in 2013. He was initially prescribed [medication] to reduce some of the symptoms, but this was not sufficient to address the condition. In 2015, he had a psychotic episode and was admitted to [Hospital]. He was discharged after six weeks and put on [medication]. His condition has improved under the care of his family, and he has been seeing his psychiatrist, [Dr F], for the past six years. [Ms E] stated that [Mr A]’s serious mental health issues have had a significant social and economic impact on his wellbeing. He requires daily medication and ongoing psychiatric support in order to continue to recover from the residual effects of his psychotic episode. [Ms E] submitted that [Mr A] has no connections to Lebanon as their family had cut ties with their few family members when they came to Australia in 2002. He would not have access to the same support he has in Australia from his immediate family and the multiple specialised mental health services and psychiatric care in Australia.

20. In addition, it was submitted that [Mr A] would suffer serious harm as a member of the particular social group of ‘people with mental health disorders in Lebanon’. It was submitted that medical services in Lebanon are struggling to cope as a result of the country’s economic crisis and the few psychiatric facilities in Lebanon are shutting down. [Mr A] would be unable to conceal his serious mental illness, which would expose him to societal discrimination, including healthcare practitioners who do not understand his condition. 

21. In support of her submissions, [Ms E] referred to and cited numerous academic articles and reports on a range of topics, including the symptoms of [Medical condition 1] and consequences of relapse, stigma against mental illness in Lebanon, the ‘medicine crisis’ in Lebanon, lack of access to psychiatric care in Lebanon, and the ‘general health crisis’ in Lebanon.

22. With regard to [Mr B], [Ms E] submitted that he came to Australia in 2002 at the age of [age] and has resided in Australia for 20 years. He considers himself an Australian. He only speaks English and is unable to properly articulate himself in Arabic. Her brother’s ‘long settled family life in Australia’ should be taken into account as his ties to his family would be ‘irreparably severed’ if he were to be removed from Australia. [Ms E] stated that her brother, [Mr B], is the ‘backbone’ of the family and supports them financially. He started a family business in 2016 and takes care of his parents and brother, [Mr A]. It was submitted that it would be unreasonable to expect [Mr B] to leave Australia given that his parents and brother are dependent on him for their social, physical, mental, and economic wellbeing.

23. [Ms E] further submitted that [Mr B] has no connections with anyone in Lebanon as he left the country at a young age and has experienced early childhood trauma in Lebanon. He is very close to his immediate family in Australia, who are Australian citizens.

24. In addition, [Ms E] submitted that having grown up in Australia, [Mr B] will be discriminated against in Lebanon as a ‘foreigner’. He will not be accepted as part of the Lebanese society and will be expected to offer financial assistance to others due to the perception that he has had certain financial privileges having lived in a Western country. She stated [Mr B] will have difficulties with the culture and customs in Lebanon as he cannot read or write Arabic and can ‘hardly understand’ the language. [Ms E] also stated that the severe economic collapse in Lebanon puts her brother at an increased risk of poverty and high risk of being robbed, intimidated, kidnapped or killed for money.

25. [Ms E] submitted that ‘Lebanon is currently in an economic war with worsening political instability and no hope for the future’. The Lebanese people are fleeing the country in large numbers as a result of the unbearable economic and social conditions. There is no electricity or fuel, and food is very expensive, the crime rate has risen, there is no functioning system of justice and there is severe shortage of medicine. The submission referred to news articles and reports published in 2020 and 2021, relating to violent crime rates, the economic situation and the food, water, and health care crisis in Lebanon. In addition, the submission referred to reports relating to human rights abuses, political instability, and worsening sectarian tensions in Lebanon.

26. The following documents were also submitted to the Tribunal in support of the review:

    ·Copy of a statement by [Mr B], dated 11 November 2021, providing extensive details in relation to his education, work history, and volunteer work in Australia. He stated that he lives with his parents and his brother, [Mr A], in Australia, and his family relies on him for financial and emotional support. He has adopted and integrated into the Australian society and tries to be a valuable member of the society by contributing to his local community. [Mr B] stated that if he and his brother were to be removed from Australia, this would have detrimental psychological, emotional, and financial impacts on each member of the family unit. [Mr B] submitted photographs of him engaging in volunteer work in [Australia].

    ·Copy of a statement by the applicants’ sister, Ms [G], dated 9 November 2021. Ms [G] stated that she came to Australia with her father and brothers in 2002. They joined their mother who came to Australia five years prior. She recounted their childhood experiences, including being put into foster care in Lebanon and growing up in an abusive household where physical, sexual, and psychological abuse was common. She stated that despite his traumatic childhood, [Mr B] is the only person her parents and their brother, [Mr A], can rely on. [Mr A] has [Medical condition 1] and is reliant on his brother to buy his medication. She stated that their parents are getting old and need [Mr B] to stay with them and help them.

    ·Copies of both applicants’ educational records.

    ·Copy of a letter dated 16 December 2017 by Dr [F], Consultant Psychiatrist, in relation to [Mr A]. The letter outlines [Mr A]’s medical history, stating that he was diagnosed with [Medical condition 1] in March 2015 and that he suffers from ‘permanent, chronic and severe mental illness and incapacity’ and ‘it is unlikely that his condition will show significant improvement in the future’. In addition, it was noted that [Mr A] will always require extra support and care which is being provided by his immediate family.

    ·Copy of a letter by [the] General Practitioner, dated 5 February 2014, stating that [Mr A] that he has had ‘uncontrolled [Medical condition 1]’ since 11 January 2013.

    ·Copy of a hospital discharge note, indicating that [Mr A] was admitted to the Mental Health ward at [a] Hospital on 28 March 2015 and discharged on 15 May 2015.

    ·Evidence of [Mr B]’s work experience in Australia, including copies of Tax return documents from the 2020-21 financial year.

    ·Copies of childhood photographs of the applicants taken in Australia.

    The first hearing

27. The applicants appeared before the Tribunal on 17 November 2021 by video to give evidence and present arguments. The Tribunal also received oral evidence from [Ms E]. Where relevant, the oral evidence provided to the Tribunal at this hearing is referred to further below.

28. In the response to the hearing invitation, the applicants requested that the Tribunal also takes oral evidence from [Ms G]. The Tribunal assured the applicants at the initial hearing that it planned to schedule a further in person hearing and that it will take oral evidence from [Ms G] at that hearing.

29. On 29 January 2022, [Ms E] submitted two medical reports in relation to [Mr A] from Dr [F], Consultant Psychiatrist, and Dr [H], Psychologist. Both letters were dated 22 January 2022.

30. In his letter, [Dr F], stated that he was diagnosed with chronic [Medical condition 1] in 2013 and was admitted to [a] Hospital in 2015. He was subsequently followed up briefly by [a] Mental Health Team before he was referred to [Dr F]. It was stated in the letter that [Mr A]’s illness is characterised by [details deleted]. [Dr F] noted that [Mr A] has not always been compliant with medication intake due to limited insight, but he now appears to have accepted the need for medication and has agreed to his family supervising his medication intake. His compliance, as well as his family’s support have resulted in improvements in his quality of life. [Dr F] further noted that [Mr A]’s prognosis is favourable and dependent on multiple factors including the ongoing care and support provided by the family, medication adherence and stress management skills in order to prevent future exacerbations of his psychotic [symptoms]’.

1. Dr [H], also outlined [Mr A]’s mental health history in his letter and stated that Mr [A] has been experiencing symptoms of [Medical condition 1] over the past eight years. These symptoms include [deleted]. In addition, there has been significant impairment in his level of occupational, social and interpersonal functioning. Dr [H] stated that [Mr A] experiences [symptoms] when he does not comply with his medication. At their peak, [Mr A]’s [symptoms] result in him becoming very distressed, [details deleted]. Dr [H] stated that when [Mr A] experienced psychotic episodes and hallucinations before his hospital admission in 2015, he ‘lost his ability to differentiate between reality and the hallucinations and started screaming, swearing outside their house and disturbing the neighbourhood’. He further noted reports that some of [Mr A]’s delusions are of ‘a religious nature’, namely a fixed belief that there are a group of people who want him to rewrite the Holy Book and they will not leave him alone unless he does so. [Mr A] finds these delusions distressing and upsetting, prompting him to ‘swear in very inappropriate ways at those people’. He also ‘swears at God in the foulest most inappropriate way when he experiences these false beliefs’, and according to his family it is not possible to reason with him when he is experiencing these delusions. Dr [H] stated that [Mr A]’s delusions have in the past caused him to become physiologically distressed and passing out when his delusions and paranoia are too severe.

2. Dr [H] also reported that [Mr A] was recently assessed using the Depression, Anxiety and Stress Scale (DASS) 21. He was found to have ‘extremely severe’ depression, ‘severe’ anxiety and ‘extremely severe’ stress. There is considerable concern that [Mr A]’s condition will destabilise in an unfamiliar environment without family support, leading to an exacerbation of his [Medical condition 1], as well as depression and anxiety. Dr [H] added that [Mr A]’s history of medication non-compliance means he usually needs to be prompted to take his medication. Noncompliance may result in him becoming ‘too loud, distressed, unable to control his voices… he will have strangers approach him when he is having a psychotic episode and they will possibly aggravate him more, physically harass him, verbally abuse him.’

   The second hearing

3. In the circumstances of this case, the Tribunal considered it appropriate to conduct the further hearing in person. This was unfortunately delayed due to the restrictions imposed at that time as a result of the COVID-19 pandemic.

4. The applicants eventually appeared again before the Tribunal on 13 April 2022. The Tribunal also received oral evidence from [Ms C] and [Ms E]. The Tribunal was informed at the outset that [Ms G] was unable to attend the hearing and give oral evidence. The Tribunal reminded the applicants that if [Ms G] wished to provide any additional information or evidence to the Tribunal, she was welcome to do so in writing after the hearing. Where relevant, the oral evidence provided to the Tribunal at this hearing is referred to further below.

5. On 29 April 2022, the Tribunal received further submissions from [Ms E], in which she provided additional information in relation to the claims made by [Mr B].

6. [Ms E] contended that [Mr B] would be an ‘easy target’ for kidnapping as he would be viewed as a ‘foreigner with money in Lebanon’ in light of the country’s ‘severe economic crisis.’ He has no connections in Lebanon as members of his immediate family live in Australia, he does not speak the language and he is not familiar with the country. [Ms E] referred to two recent news articles in relation to kidnapping incidents in Lebanon. According to one article, the Lebanese army had freed three individuals, including a Yemeni, a Syrian and a Lebanese national who had been ‘lured’ by criminal gangs ‘masquerading on social media as “migration assistance agencies that promise to facilitate travel to a European country”’. She also referred to advice issued by the Australian Government on the Smartraveller website and information published by equivalent Government sources in the United States, United Kingdom and New Zealand in relation to Lebanon and warnings regarding incidents and threats of kidnapping against foreigners, including westerners who could be targeted by kidnappers and other militant groups. She submitted that there is a comparatively ‘very high risk’ that her brother will be kidnapped as his understanding of the language is ‘extremely limited’ and he would be perceived to be wealthy as his family reside in Australia. If he were to be kidnapped, the family would be unable to pay a ransom. In addition, [Ms E] cited two news articles, published in March 2013 and October 2021 respectively, reporting on Lebanese expatriates leaving the country permanently due to deteriorating security and economic conditions.  

7. Citing other sources, [Ms E] further contended that [Mr B] will experience difficulties if he were to relocate to Beirut as Beirut is ‘a city of neighbourhoods’ with their own homogeneous politico-religious and socio-economic character. She submitted that ‘it seems’ that Beirut’s Sunni population has decreased ‘with previous Sunni neighbourhoods becoming predominantly occupied by Shia with Sunni fearing to expose their identity to avoid repercussions.’ [Ms E] referred to a 2007 news article in relation to tensions between Sunnis and Shi'a’s in Beirut. She also referred to news articles reporting on sectarian clashes between Shi'as and Christians in October 2021. [Ms E] reiterated that her brother would stand out as a foreigner and would not be able to blend in society as he has no connections and acquaintances in Beirut. He would face problems finding accommodation and fitting in as he would not be accepted in ‘the neighbourhood’. He would attract suspicion and people would question his motives for wanting to move to their neighbourhood.

8. [Ms E] further referred to her oral evidence at the second hearing regarding the abuse and the trauma suffered by [Mr B] as a child in Lebanon. [Ms E] submitted that her brother has never disclosed or expressed his feelings about his experiences in Lebanon as he has internalised his childhood experiences. [Ms E] expressed the view that her brother continues to be impacted by the trauma he was subjected to as a child in Lebanon. She also expressed the view that [Mr B] suffered from separation anxiety as a child due to the separation from his mother at an early age and that if he were to be separated from his mother again, the separation anxiety may resurface.

9. Finally, [Ms E] submitted that [Mr B] had a medical episode on 25 April 2022. He had ‘collapsed’, hitting the right side of his face. He was admitted to [a] Hospital and diagnosed with [Medical condition 2]. [Ms E] advised that the reason why [Mr B] fainted suddenly without any prior warning was because of [deleted]. [Ms E] stated that the family has a history of [medical] issues and that the incident was caused by stress as a result of the reminder of past trauma during the Tribunal hearing and his fear of returning to Lebanon. [Ms E] submitted that the family is very concerned that if this incident happened again in Lebanon, [Mr B] would have no support and would be taken advantage of.

10. [Ms E] provided the Tribunal with a copy of a hospital discharge form, indicating that [Mr B] had been admitted to [a] Hospital on 25 April 2022 and discharged on the same date. [Ms E] concluded her submission by stating:

    We have grave concerns for [Mr B] if he is to return to Lebanon. His circumstances and characteristics put him at a high risk of being kidnapped in Lebanon for ransom. Many expatriates and foreigners have left Lebanon recently worried about their safety as the country grapples with severe economic crisis, rising sectarian tensions, political instability and increase in crime rates. Relocation to Beirut is also an issue for [Mr B] as a single young man whose family are Sunni Muslims and come from the North of Lebanon, he will struggle to find long term accommodation in city that continues to be divided by sects. Furthermore, He will not be able to blend in the neighborhoods of Beirut even if he tried because does not speak the language.

    [Mr B] was also assaulted as a child in Lebanon and has childhood trauma that seems to have had a long term impact on him psychologically. Moreover, we as his family are very concerned that reminding [Mr B] of those traumatic experience will have a detrimental effect on his mental and physical health. Those concerns are cemented with his recent loss of consciousness at work earlier this week and being diagnosed with a [medical] condition. (sic)

11. In a letter, dated 28 April 2022, [Ms G], provided further evidence in support of her brothers’ application. She stated in her letter that she and her brother [Mr B] were left behind in Lebanon when their mother travelled to Australian in 1997. She was [age] years old, and her brother was aged [age]. As their father went ‘missing’ at this point and neither their maternal or paternal grandparents were willing to look after them due to existing family conflict, they were left in the care of their mother’s friend and subsequently the friend’s adult daughter. In the approximately two years that they lived with this family, they were neglected and [Mr B] was subjected to physical and sexual abuse. After their father resurfaced, her brother stayed with their father at a location unknown to her whilst she stayed with her maternal grandfather and his wife. Following the death of her maternal grandfather, she was taken to her paternal grandfather’s house, where her father and brother were also living. Her father was mentally unwell and unable to look after them. In that environment, her brother continued to be physically abused by their paternal grandmother and a cousin. He was also psychologically and physically abused by one of their paternal uncles. She believes that her brother has been deeply affected by these early childhood experiences.

12. [Ms G] expressed concern that her brother may self-harm if he was removed to Lebanon. He would be unfamiliar with the country ‘where he had the most painful childhood’. In addition, members of the extended family will ‘chase’ and ‘kill’ him because they are aware of her out of wedlock relationship with an Australian Christian Catholic man. They think she has committed a sin and should be killed, and that her father and brothers are responsible for allowing this to happen.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

13. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, the applicant 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.

14. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

15. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

16. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant 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’).

17. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, reasons and findings

    [Mr A]

18. There is no dispute that [Mr A] has a relatively longstanding diagnosis of [Medical condition 1]. The Tribunal found the medical evidence submitted in this regard persuasive and forceful.

19. The Tribunal accepts [Dr F]’s written evidence that [Mr A] was diagnosed with [Medical condition 1] in 2013, leading to a hospital admission approximately two years later. The Tribunal accepts that [Mr A]’s illness is characterised by [deleted]. The Tribunal also accepts [Dr F]’s evidence that [Mr A] has not always been compliant with his medication intake.

20. The Tribunal accepts Dr [H]’s written evidence that, when non-compliant with his medication, [Mr A] experiences [symptons], which result in loss of ‘comprehension’ and disassociation with reality. The Tribunal further accepts that some of Mr [A]’s delusions are of ‘a religious nature’, namely a fixed belief that there are people who want him to rewrite the Holy Book. The Tribunal accepts that he responds to these hallucinations by shouting back at the voices in his head and swearing at God ‘in the foulest most inappropriate way’ during these episodes.

21. The Tribunal accepts [Dr F]’s evidence that [Mr A]’s symptoms are currently under control and that he has not experienced psychotic symptoms recently due to his compliance with medication, which has been achieved through care, support and active intervention by members of his family in Australia. Medication non-compliance and being deprived from the close support of his family would result in ‘exacerbations of his psychotic symptoms’.

22. On the basis of the available evidence, the Tribunal accepts that [Mr A] has been residing in Australia since the age of [age], his relationship with his extended family in Lebanon has been severed and that he has no family support or network to rely upon in Lebanon. The Tribunal finds that if [Mr A] were to be removed to Lebanon he will be deprived of the close support of his immediate family upon which he is dependent upon due to his mental illness for his day-to-day functioning, particularly his medication intake. The Tribunal finds that in these circumstances there is a real chance that he will not continue to remain compliant with his medication intake and would not have the capacity to access any mental health support or treatment that may be available to him in Lebanon. It follows that there is a real chance that he will experience psychotic symptoms in the form of auditory hallucinations and paranoid delusions, including the religious delusions referred to in the medical evidence provided to the Tribunal.

23. The Tribunal accepts that [Mr A] and his family resided in the Northern Lebanese city of Tripoli before they travelled to Australia. As suggested by the sources consulted by the Tribunal, Tripoli’s Sunni-majority population has a historical tendency toward radicalism. At the height of the Syrian conflict a few years ago, Tripoli was described as lying ‘in ISIS’s shadow’.[1] In a 2014 report Raphael Lefevre observed:

    [T]he rise of Sunni extremism in the Syrian conflict has unleashed disturbing religious and security dynamics in Lebanon, with al-Qaeda affiliates that are fighting in Syria, such as the Nusra Front and the Islamic State of Iraq and the Levant, launching Lebanese chapters… Nowhere is this spill over starker than in the northern port of Tripoli, Lebanon’s second-largest city, where local sectarian and political tensions have been severely exacerbated.[2]

    [1] Anderson, S, ‘In Northern Lebanon, Life Under ISIS’s Shadow’, New York Magazine Intelligencer, 14 September 2014, <

    [2] Lefevre, R, ‘The Roots of Crisis in Northern Lebanon’, Carnegie Middle East Centre, April 2014, <

24. The Tribunal has found that, as a consequence of his mental illness, particularly when non-compliant with his medication, [Mr A]’s behaviour can be unregulated, unpredictable and unfiltered. The Tribunal finds that any deterioration in his mental state may result in the manifestation of auditory hallucinations and paranoid delusions that may be religious in nature. The Tribunal finds that, if he were to return to Lebanon there is a real chance that he will express views or engage in behaviour that will be perceived to be highly offensive by the general public. The Tribunal finds that there is a real chance that he will be seriously misjudged and subjected to physical harassment, mistreatment, violence or threats of violence by members of the community if he were to return to Lebanon.

25. The Tribunal further finds that there is a real chance of the applicant being dangerously misunderstood by law enforcement agencies. The Tribunal finds that there is a real chance that [Mr A]’s delusions will be regarded as contentious, provocative or highly offensive by the security forces, who are likely to be unaware of or indifferent to his mental illness.

26. The Tribunal has also considered other information before it, suggesting that ‘persons with disabilities in Lebanon face adverse political, social, cultural, and economic conditions. This has extremely detrimental effects on their rights, capacities, experiences, and quality of life’.[3] According to Emilie Combaz, ‘lack of knowledge, prejudice, and stigma against persons with disabilities are common – especially against those with intellectual or mental disabilities’. He reports that 80% of persons with disabilities in Lebanon ‘are not or have never been employed’ and they are likely to encounter unique barriers in finding private accommodation, because landlords may refuse to rent to them or evict them abruptly due to stigma and discrimination.[4]

    [3] Emilie Combaz, Situation of persons with disabilities in Lebanon, Knowledge, Evidence and Learning for Development (K4D), 15 July 2018, Disability_in_Lebanon.pdf (publishing.service.gov.uk).

    [4] Ibid.

27. On the basis of the evidence before it, the Tribunal finds that there is a real chance that, due to his disability, [Mr A] will have very limited prospects of finding employment and accommodation, as well as accessing the necessary mental health services, which are predominantly provided by the private sector.[5] Whilst his family may be able to provide him with some financial assistance, the Tribunal is not persuaded that they will be able to provide him with accommodation in Lebanon, which will render him more vulnerable in light of the Tribunal’s findings regarding the harm he is likely to face due to the nature of his mental illness.

    [5] DFAT, DFAT Country Information Report – Lebanon, 19 March 2019.

28. The Tribunal finds that there is a real chance that [Mr A] will be subjected to significant harassment, including physical harassment, violence and/or threats of violence by the members of the community or the security forces in Lebanon. The Tribunal also finds that there is a real chance his capacity to subsist in Lebanon will be threatened. The Tribunal is satisfied that this harm amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal is satisfied that the essential and significant reasons for the applicant’s fear of persecution are his imputed political opinion and his membership of the particular social group of persons with mental illness in Lebanon. The Tribunal finds that State protection is not available to the applicant in Lebanon. The Tribunal is satisfied that the real chance of persecution relates to all areas of Lebanon.

1. For the reasons given above the Tribunal is satisfied that [Mr A] is a person in respect of whom Australia has protection obligations. Therefore, he satisfies the criterion set out in s 36(2)(a). The Tribunal further finds that [Mr A] has no right to enter or reside, either temporarily or permanently, in any safe third country for the purposes of s 36(3) in the Act.

   [Mr B]

2. For the following reasons, the Tribunal has concluded that the decision under review in relation to [Mr B] should be affirmed.

   Childhood experiences

3. The Tribunal accepts that [Mr B] was physically and sexually abused by friends of his mother when he and his sister, [Ms G], were placed in their care following their mother’s departure form Lebanon. [Mr B] was [age] years old at that time and he remained in the care of his mother’s friends for approximately two years before being removed by their father. Nevertheless, he continued to suffer physical and psychological abuse at the hands of his paternal grandmother, a paternal uncle and a cousin. It was not claimed that he was subjected to any further abuse by his mother’s friends following his removal from their care. The Tribunal accepts that, despite his own limited memory of this period of his early childhood, [Mr B] has been deeply affected by these experiences. In her submissions, [Ms E] put forward her opinion, as well as the opinion of other family members in relation to the psychological impact of their brother’s childhood experiences, including the opinion that he may have Post Traumatic Stress Disorder or may have suffered ‘separation anxiety’ as a child due to separation from his mother. Whilst [Ms E] referred in her submission to medical articles in support of these personal views, no medical or psychological evidence by a qualified practitioner was provided. Nevertheless, the Tribunal accepts that [Mr B] has been deeply impacted by his early childhood experiences.

4. In his evidence to the Tribunal, [Mr B] expressed concern that he could be subjected to the same treatment he was subjected to as a child. In the Tribunal’s view, however, the horrendous abuse against [Mr B] as a young child by friends and relatives was perpetrated a long time ago in opportunistic circumstances where his assailants had targeted a defenceless young child who was left in their care and deprived of the protection of his immediate family, including his father, who himself was vulnerable and abused due to his mental illness. Despite these experiences, [Mr B] is an independent, functioning adult now. According to [Ms E]’s submissions, the ties with the extended family in Lebanon were severed long ago and there has been no further communication since the family’s departure from Lebanon. There was no evidence before the Tribunal to suggest that those who perpetrated the abuse in Lebanon have demonstrated in any way that they intend to harm [Mr B] or members of his immediate family. In these circumstances, the Tribunal is not persuaded that, if removed to Lebanon, there is a real chance or a real risk that members of [Mr B]’s extended family would target him for harm for any reason, including, as claimed at the hearing, the historical animosity towards [Mr B]’s parents due to their respective families’ opposition to their marriage or because his extended paternal family are ‘uneducated people with criminal instinct’ as claimed by [Ms G] in her written evidence.

5. The Tribunal accepts that on 25 April 2022, [Mr B] was admitted to hospital after [collapsing]. According to the hospital Discharge Summary, he was diagnosed with [Medical condition 2], [injuries]. In her letter of 29 April 2022, [Ms E] expressed concern in relation to prospects of recurrence, particularly in Lebanon ‘where he has no support and with desperate people all around who may take advantage of his condition if he faints again.’ [Ms E] stated that the family hoped that this was a one-off incident triggered by being reminded of his pasta traumatic experiences at the Tribunal hearing. [Ms E] noted that there is a history of cardiovascular disease in her family and that a medical appointment has been booked for [Mr B] with a cardiologist for further investigation. No further medical evidence has been submitted. On the basis of the available evidence, it appears that this was an isolated incident. Whether [Mr B] may experience a similar incident in Lebanon and what may be the various possible consequences are purely speculative. The Tribunal does not accept that this incident indicates that there is a real chance or a real risk that [Mr B] will face serious harm for a Convention reasons or significant harm as defined under the Act if removed to Lebanon.

6. In her written statement of 28 April 2022, [Ms G] expressed concern that her brother may self-harm if he was removed to Lebanon. She suggested that her brother would be unfamiliar with the country ‘where he had the most painful childhood’. [Ms E] also expressed concern that [Mr B]’s traumatic childhood experience will have a detrimental effect on his mental and physical health should he be reminded of them by returning to Lebanon. The Tribunal is highly empathetic to and appreciates the difficulties and the agony that may result from [Mr B]’s removal to Lebanon. However, the Tribunal finds that any self-harm or any mental anguish or illness as a result of removal does not amount to serious harm for a Convention reason. With regard to complementary protection, the descriptions of the types of significant harm in s 36(2A) do not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[6]

   Sister’s relationship

   [6] See CHB16 v MIBP [2019] FCA 1089.

7. [Ms G] also claimed in her statement that members of the extended family will ‘chase’ and ‘kill’ her brother because they are aware of her out of wedlock relationship with an Australian Christian Catholic man. They think she has committed a sin and should be killed, and that her father and brothers are responsible for allowing this to happen. The Tribunal does not find this claim persuasive. In light of the absence of any exiting ties or communication with the extended family, no evidence was submitted to suggest that the extended family in Lebanon have, in fact, adversely reacted to [Ms G]’s circumstances, have made any attempts to communicate their displeasure or have made any threats against her, let alone against any other member of her immediate family, including [Mr B]. The Tribunal considers [Ms G]’s claims in this regard to be speculative and is not persuaded that there is a real chance or a real risk that the extended family in Lebanon would subject [Mr B] to serious or significant harm because of her relationship.

   Being a ‘foreigner’ in Lebanon

8. Throughout the process, it was claimed by [Mr B] and on his behalf that he has resided in Australia ever since he was young child, he has very limited Arabic language skills, he is not familiar with the country, he has no network in Lebanon and he will find it difficult to adjust. It was further claimed that he will stand out as a foreigner, will be discriminated against and exploited.

9. The Tribunal appreciates and accepts that [Mr B] has resided in Australia since his arrival in 2002. The Tribunal accepts that if he were to return to Lebanon, he will face hard challenges in adjusting to life in Lebanon, including becoming familiar with the country, finding means of supporting himself and finding appropriate accommodation. The Tribunal accepts that his limited Arabic language skills will no doubt contribute to making the process of adjustment harder. The Tribunal also accepts that he is very close to members of his immediate family and appreciates that he will find separation from them very difficult. According to [Ms E], ties with the extended family in Lebanon have been severed and [Mr B] has no close contact to rely upon. Nevertheless, according to his own written evidence to the Tribunal, [Mr B] is educated, has a number of qualifications and is highly industrious. After completing his HSC, [Mr B] obtained a [qualification] and he is a qualified [occupation]. Whilst he has not obtained any vocational experience in this field, he has established a viable family business (since 2016) and has obtained other qualifications, including a [deleted]. [Mr B] has also worked as [an occupation] at [a workplace] and he is currently employed at [a workplace] in addition to running his business. The Tribunal has considered the news articles and reports submitted by [Ms E] in her pre-hearing submissions in relation to Lebanon’s economic situation and its impact on the supply of commodities, allocation of utilities and the standard of living. The Tribunal accepts that the economic situation in Lebanon has deteriorated significantly over the past few years, creating challenging economic circumstances for many Lebanese nationals who compete for the same resources. The Tribunal has also considered the impact of [Mr B]’s childhood experiences, including the submissions put forward on his behalf that he ‘subconsciously tries to stay away from people or anything that is Lebanese’ to avoid ‘bad’ or ‘negative’ feelings. However, the evidence before the Tribunal clearly suggests that, despite his childhood experiences and their impact, [Mr B] has proven himself to be resilient, resourceful and engaged. He has qualifications, skills and experience that would inevitably assist him in finding means of supporting himself, as well as appropriate accommodation in Lebanon. There is no persuasive evidence before the Tribunal to suggest that he would be prevented from earning a livelihood or finding a place to reside in, either temporarily or a for a longer period, in Lebanon.

10. The Tribunal appreciates [Mr B]’s predicament. However, it does not accept that the challenges he is likely to face in Lebanon amount to serious harm for a Convention reason or significant harm for the purposes of the complimentary protection criteria. The Tribunal does not accept that the adjustment challenges [Mr B] would face if removed to Lebanon amount to serious or significant harm. The Tribunal does not accept that separation from his family members in Australia as a result of removal to Lebanon amounts to serious harm for a Convention reason or meets the definitions of ‘significant harm’ in s 36(2A) of the Act. The Tribunal does not accept that there is a real chance that he will face serious harm, including significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist, or there is a real risk that he will be subjected to significant harm if removed to Lebanon.

11. As discussed with [Mr B], the Lebanese diaspora is one of the largest worldwide. Many expatriate Lebanese maintain close family or business relationships within Lebanon and return to the country frequently, entering and exiting without difficulty.[7] The Tribunal has found no persuasive evidence in any of the sources consulted to suggest Lebanese nationals who return to Lebanon after many years of absence, regardless of their usual country of residence, are discriminated against or treated adversely due to being perceived as ‘foreigners’ or outsiders. The Tribunal is not satisfied that there is a real chance or a real risk that [Mr B] would experience discrimination amounting to serious harm or significant harm if removed to Lebanon.

    [7] DFAT, n5, above.

12. The Tribunal understands [Mr B]’s concerns regarding shortages and an increase in crime rate. More specifically, [Ms E] in her submissions referred to two news articles relating to the rise of kidnappings and extortions in Lebanon. The articles, one of which dated back to 2013, also referred to many Lebanese nationals, particularly those with ‘foreign passports’ having left Lebanon for a variety of reasons, including the deteriorating economic situation. [Ms E] submitted that her brother would be an easy target for kidnappers as he would be seen as a ‘foreigner with money’ and his limited Arabic language skills would exacerbate the risk. The available evidence suggests that the Lebanese diaspora, as well as others continue to travel to Lebanon.[8] The country information before the Tribunal did not indicate that Lebanese nationals who return to Lebanon, regardless of their Arabic language skills, are specifically targeted for kidnapping by criminal gangs. The April 2022 article submitted by [Ms E] indicated that the Intelligence Directorate of the Lebanese Army had freed three individuals, including a Syrian national, a Yemeni national and a Lebanese national. These individuals had been ‘lured’ by criminal gangs using social media, often through ads on TikTok, claiming they can help with emigration applications.[9] There was no other information in relation to the particular characteristics of these victims or the kidnappers’ motives, including their perceived wealth. The January 2022 Arabnews article, also noted an increase in the number of crimes in Lebanon, including theft, kidnapping, extortion and murder. In relation to kidnappings, the article referred to three cases where the victims had been kidnapped from Beirut or Bekaa. In two of the cases the kidnappers had demanded a ransom and in one the demands were kept secret. This article also did not contain any additional information in relation to the victims, their profile or why they had been targeted.

    [8] See for example, Sarna, S, Lebanon is making a comeback with a fresh wave of tourism this summer, europnews.travel, 22 June 2022, and The number of tourists in Lebanon nearly doubles in the first half of 2022, L’Orient Today, 30 August 2022,

    [9] Houssari, N, Lebanese security forces warn of rise in kidnappings for ransom, Arabnews, 28 April 2022, Lebanese security forces warn of rise in kidnappings for ransom (arabnews.com).

13. The Tribunal is not persuaded on the basis of the evidence before it that incidents of kidnapping are so widespread and prevalent in Tripoli or Lebanon in general to suggest that there is more than a remote chance or risk that Lebanese nationals who return to or visit Lebanon from the West would be targeted by opportunistic criminals for the reason of or reasons arising from the place where they travelled from, any related perception of wealth or their unfamiliarity with the country or the Arabic language. The Tribunal does not accept that there is a comparatively ‘very high risk’ that [Mr B] will be kidnapped due to his limited language skills as suggested by [Ms E]. The Tribunal is not satisfied that there is a real chance that he will be the victim of generalised crime, such as kidnapping for any Convention reason, including his membership of any particular social group, such as returnees from the West, returnees from the West with limited Arabic language skills, perceived foreigners, and perceived wealthy expatriates. Similarly, the Tribunal does not accept that there is a real risk that [Mr B] faces significant harm at the hands of criminal groups in Lebanon.

    Father’s experiences in Lebanon

14. In his Protection visa application, [Mr D] referred to his experiences of harm in Lebanon at the hands of the then occupying Syrian forces in the 1980s. He expressed concern for the safety of his sons due his own experiences and profile as an anti-Assad Sunni Muslim. In his oral evidence to the first Tribunal, [Mr B] also stated that his father was threatened in Lebanon and those threats will carry over to members of his family. The first Tribunal discussed these claims with the applicants. The Tribunal accepts that [Mr D] experienced mistreatment in the 1980s at the hands of the occupying Syrian forces, likely due to his anti-Syrian views. However, these incidents occurred some 40 years ago and well before [Mr B] was born. The Syrian forces withdrew from Lebanon in 2005.[10] [Mr B]’s home area, Tripoli, is a predominantly Sunni city[11] with the majority of its Sunni population harbouring anti-Assad sentiments, particularly after the Syrian civil war ‘spilled over into the city’.[12] There is no persuasive evidence before the Tribunal to suggest that the Sunni population of Tripoli have been subjected to harm or mistreatment for harbouring or expressing anti-Assad or anti-Syrian views by anyone, including Alawis, Shi'as in general, Hezbollah, the Lebanese Armed Forces or any other group or individual. The Tribunal does not accept that if [Mr B] were to be removed to Lebanon, there is a real chance or a real risk that he will be subjected to serious or significant harm for the reason of or reason arising from his expressed or imputed anti-Assad or into-Syrian views, his father’s views or his membership of his father’s family.   

    Religion and ISIS

    [10] Khairallah, K, The significance of Syria’s exit from Lebanon, The Arab Weekly, 5 May 2022, The significance of Syria’s exit from Lebanon | Khairallah Khairallah | AW (thearabweekly.com).

    [11] El Husseini, R, Tripoli: the Lebanese city of contrasts that’s now the bride of an ongoing uprising, 5 November 2019, Tripoli: the Lebanese city of contrasts that's now the bride of an ongoing uprising (theconversation.com).

    [12] Ibid.

15. Before the first Tribunal, [Mr B] also stated that he is not very religious and is fearful of ISIS, who may try to recruit him or impose their ideas on him. He stated that he is critical of ISIS and opposed to their views. The Tribunal has found no persuasive information in any of the sources consulted to suggest that Sunni Muslims in Tripoli are at risk of being forcefully recruited by ISIS or that the organisation wields any meaningful influence or is capable of forcefully recruiting Sunni Muslims, impose their ideas or harm any segment of the Lebanese population due to their views, including religious views, or perceived conduct. The Tribunal finds that there is no real chance or a real risk that [Mr B] will be subjected to serious or significant harm in Lebanon at the hands of ISIS members or supporters.

    Sectarian conflict and general violence

16. The Tribunal accepts that, historically, there have been sectarian tensions between the Sunni and Alawi populations of Tripoli, which for periods of time have found expression in sectarian violence and armed clashes between competing Sunni and Alawi militias. These clashes intensified at the beginning of the Syrian civil war but were brought under control by the Lebanese authorities in 2015, resulting in a significant reduction of incidents of sectarian violence in that city. According to DFAT,   

    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.[13]

    [13] DFAT, n5, above.

17. The Tribunal further accepts that sporadic sectarian clashes between armed militias do occur from time to time and in different locations in Lebanon. DFAT has reported that ‘Lebanese religious leaders and state authorities are sensitive to the potential impact of communal violence on national security, including the possibility that external conflicts with sectarian dimensions’ and that ‘Lebanese authorities are committed to preventing violence between religious communities.’[14] The country information before the Tribunal does not support the view that ‘all’ Sunnis in north of Lebanon have become targets by Shi’as, Alawis, supporters of the Syrian regime or the Lebanese Armed Forces. The Tribunal does not accept that there is a real chance or a real risk that [Mr B] will be subjected to serious harm or significant harm for the reason of or for reasons arising from his Sunni religion and/or sectarian clashes in Tripoli or elsewhere in Lebanon.

    [14] Ibid.

1. The Tribunal has also considered the more general references in the evidence presented by [Mr B] and on his behalf to the security situation in Lebanon, including religious conflict, political instability, economic downturn and general violence. However, there is no persuasive information before the Tribunal to suggest that any risks associated with the general security situation giving rise to these concerns are faced by [Mr B] personally. The Tribunal is not satisfied that [Mr B] faces a real chance of persecution for a Convention reason as a result of the general security situation in Lebanon.

2. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that any risk associated with the lack of general security, sectarian conflict and political instability is faced by the population generally and not by [Mr B] personally. The Tribunal finds that there is no real risk that he will suffer significant harm in Lebanon as a result of religious conflict, political tensions, economic downturn and general violence.

3. The Tribunal has considered the submissions, letters and the oral evidence provided in support of [Mr B] by his sisters and his mother, expressing concerns for his welfare. The Tribunal has addressed these concerns in its reasons, above. The Tribunal appreciates and understands the family’s general concerns for [Mr B] should he be removed to Lebanon. However, these general concerns do not give rise to a real chance or a real risk of serious or significant harm.

   Conclusions

4. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Lebanon for the reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

6. The Tribunal has determined that [Mr A] satisfies the criterion set out in s 36(2)(a). The evidence provided to the Tribunal points to the emotional and financial interdependence that exists between [Mr A] and [Mr B]. The Tribunal accepts this evidence, as well as the fact that they reside in the same household. On this basis, the Tribunal is prepared to accept that [Mr B] is a member of [Mr A]’s family unit as defined by the Act. However, [Mr B]’s application based on membership of family unit under the criteria in s 36(2)(b) was considered in his previous Protection visa application. Consequently, the Tribunal is unable to consider the s 36(2)(b) criteria again.

7. The Tribunal has not determined that [Mr A] meets the s 36(2)(aa) criteria. Therefore, [Mr B] is unable to meet the criteria in s 36(2)(c). It follows that the Tribunal cannot be satisfied that [Mr B] meets any of the criteria in s 36(2) that the Tribunal can consider.

   Referral to the Minister

8. Under s 351, s 417 and 501J of the Act, the Minister can substitute the Tribunal’s decision with a decision that is more favourable to a person, if the Minister forms the view that it is in the public interest to do so. Having considered the ministerial guidelines relating to the Minister’s discretionary power as set out in PAM3: Minister’s guidelines on ministerial powers (s351, s417 and s501J), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention as it involves unique and exceptional circumstances as described under section 4 of the guidelines.

9. As the complex history of this case suggests, for a variety of reasons, including circumstances not anticipated by relevant legislation, or clearly unintended consequences of legislation, namely the introduction of the complementary protection provisions, [Mr B] has been caught in a long and protracted application process first initiated by his mother some 18 years ago. Subsequently, his parents and one of his sisters were granted Protection visas and they, as well as his older sister, [Ms E], are all now Australian citizens. In this review, the Tribunal has also determined that his brother, [Mr A], is entitled to a Protection visa.

10. [Mr B] arrived in Australia when he was [age] years old, after enduring serious physical, psychological and sexual abuse as a young child at the hands of members of his extended family, as well as family friends. Despite these horrendous early childhood experiences and the evidence put forward by members of his family regarding the enduring traumatic impact of these events, he has grown up in Australia to become a resilient adult and a productive, well-integrated member of the Australian community. Importantly, ample persuasive evidence has been submitted to demonstrate that he is a primary and indispensable source of emotional, financial and practical support for members of his family, particularly his mentally ill father and brother. [Mr B] has proven himself to be entrepreneurial and highly industrious by establishing a business in 2016, which is the source of the family’s income and where his sister and brother are employed. In addition to running the business, he is employed at [a workplace], has obtained numerous educational and vocational qualifications, and has been engaged in various community service activities. The Tribunal did not form the view that [Mr B] has engaged in these activities for any reason other than his sincere commitment to volunteer work and serving his community.

11. The Tribunal is of the view that [Mr B]’s removal from Australia and separation from his family would have a devastating psychological, emotional and financial impact on members of his family in Australia. Therefore, consistently with the guidelines, there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to his Australian family unit, where four members of the family are Australian citizens and two of them are highly vulnerable. This matter involves compelling and exceptional circumstances and should be referred to the Minister.

    DECISION

12. The Tribunal remits the matter for reconsideration with the direction that [Mr A] satisfies s 36(2)(a) of the Migration Act.

13. The Tribunal affirms the decision not to grant [Mr B] a Protection visa.

    Shahyar Roushan
    Senior Member