1923890 (Refugee) - [2024] ARTA 757

1923890 (Refugee) [2024] ARTA 757 (29 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1923890
Tribunal:General Member S Manera
Date:29 November 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 29 November 2024 at 2:00pm

CATCHWORDS
REFUGEE – Protection Visa – Lebanon – victim of abuse from husband – husband has passed away – abandoned the claim – membership of a particular social group – a failed asylum seeker – an elderly person with permanent disabilities – person returning to Lebanon after a prolonged absence – real risk of being affected by war is one faced by the population generally – family ties to Australia far outweigh her ties in Lebanon – compassionate circumstances – referral to the Minister – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZTGM v MIBP (2017) 262 CLR 362

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
Background

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 August 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Lebanon, applied for the visa on 1 August 2018.
Evidence before the Department
In her protection visa application form, the applicant claimed as follows:
·in Lebanon she lived with an abusive husband who was an alcoholic and gambler. He abused the applicant emotionally, psychologically and financially. He was abusive towards her;
·if she returned to Lebanon she would have to return to her husband, who would continue to abuse her. It is not possible to divorce in the Maronite church;
·the Lebanese authorities would not offer protection to her;
·she would not be able to relocate within Lebanon.
The applicant attended an interview with an officer of the Department on 20 August 2019. During her interview, she reiterated her claim that her husband would harm her if she were to return to Lebanon.
The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act). While the delegate accepted that the applicant had been the victim of abuse from her husband, they did not accept the applicant’s husband has a continued interest in her and would resume the abuse if she were to return to Lebanon.
Evidence before the Tribunal
The applicant made an application for review on 27 August 2019. The Tribunal finds that the applicant has made a valid application for review. The applicant provided a copy of the delegate’s decision to the Tribunal.
On 3 October 2024 the applicant, via her representative, provided the following documents in support of her application for review:
·pre-hearing written submission dated 3 October 2024 by the applicant’s representative;
·bundle of photos of the applicant with her Australian family members;
·medical assessment by the Personal Injury Commission, Motor Accidents Division;
·medical report for the applicant from Dr [A] dated 16 September 2024 regarding the applicant’s current health condition, the medication she currently takes, and the applicant’s ability to access equivalent treatment in Lebanon;
·Department of Foreign Affairs and Trade (DFAT) country information report for Lebanon dated 26 June 2023.
The representative’s submission dated 3 October 2024 stated that the applicant’s husband has passed away and the applicant no longer relied on the claims set out in her protection visa application. Instead, she sought to rely on new claims, namely she fears persecution because of her membership of the following particular social groups:
·an elderly person with permanent disabilities;
·a failed asylum seeker; and
·a person returning to Lebanon after a prolonged absence.
On 8 October 2024 the applicant’s representative provided a further pre-hearing submission to the Tribunal. The submissions provided a timeline and analysis of the current war in Lebanon, and the impact on Lebanese residents. It stated that due to the war, the applicant’s daughter in Lebanon has fled her home with her family.
The applicant appeared before the Tribunal on 9 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr B], who is the applicant's son. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
On 4 November 2024 the applicant’s representative provided a post-hearing submission to the Tribunal dated 4 November 2024. In it, the applicant’s representative submitted that, given the applicant’s medical conditions and age, she is at risk of significant harm over and above the general population. The submission also asked the Tribunal to make a referral to the Minister for intervention, in the event the Tribunal was unable to remit the matter to the Department.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (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, 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.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
An applicant will suffer significant harm if they will be subjected to torture: s 36(2A)(c). Torture is exhaustively defined in s 5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
The final type of significant harm listed in s 36(2A) is degrading treatment or punishment: s 36(2A)(e). Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
In her application for a protection visa, the applicant claims to be a citizen of Lebanon, born in [a region].
The applicant provided a certified copy of her passport bio-data page in support of her protection visa application. This document states it was issued in ‘Beyrouth’.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Lebanon, and as such her protection claims will be assessed against Lebanon as the country of reference and ‘receiving country’ respectively.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the criteria for protection?
Elderly person with permanent disabilities
During the hearing the applicant confirmed that she has lived in Australia for approximately the past 24 years. She stated that she was not currently in good health. When asked about her health, she said that she suffers from neck pain as a result of a car accident, she has trouble lifting her arms because of a disc in her neck, and she requires medication to sleep. She takes [tablets] per day and paracetamol as needed. She stated that she used to attend weekly physiotherapy sessions and will resume the sessions in the New Year. She also stated that she needs an operation on her neck.
The Tribunal asked the applicant what she thought would happen to her if she had to return to Lebanon. She responded that it would be very difficult to go back, considering the current situation the country is in. She said that hospitals are overwhelmed with patients and do not provide adequate healthcare. She stated that she would not be able to get the medication that she needs in Lebanon. She also stated that people of her age do not receive adequate care as hospitals prioritise providing health care to war victims.
The applicant’s son gave evidence during her hearing. He said that his mother could not sleep without taking sleeping tablets. She has had neck problems since the car accident. She receives regular physiotherapy and may need surgery.
The Tribunal has reviewed and considered the evidence provided regarding the applicant’s health. It accepts that she was in a car accident in 2020 and, as a result, suffered a permanent injury to her spine, resulting in pain and restriction in shoulder motion. While no corroborative evidence has been provided, it accepts the applicant requires surgery on her neck. It further accepts that the applicant takes [medication] to treat her insomnia, and that this medication would not be available to her in Lebanon. It also accepts it may be difficult for her to access similar medication in Lebanon. It also accepts the applicant has a need for ongoing physiotherapy.
The Tribunal is satisfied that ‘elderly people with permanent disabilities’ is a particular social group, and the applicant is a member of this group.
However, the Tribunal put to the applicant during the hearing that while she may not be able to receive adequate healthcare in Lebanon, it did not appear that she would be denied treatment because of her age or health condition, rather the reason is that the Lebanese healthcare system is overwhelmed because of the country’s economic issues, as well as the recent war. It was put to the applicant that it did not appear that she would face personal discrimination or denial of treatment because of a refugee protection reason in s 5J(1)(a). The applicant did not have any comment to make to this.
It was also put to the applicant that it did not appear that any harm or suffering she would face in Lebanon would be intentionally inflicted; there was no actual, subjective intention on the part of anyone to bring about her suffering. Rather, it seems there is an inadequacy of medical treatment in Lebanon due to the current economic and security situation. Furthermore, the war in Lebanon affects the whole population of Lebanon; the risk is not faced by her personally. Again, the applicant did not have any comment to make.
Country information sources state that attacks on hospitals and health workers has jeopardised provision of healthcare in Lebanon.[1] According to a recent statement by the World Health Organisation:
Hospitals in Lebanon are already under massive strain as they strive to sustain essential health services while dealing with an unprecedented influx of injured people. Understaffed and under-resourced, the health system has been struggling to maintain uninterrupted services to all those in need with supplies being depleted and health workers exhausted.
Increasing conflict, intense bombardment and insecurity are forcing a growing number of health facilities to shut down, particularly in the south. Out of 207 primary health care centres and dispensaries in conflict-affected areas, 100 are now closed. Hospitals have had to close or evacuate due to structural damage or their proximity to areas of intense bombardment.
…
“The situation in Lebanon is alarming. Attacks on health care debilitate health systems and impede their ability to continue to perform. They also prevent entire communities from accessing health services when they need them the most,” said Dr Hanan Balkhy, WHO Regional Director for the Eastern Mediterranean. “WHO is working tirelessly with the Ministry of Public Health in Lebanon to address critical gaps and support the continuity of essential health services, but what people of Lebanon need most is an immediate ceasefire.”[2]
[1] Attacks on hospitals and health workers jeopardize provision of health in Lebanon, World Health Organization (14 October 2024) <Attacks on hospitals and health workers jeopardize provision of health in Lebanon>; Aoun, N., Tajvar, M. Healthcare delivery in Lebanon: a critical scoping review of strengths, weaknesses, opportunities, and threats. BMC Health Serv Res 24, 1122 (2024).
[2] Attacks on hospitals and health workers jeopardize provision of health in Lebanon, World Health Organization (14 October 2024) <Attacks on hospitals and health workers jeopardize provision of health in Lebanon>
More than 70 healthcare workers have been killed in attacks on health facilities between October 2023 and October 2024.[3]
[3] 'Lebanon: Flash Update #33 - Escalation of hostilities in Lebanon, as of 7 October 2024', United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), 07 October 2024, p.1, 20241010093924; 'Statement by the Humanitarian Coordinator for Lebanon, Imran Riza, on the attacks against healthcare in Lebanon, 3 October 2024', United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), 3 October 2024, 20241004095258.

A report titled ‘Healthcare delivery in Lebanon: a critical scoping review of strengths, weaknesses, opportunities, and threats’, published on 27 September 2024, states ‘The country’s health status has remained stagnant due to socio-economic disparities, lack of health coverage, poor infrastructure, and political instability, preventing adequate healthcare for the majority of the population.’[4] Human rights reports concur that the crises have devastated the healthcare sector, with shortages of medicines and medical supplies leading to deaths, fuel and electricity shortages leaving hospitals permanently closed or ceasing operations, and declining salary values triggering a mass exodus of doctors and nurses.[5]
[4] Aoun, N., Tajvar, M. Healthcare delivery in Lebanon: a critical scoping review of strengths, weaknesses, opportunities, and threats. BMC Health Serv Res 24, 1122 (2024).
[5] Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022, p.230, 20220330091551; 'Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023, pp.379-380, 20230112144355; 'Visit to Lebanon. Report of the Special Rapporteur on extreme poverty and human rights, Olivier De Schutter', United Nations Human Rights Council, 11 April 2022, 20220512135540.
The Tribunal accepts that people in Lebanon with particular vulnerabilities, for example the elderly or disabled, face particular hardships due to the lack of basic social protection guarantees[6], the economic crisis, and the war. The Tribunal accepts that because the applicant will be unable to access adequate healthcare and medication, her physical and mental health would be significantly compromised and there is a real chance she would suffer serious harm. However, under s 5J(4)(a), one or more of the 5 refugee protection reasons in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion) must be the ‘essential’ and ‘significant’ reason for the person’s fear of persecution.[7] In the present matter, the Tribunal does not accept the applicant would be denied adequate healthcare because of one of the refugee protection reasons. On the country information, the dire healthcare situation in Lebanon affects everyone. There is no persuasive evidence before the Tribunal that the applicant would be denied treatment because of her age or health condition. In relation to this claim, the Tribunal does not accept the applicant has a well-founded fear of persecution for any of the 5 refugee protection reasons in s 5J(1)(a) of the Act.
[6] Older people in Lebanon face desperate circumstances due to lack of basic social protection guarantees, International Labour Organization (24 May 2022) <
[7] The Refugee Law Guidelines at 3.10.2.
In relation to the complementary protection criterion in s 36(2)(aa), the Tribunal notes the applicant is not claiming that she would be arbitrarily deprived of her life, that she would face the death penalty, or that she would face torture as a result of being denied medical treatment or medication, and there is no persuasive evidence before the Tribunal to support this. As such, the Tribunal has turned to consider whether she faces a real risk of cruel or inhuman treatment or punishment, or degrading treatment or punishment. To meet the definition of cruel or inhuman treatment or punishment, an act or omission requires an actual, subjective intention on the part of the perpetrator to inflict either severe pain or suffering or some level of pain or suffering.[8]
[8] The Complementary Protection Guidelines at 3.4.5.4.
As stated above, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[9]
[9] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
In the present matter, the Tribunal does not accept that there is any intention on the part of the Lebanese healthcare workers, the authorities, or any other person or group in Lebanon, to intentionally inflict pain or suffering on the applicant, or cause extreme humiliation to the applicant. There is no persuasive evidence to support this. Rather, there is an inadequacy of medical treatment in Lebanon caused by the economic situation and war. The Tribunal finds that the harm the applicant fears would not satisfy the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment in s 5(1) of the Act. As such, the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm as that term is defined in s 36(2A) of the Act as a consequence of her return to Lebanon as an elderly and disabled woman.
Furthermore, the Tribunal considers that the real risk of being unable to access adequate medical treatment is one faced by the population generally and not by the applicant personally such that s 36(2B)(c) applies and there is taken not to be a real risk she will suffer significant harm in Lebanon on this basis.
Failed asylum seeker and returnee to Lebanon after a prolonged absence
The Tribunal notes the representative’s submission that the applicant faces a real chance or real risk of serious or significant harm because she would be returning to Lebanon as a failed asylum seeker, and she would be returning to Lebanon after a prolonged absence. The Tribunal notes the applicant did not raise this claim when asked why she did not want to return to Lebanon. Furthermore, the Tribunal notes the applicant’s representative did not provide any country information to substantiate this claim.
According to the latest DFAT report on Lebanon, it is not a crime for Lebanese citizens to seek asylum abroad, and DFAT has no evidence to suggest that failed asylum seekers are subject to any particular type of official or social discrimination.[10] When the Tribunal put this country information to the applicant, she did not have any comment to make. On the country information, and the applicant’s failure to explain how she would be impacted as a failed asylum seeker and/or returnee to Lebanon after a prolonged absence, the Tribunal does not accept the applicant faces a real chance of serious harm for reasons of being a failed asylum seeker or a returnee to Lebanon after a prolonged absence.
[10] 'DFAT Country Information Report: Lebanon', (DFAT Report) Department of Foreign Affairs and Trade, 26 June 2023 at 5.26.
The Tribunal has also considered this claim under the complementary protection criterion in s 36(2)(aa). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) for reasons of being a failed asylum seeker or a returnee to Lebanon after a prolonged absence.
Women
The Tribunal notes the representative’s submission dated 3 October 2024 which contains an extract from the latest DFAT report regarding the situation for women in Lebanon. The Tribunal accepts the following information from the latest report, and referred to in the representative’s submissions, which states as follows:
Lebanese women face a moderate risk of official discrimination as the lack of a civil code for personal status issues means that women from of all religions are forced to abide by personal status codes that discriminate against them. Women also face a moderate risk of official discrimination in that inadequate legislation, lack of enforcement, and long-standing traditional values and gender roles continue to restrict their full participation in the workforce and community, particularly for women from rural and socially conservative communities. DFAT further assesses that women in Lebanon face a moderate risk of family and sexual violence; this risk increases for members of vulnerable communities including those in rural areas, conservative religious groups and in Syrian refugee communities.[11]
[11] DFAT Report at 3.62.
However, the applicant has not explained why she faces a real chance or real risk of serious or significant harm for reason of her sex, or whether any such harm would be tantamount to serious or significant harm. The Tribunal put to the applicant during the hearing that while country information indicates that some women face particular risks in Lebanon, the applicant’s husband in Lebanon has passed away. The applicant does not have any male family members whom she fears in Lebanon. The applicant responded that while her husband has passed away, she has nothing to go back to in Lebanon.
The Tribunal has considered the applicant circumstances, namely that her husband has passed away and she does not have any male relatives in Lebanon whom she fears. The Tribunal has also considered the above-mentioned country information. There is no persuasive evidence that the applicant faces a real chance or real risk of serious or significant harm for reason of her sex.
The war in Lebanon and the applicant’s nationality
The Tribunal accepts that the security situation continues to deteriorate in Lebanon. The Tribunal also notes information on the DFAT website which advises Australians not to travel to Lebanon due to the volatile security situation and the risk of the security situation deteriorating further.[12] The Tribunal notes that rocket and missile fire commenced in southern Lebanon, and has spread to other areas in Lebanon.[13] According to the Lebanese Health Ministry, the death toll in Lebanon from Israel’s bombing is more than 3,583, with thousands more injured and others missing.[14] The Tribunal also notes from the post-hearing submission dated 8 October 2024 that the applicant’s sister and her family have been displaced from their home because of the war. Considering the significant escalation of hostilities with Israel in recent weeks resulting in the displacement of over 1 million people,[15] and DFAT’s assessment that Israeli military airstrikes in southern Beirut and other locations and Israeli military ground operations in southern Lebanon are likely to continue,[16] the Tribunal accepts there is a real chance the applicant will be a victim of the military action. During the hearing the Tribunal put to the applicant that the war appeared to affect everyone in Lebanon; she did not appear to face a particular risk of harm for a refugee reason or because of a characteristic which distinguished her from the population generally. The applicant said that she was not claiming that would be treated differently, rather, in Lebanon she would not be able to access the medical treatment and medication she needs. She said that she did not fear any person or group in particular. When asked how she would be personally affected by the conflict in Lebanon, she said that she did not know how things would develop, but if the war were to escalate the whole city of Beirut would be impacted. The applicant stated later in the hearing that Hezbollah did not particularly like Christians. The applicant’s representative submitted during the hearing that the applicant would be harmed because she is a Lebanese national.
[12]
[13] Ibid.
[14] Wassim Seifeddine, ‘Lebanon death toll reaches 3,583 as Israeli attacks kill 25 more people’, ABC News (21 November 2024) < Lebanon death toll reaches 3,583 as Israeli attacks kill 25 more people>
[15] How is Lebanon’s cash-strapped government responding to war?, AlJazeera (17 October 2024) <
[16]
On the country information and the applicant’s evidence, the Tribunal is not satisfied that the essential and significant reason for the harm is any of the 5 refugee protection reasons in s 5J(1)(a) of the Act. There is no persuasive evidence that the applicant would be personally targeted for harm for any of the 5 refugee protection reasons. While the majority of people in Lebanon are Lebanese citizens and, as such, would comprise the majority of war victims, the Tribunal does not accept the applicant would be targeted for reason of her Lebanese nationality; rather, the risk arises from a person’s physical presence in Lebanon during a war. Attacks have occurred in many parts of Lebanon and anyone, regardless of nationality or status, may be harmed.[17] The Tribunal has not identified country information to indicate that Lebanese nationals in particular are targeted for harm. The Tribunal has also considered the applicant’s claim that Hezbollah does not like Christians. No country information was provided to support this allegation, and the Tribunal has not located country information to support this claim. She did not provide any evidence of having previously come to the adverse attention of Hezbollah members. Considering Hezbollah is currently at war with Israel and, on the country information, Hezbollah is directing its attacks at Israel[18], the Tribunal does not accept the applicant faces a real chance or real risk of serious or significant harm from Hezbollah because of her religion.
[17] Ibid.
[18] What is Hezbollah and why is Israel attacking Lebanon?, BBC (1 October 2024) <What is Hezbollah and why is Israel attacking Lebanon?>
Furthermore, in relation to the applicant’s claims regarding her fear of war in Lebanon, for the reasons set out above, the Tribunal considers that the real risk of being affected by war is one faced by the population generally and not by the applicant personally such that s 36(2B)(c) applies and there is taken not to be a real risk she will suffer significant harm in Lebanon on this basis.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
Referral to the Minister under s 417
The Tribunal is sympathetic to the applicant. It accepts that she has a number of health problems and would face difficulty accessing appropriate healthcare in Lebanon. It acknowledges that she has lived in Australia for a very long time and that her family ties to Australia far outweigh her ties in Lebanon. It accepts that the war in Lebanon has created an extremely difficult situation for everyone there. The Tribunal finds there are compassionate circumstances regarding the applicant’s age and health, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to her. Having considered the complexities of this case and the Minister’s guidelines on ministerial powers, the Tribunal refers the matter to the Minister for consideration.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:   9 October 2024
Representative for the Applicant:           Mr Simar Hermis (MARN: 1464902)
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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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