1925351 (Refugee)

1925351 (Refugee) [2023] AATA 4846 (18 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1925351
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Kylie Allen
DATE:18 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 December 2023 at 10:15am
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion – interreligious marriage – Druze conversion to Christianity – particular social group – claimed fear of family seeking custody of the children in a Druze court, claimed forced conversion to Christianity – family tension – inconstant evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicants are citizens of Lebanon. They applied for protection visas on 15 November 2018. They are a family group of a wife (the first applicant), her husband (the second applicant), their minor son (the third applicant) and their minor daughter (the fourth applicant). In their application, only the first applicant made claims for protection, the second, third and fourth applicants relied on her claims. On 9 September 2019, a delegate of the Minister for Home Affairs (the delegate) made a decision to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is an application for review of that decision.
On 20 November 2021 the third and fourth applicants were returned to Lebanon by their mother. On 3 June 2022 the first applicant returned to Lebanon. None of those applicants have returned to Australia.
The second applicant appeared before the Tribunal on 22 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
CLAIMS AND EVIDENCE
Protection visa application
The applicants were initially assisted by a registered migration agent, Prithvi Prakrishna Chand of Signature Migration, in preparing their protection visa application.
On 14 November 2018 Mr Chand provided the Department with a protection visa application, copies of the applicants’ passports and a statutory declaration prepared by the first applicant on that same date.
In summary the statutory declaration contained the following claims:
·     She was born in [year] in Aley, Lebanon and is a Lebanese citizen with no other nationality or right to enter or reside in a third country.
·     She was born into a conservative Druze family and was formerly married to a Druze man, with whom she had three children. Her first husband passed away.
·     She married the second applicant [in] July 2010, in Lebanon. He is a Maronite Christian and prior to their marriage she was baptised into the Christian faith. She remains a Christian and they have baptised their children into the Christian faith.
·     Her family was initially extremely upset by her marriage to a Christian, but later accepted the marriage on the basis that she remain a devout Druze and that she would not baptise her children. For that reason she was baptised in secret prior to her marriage. Her family are not aware of her baptism or the baptism of her two children.
·     She fears that if her Druze relatives were to become aware of her conversion to the Christian faith they would not only harm her but also her Christian husband and may apply to the Druze religious courts to take full custody of her children.
·     The concealment of her conversion has prevented her from practicing her Christian faith in a meaningful way, including rarely attending Church or praying in front of any Druze members of her family. Her children have also been denied the opportunity to fully live as Christians.
·     They fear that her father may seek to take custody of the children in a Druze court, claiming forced conversion to Christianity.
·     She is claiming persecution on the Convention related grounds of Religion and Membership of a Particular Social Group - vulnerable Lebanese women, and also relies on Complimentary Protection provisions.
·     The applicants are unable to rely on the effective protection of the Lebanese authorities, as the authorities do not generally intervene in religious or family related issues. Such issues are left exclusively to the jurisdiction of confessional religious courts in Lebanon. The Lebanese law does not provide effective protection to Lebanese women when faced with potential harm. There are no protective court orders upon which they can rely when threatened with hostility. The Lebanese authorities continue to remain indifferent to the plight of threatened or physically abused women in Lebanon, leaving such issues to be resolved internally by family or confessional religious courts.
·     Relocation to another part of the country would not be an effective deterrent as Lebanon is a relatively small country and members of her Druze family can easily locate her and inflict harm upon her or members of her family.
The interview
The first applicant attended an interview with the Department on 29 August 2019. The applicant’s migration agent was present and the interview was held with the assistance of an Lebanese Arabic and English interpreter. The second, third and fourth applicants were not interviewed by the Department.
At interview, the applicant gave oral evidence in relation to her claims and made the following additional claims:
·     To avoid harm from her Druze family she regularly changed her residential address while living in Lebanon. She would move as soon as they found out where she was, otherwise, they would kill her.
·     She recounted a story about a Muslim man who married a Druze girl. The family invited him over and cut off his penis. She stated that her family might to do the same thing to her husband.
·     She travelled to Australia and then returned to Lebanon on three occasions after her marriage to visit her adult children from her first marriage who live in Australia. She did not apply for protection at that time as she did not know about protection visas and was overwhelmed.
·     She suffers from depression and severe anxiety. The condition is treated with an anti-depressant to control her symptoms.
Additional documentation
On 3 September 2019, the applicants’ migration agent provided the Department with additional documentation which included:
·     A medical certificate for the first applicant dated 23 August 2019 noting that she is being treated for depression and anxiety related to her difficult life in Lebanon.
·     Copies of identity documents including family registration documents for the applicants and the first applicant’s identity card and the first and second applicants’ marriage certificate.
·     Copies of baptism certificates for the third and fourth applicants and a supporting letter from [the] Orthodox Archdiocese noting that the first applicant converted to Christianity.
The delegate’s decision
In the decision of 9 September 2019 the delegate did not find the first applicant’s claims to be credible. The delegate was not satisfied that there is a real chance that the applicants would face persecution for one or more of the reasons in s 5J(1)(a) of the Act in Lebanon. He was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Lebanon, there is a real risk the applicants would suffer significant harm.
The review application
On 10 September 2019, the applicants applied for a review of the delegate’s decision with the assistance of their migration agent.
On 11 March 2020, the applicants appointed a new migration agent to assist them with their review application, Katrina Haddad Feghali, from Prestige Solicitors & Associates. No additional claims were raised with the review application or after the appointment of the new agent.
Movement records
On 10 June 2022, the Tribunal obtained information from the Department that the first applicant departed Australia [in] June 2022 and that the third and fourth applicants departed Australia [in] November 2021.
Pre-hearing submissions
On 15 November 2023, the second applicant provided the Tribunal with a certificate of completion for a course “Health Survival Tips”.
On 16 November 2023, the second applicant provided the Tribunal with an attendance and participation form for a “SMART recovery” meeting.
On 18 November 2023, the second applicant provided a letter from his son (the third applicant) which sets out his circumstances in Lebanon and contains a plea for reunion with his father.
The hearing
On 22 November 2023, the second applicant appeared before the Tribunal to give evidence and present arguments in relation to his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Lebanese Arabic and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
At the hearing, the second applicant made the following additional claim:
·     Hear fears harm from Hezbollah and his wife’s cousins who are Hezbollah supporters.
·     In 2018 he had a problem with Hezbollah because he is a Christian. He was driving one of his trucks and did not stop at a Hezbollah checkpoint, he hit one of their cars and they shot at him. He went to Syria for one month until they sorted out the issue. He was not harmed at the time because he was under the protection of members of the previous government.
·     He did not have any problems on his return from Syria but was advised to stay local and only travel to Beirut by an indirect path.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are owed protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The first, third and fourth applicants
Under s 36(2) of the Act, the criteria for the grant of a protection visa require that the applicant for the visa is a ‘non-citizen in Australia’. This means that a protection visa may only be granted if the applicant is physically present in Australia.
The Tribunal obtained movement records from the Department which indicate that the first, third and fourth applicants are no longer in Australia. The second applicant confirmed this at interview. On 22 November 2023, the Tribunal wrote to the first, third and fourth applicants to advise that it has information that the third and fourth applicants have not been in Australia since 20 November 2021 and that the first applicant has not been in Australia since 3 June 2022.
The applicants were advised that s 36(2) of the Act requires that an applicant for a protection visa must be a non-citizen in Australia. This means that a protection visa can only be granted if the applicant is in Australia. This information is relevant to the review because if the information is true, the applicants cannot be granted a protection visa. The applicants were invited to give comments on or respond to the adverse information in writing by 14 December 2023.
This information was sent by email to the applicants’ migration agent and by mail to the last address the Tribunal has on file for the applicants. On 23 November 2023, the email notification was returned to sender. There was no response to the letter sent by post.
As the information provided by the Department specifies that the first, third and fourth applicants are no longer in Australia, I am satisfied that those applicants are not a ‘non-citizen in Australia’ and so do not meet the requirements of s 36(2). The first, third and fourth applicants do not satisfy the criteria for the grant of the visa.
The second applicant
Background and identity
The second applicant (also referred to as the applicant) claims to be a Maronite Christian man from [City 1] in Lebanon. In support of his claimed identity the applicant has provided the Department and the Tribunal with documentation including his Lebanese passport and extracts from family and individual registers and translations. Based on his account of his life in Lebanon at hearing and his supporting documentation I am satisfied that the applicant’s identity is as claimed.
At hearing, the applicant advised that his children now live in Lebanon with his mother and sister in [City 1] and that he and his wife own a house there and he and his brother share [a] farm there. I find that the applicant would return to [City 1]if returned to Lebanon in order to be reunited with his children whom he indicated that he misses greatly.
The applicant also provided a detailed account of his business in Lebanon. He claimed he had [Business 1] and owned up to [several] trucks and that he built [structurers] around [City 1] and Aley where his business was based. He claimed that he wound up his business and sold his equipment in the year preceding his move to Australia in preparation for the move. He stated that his wife still owns a home in Aley, although he does not know where she is currently living as they are now separated. I accept that the applicant had [Business 1] in Lebanon.
Christian conversion claims
I have considered the claims made by the first and second applicants in relation to the applicant who is still in Australia. While I accept that the applicant is who he says he is, I do not find his claims for protection to be credible.
Both the first and second applicants claim that the first applicant was of the Druze faith and she converted to Christianity prior to marrying the second applicant. The applicants claim that they feared harm from the first applicant’s family because of her marriage to a non-Druze, her conversion to Christianity and the baptism of their children as Christians. They provided evidence of the first applicant’s conversion including her baptism certificate which stated that she was baptised on 1 July 2010 in [a] Orthodox Church and a marriage certificate which stated that the first and second applicants were married in the [a] Orthodox Archdiocese of [location] on 17 July 2010. At hearing the applicant explained that they had to marry in the orthodox church as the Maronite church would not perform the first applicant’s baptism or their marriage. I accept this explanation. DFAT reports[1] that Lebanese can legally change their religious affiliation. To convert to a different religion, a local senior official of the religious group the person wishes to join must approve the change, and the newly joined religious group must issue a document confirming the convert’s new religion. The convert can then register their new religion with the Ministry of Interior and Municipalities Personal Status Directorate. The new religion is included thereafter on government-issued civil registration documents, along with mention of the original religion. This is consistent with the documentation provided by the applicants. The applicant provided a spontaneous and credible account of his family’s ongoing Christian practice noting that in Australia they attended the [Church 1] and his son participated the youth group. I accept that the applicants are practising Christians and that the first applicant converted from the Druze faith to marry the second applicant.
[1] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report – Lebanon,’ 26 June 2023, 3.20
In Lebanon, the applicants lived in close proximity to the first applicant’s family from whom they claimed to fear harm. At hearing the applicant stated that he and his family lived in [City 1] during his marriage between 2010 and 2018 apart from a 7 or 8 month period when they lived in his wife’s hometown of Aley where she owned a home and where he had a business. There appear to be Maronite and Druze populations in that area which is in the Mount Lebanon Governate[2]. At hearing, the applicant was asked about Aley and [City 1]. He explained that they are about [serval minutes] drive apart. A search on Google maps confirms that they are [several] kilometres apart and both in the Mount Lebanon and Chouf area. There is inconsistent information before the Tribunal about where the applicants lived in Lebanon. The protection visa application states that the applicants lived in [City 1] before moving to Australia in 2018. In the Department’s protection visa decision, the delegate notes that the first applicant advised the Department that she remained safe in Lebanon during her marriage by moving constantly and being discreet about her address. By contrast, at hearing the second applicant claimed that they lived most of their marriage in [City 1] apart from several months in 2015 when they had tried living in Aley because his business was based there, his wife had house there and she wanted to live there and try to bring the family closer together. He stated that during that time her father used to visit their home in Aley, spend time with his grandson and they used to help him with his medication. When asked why they moved back to [City 1] he said it was because they had problems with his wife’s brother and her first cousins who lived in Aley. Based on his direct and natural account of these events, I accept the second applicant’s advice that he and his family lived in [City 1] during most of his marriage apart from a brief period of time in 2015 when they lived in Aley. I consider that the applicants lived in close proximity to the first applicant’s family for the eight years they were married and living in Lebanon and I do not accept that they were in hiding from her family for reasons set out above and below.
[2] Ibid, 3.19

The first and second applicant gave different accounts of their relationship with the first applicant’s family and the harm they feared. In the protection application, the first applicant claimed that she feared harm from her family including her father and that they were in hiding from them because he wanted custody of her children. By contrast the second applicant stated that they were in contact with his wife’s father who is now deceased and that his brother has recently contacted his wife’s brother in relation to her not seeing the children. He stated that in Australia he and his wife regularly socialised with the adult children from her first marriage and that they were close to her brother that lives in Australia. He also stated that in 2019 he and his wife’s brother opened a [Business 2] together in Australia. When it was put to him that this was not consistent with the relationship described by his wife in the protection visa application, the applicant stated that her father had to meet with them secretly, that their problems were only with one of his wife’s brothers and two cousins on her father’s side and that the brother in Australia did not have contact with them when he was in Lebanon. He said that her family found out she had converted to Christianity after the marriage because she had told her girlfriends. Her brother told her that they did not want to have anything to do with her anymore and that one day the second applicant will be held accountable. This was inconsistent with the claims made in the protection application that the applicants feared harm from the first applicant’s father and that they had to remain in hiding so he would not find out about her conversion. I consider that the problems with the first applicant’s family were exaggerated in the protection application.
I have considered what actual harm the applicant faced in Lebanon at the hands of his wife’s family during the 8 years of their marriage that they lived nearby. It was unclear that they had faced any harm at all. At hearing the applicant was prompted to give examples of the harm he faced at the hands of his wife’s family and he stated that they attempted to attend a wedding of one of her relatives in 2016 and were told they were not welcome. He also stated that when his wife’s stepmother passed away they went to pay their condolences and they were told to leave. The examples of harm provided by the applicant of being turned away from a wedding and funeral point to some social exclusion rather than threats of actual harm to him or the children.
At hearing it was put to the applicant that I had concerns about his evidence of the harm he feared at the hands of his wife’s family because of their marriage and her conversion. The applicant was advised that he did not appear to have been subject to any serious harm from the family in the 8 years that they lived nearby; that there were inconsistencies in his and his wife’s accounts of their relationship with her father and other brothers; and the fact that it did not seem plausible that they would live so close to the first applicant’s family or that the second applicant would go into business with the first applicant’s brother if they were fearful for their lives or fearful of losing custody of the children. When invited to comment, the applicant responded they were not harmed by his wife’s family but the threats against them were verbal and they had tried to reconcile. When pressed as to why he and his family were not harmed in all the time they lived so close, the applicant responded that he fled to Syria (this claim is assessed below). It was then put to him that he only claimed to have been in Syria for a month and that from 2010 to 2018 they lived close to his wife’s family and had interaction with them without harm. The applicant conceded that there was no harm only threats but had nothing more to say on the matter.
It was also put to the applicant at hearing that the applicants’ travel movements were not consistent with genuinely fearing harm in Lebanon. The first applicant indicated in her protection application that she first travelled to Australia in 2001. After her marriage she travelled to Australia five times to visit her adult children before claiming protection on her sixth trip, a month after her arrival. The second applicant stated at hearing that he had travelled to Australia once before applying for protection in 2018. When it was put to him that if he and his wife feared harm from her family members because of her conversion, she could have applied for protection at any time on her previous visits or he could have applied on his previous visit. The applicant responded that they did not apply earlier because they needed to obtain visas for themselves and both children. He said that on his wife’s earlier visits he had not been granted a visa, he said that when he went to Australia the time before claiming protection they had not been able to get a visa for their daughter. He also said he needed time to wrap up his business between his first and second visit and prior to 2018. While I still have concerns that the applicants’ regular movements between Lebanon and Australia are not indicative of a family that was fearful for the lives, I am unable to verify if, in fact there were issues with the applicant obtaining a visa for his daughter and I have not considered this matter further one way or the other.
Overall, I accept that the first applicant converted from the Druze to the Christian faith when she married the second applicant and that their children are Christians. I accept that between 2010 and 2018 they lived in the second applicant’s home town, an approximate [minute] drive from the first applicant’s home town and that they lived in the first applicant’s home town for a time in 2015. I accept that the applicants maintained relationships with the first applicant’s family members including her father and brothers. I do accept that the first applicant’s conversion may not have been well-received by her extended family. DFAT reports that while mixed marriages sometimes occur in Lebanon, resulting in some religious pluralism within family life, this is not without tension. For example, a mixed couple may be ostracised by some members of the extended family. Children of mixed marriages officially take the father’s religion. DFAT is not aware of any reports to suggest that either converts or those involved in mixed marriages are subject to any official discrimination. In cases where converts or those involved in mixed marriages have experienced societal discrimination in the form of harassment or ostracism, this is most likely to be the result of specific localised factors (such as a family’s socioeconomic standing or level of social/religious conservatism) rather than being systemic in nature.
I have had regard to a news article from 2013 provided to the Department by the applicants, that a Druze family harmed a Muslim man who married a Druze girl and I accept, based on the country information above, that a family’s social or religious conservatism could result in harassment, ostracism or other ill-treatment. Consequently, I accept that there may have been some tension between one of the first applicant’s brothers and some cousins because of the mixed marriage and conversion and that the first applicant’s extended family may have excluded the applicants from some family events such as a funeral and a wedding. I accept as plausible that one of the first applicant’s brothers or cousins may have said hurtful things to the applicant about the marriage but the applicant’s claims in this regard were lacking in detail. I do not accept that such treatment amounts to serious harm. Given the applicant’s behaviour in remaining in the area I do not accept that there was any genuine threat to the applicant’s life or that of his family. I do not accept that the first applicant’s father threatened them or sought to obtain custody of the children. The second applicant described them being in a relationship, the grandfather playing with his grandson and he and his wife assisting her father with his medication. I note that the grandfather is now deceased and that the children are living in Lebanon with the second applicant’s family. The second applicant reported at hearing that they are safe and attending school. This closeness including, the families living in relatively close proximity for 8 years without serious harm and the contact including caring for the first applicant’s father and the second applicant forming a business relationship with one of his wife’s brothers does not support that the applicants’ feared for their lives at the hands of the first applicant’s family and I do not accept that they did. Having regard to all of the above factors, I do not accept that the applicant faces a real chance of serious harm from the first applicant’s family because of his mixed marriage, his wife’s conversion or for any other reason including those set out below.
Hezbollah claims
In the hearing the applicant was asked about his work history, in particular he was asked about his work in Syria because in his protection visa application it states that he worked in Syria between 2006 and 2010 before he got married. When this was put to him, the applicant denied working in Syria. He stated that he fled to Syria in 2018 but he did not work there. This information was offered up in response to a question about his work history and had not been raised spontaneously. At this point in the hearing the applicant made a new claim which was not raised in the protection application, was not raised by the first applicant and which was not addressed in the protection visa decision. The new claim was that in 2018 there was a problem between Christians and Hezbollah. He was driving one of his work trucks through a Hezbollah checkpoint and he did not stop as he was fearful. He then hit one of their cars with his truck and they shot at him. After that he told a [Official] who works in the President’s palace and [relative]in who works in [an area]and they said he better leave for a while to avoid harm from Hezbollah. He then went to Syria for a month and stayed in a hotel in Damascus. He was asked if he had any problems on his return to Lebanon, he said no, his [relative] and the [Official] told him it was safe to go back but he had to try and stay local and he had to travel to Beirut by an indirect path to avoid his wife’s family. He said that his wife’s family were pro-Hezbollah because they were Druze and the situation between him and them became worse.
I have a number of concerns about the credibility of this new claim and these concerns were raised with the applicant during the hearing. The applicant’s account of this claim was lacking in detail, was not told in a compelling manner suggestive of lived experience and his claim developed on my questioning rather than being offered up spontaneously. Additionally, the claim was made some five years after the protection application with no good explanation for the delay, this also raises concerns about the veracity of the claim indicating that it may have been manufactured to enhance his protection claims at hearing. At the hearing, the applicant was asked why he did not stop at a Hezbollah checkpoint when driving his truck, he responded that he was a Christian and between 1982 and 1993 there were problems between Christians and Hezbollah so he did not stop for fear he would be harmed or killed. Despite being questioned further he did not explain what the problem was between Christians and Hezbollah in 2018. He did not indicate that Christians were at any particular risk of any harm from Hezbollah at check points when they were going about their everyday work. Given that he lived and worked in an area where there was a large Christian population and some 25 years had passed since the conflict he described, I did not find his explanation for not stopping at a checkpoint at all persuasive.
In order to better understand the claim, the applicant was asked why Hezbollah would be interested in him personally. He responded that it was because he hit one of their cars and did not stop and they shot at him. His explanation of hitting one of their cars was provided with limited detail or explanation as to how that occurred. I would have expected some expression of how this made him feel rather than a simplistic statement that he hit one of their cars and they shot at him. He did not indicate that he reported the shooting to the police or sought police protection. He did, however, go on to say that after that he told [the Official]who works in the President’s palace and [relative] in who works in [an area] and they said he better leave for a while to avoid harm from Hezbollah. He said he then went to Syria for a month. After further questioning he said that he stayed in a hotel in Damascus. He did not provide detail about that conversation with the General or the uncle or why he went to them for assistance. He did not provide any other expected information such as how his family stayed safe during that time or whether Hezbollah or his wife’s family had tried to find him at work or at home. I consider that if such a significant event occurred and the ramification was that the applicant had to leave his business, home and family for a month that his account of that would have been more compelling and detailed than it actually was.
The applicant was asked about how his wife’s family would know about this incident. He stated that the people on the checkpoint were her cousins. He had not offered this information in the initial account of the incident and he did not provide any further detail as to how he knew this, any more detail about who they were or whether they made contact with his wife’s family. When asked why he was able to continue to live in Lebanon safely after he returned from Syria he responded that he was under the protection of his uncle and a General and that they communicated with Hezbollah and provided him with security. It is unclear how this would have occurred and the applicant’s account of this was not sufficiently detailed to understand how this occurred, despite prompting for information.
The applicant was asked why he only raised this claim that day at the hearing and not in the protection application, or at any other time between 2018 and 2023. The applicant did not provide a satisfactory explanation. He merely responded that he was the one that had the problem and that is why he raised it. I consider that this is a serious claim and that if the applicant genuinely feared harm from Hezbollah such that he fled to Syria for a month that he would have raised that in the protection visa application or at some other stage with the Department.
For all the above reasons considered cumulatively, I do not find the applicant’s account of this new claim be credible. I prefer the protection application which stated that he worked in Syria prior to his marriage. I do not accept the applicant’s explanation for the delay in making the claim, I consider that the delay in making the claim, the limited detail provided by the applicant and the development of the claim only in response to questioning all lead me to conclude that this claim was manufactured in order to further the applicant’s protection claim after his wife and children had voluntarily returned to Lebanon. I do not accept that the applicant genuinely fears harm from Hezbollah or that he fears harm his wife’s family because of any incident with Hezbollah even when considered with his religion. Consequently, I do not accept that the applicant faces a real chance of harm from Hezbollah or his wife’s family because of any problems with Hezbollah.
Remaining claims
I have also had regard to the general references made in the evidence given by the second applicant and in the letter of support from his son about the war on the Lebanese border, difficult living conditions, the financial crisis which was exacerbated by the Beirut Port blast in August 2020, and political instability in Lebanon. The applicant did not explicitly make a claim to fear harm on this basis for any 5J reason. The applicant was given every opportunity at hearing to provide information about his claims, and I am not satisfied that there is any persuasive information before the Tribunal to suggest, and I do not accept, that these conditions, the generalised insecurity and the hardship which prevails in Lebanon would expose the applicant, to a real chance of persecution for any of the reasons in s 5J of the Act.
Protection assessment
I have not found the applicant’s claims to fear serious harm from his wife’s family or from Hezbollah to be credible. Having regard to the applicant’s claims individually and cumulatively, I find that there is no real chance the applicant will face a real chance of serious harm in Lebanon for the reason of his race, religion, nationality, political opinion or membership of any particular social group for any of the reasons claimed. I find that the applicant does not have a well-founded fear of being persecuted in the reasonably foreseeable future. I am satisfied that the applicant does not meet the requirements of the definition of refugee in s.5H(1) and the applicant does not meet s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) I have considered the alternative criterion in s 36(2)(aa).
As set out above, I have found that there is not a real chance that the applicant will face serious harm on the basis of any of his claims. Based on the same information, and for the reasons set out above, I am also not satisfied that there is a real risk that he would face significant harm.
I have accepted that the applicant’s marriage has caused some tension with the first applicant’s extended family and as such they were excluded from some family events and the applicant may have had some hurtful comments made to him. I do not consider that such treatment amounts to the death penalty; an arbitrary deprivation of life or torture. Further, there is no intention to inflict pain or suffering, severe pain or suffering or to cause extreme humiliation. I am not satisfied the applicant will face a real risk of significant harm as a consequence of his marriage and religion as set out in his claims.
I also note the applicant’s statements about the conditions in Lebanon as set out in remaining claims. 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. I am satisfied that any generalised insecurity, poor living conditions and other hardship referred to are faced by the population generally and not by the applicant personally. I find that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of generalised insecurity due to the political situation, neighbouring wars, difficult financial and living conditions, and any consequential hardship as set out in his claims.
There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
Conclusion
For the reasons given above, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted visas.
There is no suggestion that any of the applicants satisfy 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 applicants do not satisfy the criterion in s 36(2).
DECISION

The Tribunal affirms the decision not to grant the applicants’ protection visas.
Kylie Allen
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4846

18 December 2023

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