1926350 (Refugee)

1926350 (Refugee) [2024] AATA 3128 (7 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Katrina Feghali (MARN: 1174363)
CASE NUMBER:  1926350
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Wendy Banfield
DATE:7 May 2024
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 May 2024 at 4:35pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion and political opinion – uncommitted Shi’a Muslim opposed to Hezbollah, dominant in home area – approached to support organisation or join militia, then interrogated, beaten and threatened – country information – no interference with education or previous international travel – marriage in Australia, wife pregnant and application for partner visa in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 September 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 citizen of Lebanon, applied for the visa on 3 May 2018. The delegate refused to grant the visa as they were not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Lebanon, that there was a real risk the applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 20 September 2023 to give evidence and present arguments. The applicant is fluent in English and did not require the assistance of an interpreter during the hearing.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
Refugee criteria
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.
Complementary protection criteria
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.
Applicant’s identity and country of reference
The applicant stated in his application for a protection visa that he was born on [Date] in Lebanon. He provided a copy of his Lebanese passport to the Department. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
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.
Based on the documents provided by the applicant and accepted by the Department, the Tribunal finds the applicant is a citizen of Lebanon and as such his protection claim will be assessed against Lebanon as the country of reference and 'receiving country' respectively.
Claims for protection
The applicant submitted claims for protection when he made an application to the Department on 3 May 2018. The claims at the time of application were summarised in the Department’s reasons for decision dated 16 September 2019. The reasons were as follows:
·     The applicant was born on [Date] at [Village], Nabatieh, Lebanon.
·     The applicant was born a Shi’a Muslim, but he has not been committed member of his faith.
·     The applicant is firmly opposed to Hezbollah. As a Shi’a, he was expected to support Hezbollah politically or join their military wing. The vast majority of young men who hail from his village and the surrounding villages are members or supporters of Hezbollah. Approximately six Hezbollah members who hailed from his village were killed in the conflict in Syria.
·     In the past three years, the applicant has been approached on numerous occasions by recruiting agents of Hezbollah. Hezbollah has been increasingly putting pressure on young Shi’a men to join them, due to the heavy losses they have incurred in Syria.
·     The applicant is the only male left in the family who is of fighting age. His other brother is a member of the [Employer].
·     Hezbollah’s recruiting agents enticed him with a good job and other financial benefits if he were to join their military campaign in Syria. Due to his non-cooperation, the pressure escalated to threats and mistreatment by Hezbollah’s recruiters.
·     In mid-November 2017, the Hezbollah agents interrogated the applicant at his home. They accused him of being an Israeli agent simply because of his reluctance to support them. He was beaten, humiliated and threatened with further physical violence should his attitude towards Hezbollah not change. They also threatened that his activities would continue to be monitored. Although the applicant took previous threats seriously, this episode caused him to fear for his imminent safety and prompted him to travel abroad as soon as possible.
·     Hezbollah does not tolerate any form of political opposition and has the means and capacity to eliminate their political foes, particularly within the Shi’a community.
·     Because the applicant refused to support Hezbollah politically or join their military wing, he was falsely accused of being an Israeli collaborator, and he runs the risk of being further interrogated, monitored, physically harmed or kidnapped if he returns to Lebanon.
·     The applicant’s two friends [Mr A] and [Mr B] have been missing for the past two years. He is aware of the fact that before their disappearance they were approached by Hezbollah recruiting agents and refused to join the party. The applicant fears that if he had remained in Lebanon, he would have met the same fate.
·     Hezbollah also controls the employment sector amongst the Shi’a community. If the applicant were to seek employment with a Shi’a or even non-Shi’a company Hezbollah will exert pressure upon the potential Lebanese employer not to employ him.
·     The authorities are unable to provide him with protection. Hezbollah is more powerful than the government authorities and is considered to have exclusive control over the Shi’a community in Lebanon.
·     Relocation to another part of Lebanon would not be a practical solution as Hezbollah have agents throughout the country who are capable of tracking the applicant down and causing him serious physical harm.
The applicant provided the following written submissions to the Tribunal:
·     Department of Home Affairs notification and decision record dated 16 September 2019.
·     Lebanese passport biometric information.
·     Statutory declaration of the applicant dated 12 September 2023.
·     Marriage certificate dated [Date].
·     Immigration and Refugee Board of Canada Lebanon country information.
·     News reports and media articles regarding Lebanon and Hezbollah.
·     Statutory declaration of the applicant dated 10 October 2023.
·     Media reports about Hezbollah, Hamas, Israel, and Lebanon.
The applicant submitted information and evidence to the Department at the time of application which has been considered by the Tribunal. The submissions consisted of the following: a completed Application for a Protection Visa form; a statutory declaration by the applicant dated 1 May 2018, copies of the applicant’s Lebanese passport and his driver’s licence information.
The hearing
The applicant came to Australia [in] February 2018 holding a Subclass 600 Visitor visa that allowed him to remain in Australia for three months. He has an Australian citizen brother and some maternal relatives. The applicant’s mother and siblings are still living in Lebanon and his [brother] is in the [Employer]. The applicant confirmed he has applied for a Partner visa since he got married in Australia and his wife is expecting a baby in [Month] 2024.
The applicant had assistance when applying for a Protection visa. He confirmed he is relying on his original claims. The applicant was born in [Village], a village in the Nabatieh District of southern Lebanon and lived there before coming to Australia. The applicant holds a bachelor’s degree in [Subject] from his home country graduating in early 2017. According to the applicant he did not work in Lebanon due to his issues with Hezbollah. He claimed he was offered jobs such as [job task] in Syria or Lebanon or working for Hezbollah in [related job task], but he always refused. The applicant said he had been hoping to work as [an occupation 1] after graduation.
The Tribunal asked the applicant about his claims for protection and the situation where he lived in Lebanon. The applicant said he grew up with Hezbollah ideology and was surrounded by resistance groups and public images of martyrs. The applicant referred to the 2006 war between Lebanon and Israel, including the kidnapping of two Israeli soldiers. He said it was a provocative move by Hezbollah, it did not benefit anyone in Lebanon and just led to sanctions. The applicant said at his university there are Hezbollah student unions, charities, banks, and internships where students are offered reduced tuition fees but at the cost of joining the organisation. It could also mean speaking for them or joining their military wing.
The applicant said ninety percent of people where he lived support Hezbollah, particularly when there was conflict with Israel. However, the applicant claimed he thought of this as older people’s views. The Tribunal asked about the extent of Hezbollah control in his village. The applicant said Hezbollah controls everything, including health clinics where medical treatment is free if you support them. The Tribunal asked about [work sector] control in his area. The applicant explained the [work sector] that he had hoped to join and did apply to. He said he had an interview and was told he would need to get his issues with Hezbollah solved and then he would be offered a job. The applicant took this to mean he would need to support them. He said because he is from South Lebanon, he would not get a job with any opposing [work sector] organisation. In Australia the applicant works as [an occupation 2].
The applicant advised he fears a repeat of what happened to him in November 2017 if he returns to Lebanon. He claimed he would be stopped by Hezbollah members and asked why he did not join them. The applicant alleged two members of Hezbollah came to his parents’ home and assaulted and beat him. He said they wanted him to join them or at least stop speaking against them. The applicant said Hezbollah brainwash and influence kids with jihad. It was alleged the people who came to his house hit him and kicked him in the stomach and warned him his attitude needed to change. As to why Hezbollah would want him to join despite his lack of empathy with them, the applicant claimed every Shi’a man is expected to join and believe in their ideology.
According to the applicant his father was in the [Employer] and his brother is currently which means they cannot be involved in politics. He said his brother lives in Beirut not the village. The Tribunal asked if the applicant could live in Beirut. He said it would not make a difference because he could still be located. He said he thought about relocating and went to [Country], then when he returned, considered moving to a Sunni dominant coastal town but reconsidered because of a media personality who was jailed for opposing Hezbollah. It was put to him that he would not have the same profile, but he said he believed it could happen to him. The applicant said he could only live in Druze or Maronite areas, however, as a Shi’a Muslim he could not go there as he would not be welcome.
The applicant claims to fear the same threats and assaults if he returns to Lebanon after being away for six years. In addition, there are tensions between Lebanon and Israel. The Tribunal put to the applicant that DFAT country information indicates Hezbollah prefers to recruit people who are sympathetic. The applicant claimed such information comes from those in control of the country and it is Hezbollah who elects the leader. He discussed a recent leader of Lebanon who shook hands with Hezbollah and was President until recently.
The applicant discussed Iran’s support of Hezbollah and their activities which he said accounts for their strength. The Tribunal put to the applicant that he had been able to live in his village and go to university without incident until 2017. He was asked why Hezbollah would have targeted him then. He said he was first approached in 2015 and he did not know why there had been an escalation. The applicant said he applied for a passport and because he had travelled to [Country] in February 2017 Hezbollah may have thought he was leaving the country. The applicant said he booked a return ticket when he came to Australia in case there were any issues when he left Lebanon.
The Tribunal asked the applicant about friends and associates. He said a lot of people “forcibly” joined Hezbollah due to the money and incentives. He said he was aware of brothers who argued over support for Hezbollah, and both disappeared. Regarding protection from Lebanese authorities, the applicant claimed they do not act on reports or complaints against Hezbollah. He said in his village there are friendly relations between them, so there is no interference with Hezbollah. As an example, the applicant discussed the Port of Beirut explosion that occurred in 2020 due to a stored shipment of ammonium nitrate.
The applicant said he had never been arrested or detained in Lebanon. He denied he could relocate because it was claimed Hezbollah can use government agencies and has spies to locate people. The Tribunal asked why that would occur in his case when his views do not align with Hezbollah, and he does not want to join. The applicant claimed he feared for his life when he was in Lebanon but said now, he would be unable to “turn the other cheek” if he had to go back because he has nothing to lose, but he knows how it will end up. He said he never commented on social media in the past and feels safe in Australia but if he goes back, he will be in danger.
In Lebanon the applicant has his mother, a brother and sister as well as an aunt and [cousins]. Other relatives live in [Region] and Australia. The applicant said his mother and sister are safe at present because Hezbollah does not target women, and his brother is in the Lebanese [Employer]. The applicant confirmed his fears are based on his anti-Hezbollah political views. He said he would be more opposed if he had to return and would make his views known. When asked why the applicant said he would not just “cop it on the chin”. The applicant believes having been overseas for six years will lead to suspicions about him.
The Tribunal asked about the applicant’s claims that he was accused by Hezbollah of being an Israeli collaborator. The applicant said it was put to him during the visit in November 2017 and involved verbal threats. He said rumours are spread around the village and leads to the attention of the authorities. The applicant addressed his claims of not adhering to Shi’a Islam. He said he found inconsistencies in the religion and does not agree with certain practices which angered adherents. Although he was taught by his parents, the applicant said they were not very strictly religious.
The Tribunal put to the applicant that according to the Department’s decision, Hezbollah do not want recruits who are not committed and invited him to comment. The applicant said in 2016/2017 Hezbollah needed lots of people to fight in Syria because they have land and bases on the border. He claimed 14 and 15 years olds were brainwashed into fighting ISIS and were killed. The Tribunal noted the Canadian immigration board information that indicates Hezbollah has an arduous and difficult induction process and even those who join are not compelled to stay. The applicant said that might be the case sometimes but during conflict such as between Lebanon and Israel they are not particular. It was put to him that according to country information, Hezbollah do not generally interfere with individuals unless they are a threat. The applicant said that is not the case if you live in South Lebanon and referred the Tribunal to the written submissions he provided.
The Tribunal asked the applicant to comment on the lack of evidence he provided to the Department about the alleged assault by two Hezbollah members. The applicant agreed there were no witnesses, and he did not have medical treatment. He said he had a few bruises, but they do not do significant harm. The applicant claimed he did not tell his parents as he did not want to scare them. He said he was threatened with more extreme measures if his attitude did not change. According to the applicant, he opened the door, and one person pushed him back. He said they shouted at him about his failure to join Hezbollah and after he responded negatively, he was hit and punched.

The applicant finished university in early 2017. The alleged assault occurred [in] November 2017, and it was the same time he applied for a new passport to come to Australia. The applicant said his parents and brother in Australia were supporting him financially. The Tribunal asked about his father’s situation after retirement and he said he never had any trouble from Hezbollah, mainly due to his age. It was put to the applicant that he did not provide evidence of being an outspoken critic of Hezbollah or having a profile that would be of interest to them. The applicant agreed he had never posted anything online but talked in cafes. He did not want to get into trouble as he was planning to leave and seek protection in another country.
The Tribunal referred the applicant to the complimentary protection criteria and invited him to comment. He said he fears being arbitrarily killed. Regarding being a returnee from Australia, the applicant said many countries including Australia are considered Zionist by Hezbollah. It was put to him that he had been able to travel to [Country] without issue and obtain a new passport and travel to Australia. The Tribunal noted this indicated he was not being monitored and was not of interest to Hezbollah. The applicant said he was questioned by his own country about his plans when he went to [Country]. However, he was not questioned on his return, and he thought everything is good. When he was coming to Australia, he booked a return ticket and his brother in Australia was in Lebanon at the time and gave him guidance about where to apply.
The applicant addressed the issue of delay in applying to travel to Australia. He said it is a long process to obtain a visa and as a foreign Muslim there are a lot of checks carried out. According to the applicant he applied in November 2017 and his visa was granted in January 2018. However, he had to wait for his brother to return to Australia and send him some money before he could book his ticket. The applicant then booked a flight for [February] 2018.
In conclusion, the applicant expressed concern for his wife and child in Australia if he must return to Lebanon. He said he would want them to go with him but since his wife was born in Australia, she would not want to because she knows about his situation. The applicant said he wants to pursue the protection visa application because it was the main reason he came.
The representative was invited to make a submission. She said the applicant had addressed all the issues but indicated his wife and child would be in danger if he had to return to Lebanon.
Written submissions
The applicant submitted a statutory declaration dated 12 September 2023 reiterating his reliance on claims made at the time of application. He declared he fears being forcibly recruited by Hezbollah, being physically harmed if he refuses and having his activities monitored as a suspected Israeli agent. The applicant claimed to fear his or his family members being tortured or killed due to his unwillingness to join Hezbollah. The applicant states he could not relocate within Lebanon because of sectarian tensions between Shiites and Sunni, and the range of Hezbollah’s influence. He claims he would not be protected by Lebanese authorities because Hezbollah is more powerful.
In his statutory declaration of 10 October 2023, the applicant stated his fears of harm have increased due to hostilities between Israel and Hamas in Gaza.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant were returned to Lebanon he would be persecuted for one of those reasons. If not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Lebanon, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Assessment – refugee criteria
The Tribunal considered whether the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and whether there is a real chance he would be persecuted for one or more of those reasons. The applicant’s evidence is that he is a Shi’a Muslim who was born and raised in the village of [Village] in south Lebanon, an area where Hezbollah are active and influential. He attended university and graduated with a bachelor’s degree in communication arts. The applicant claims he spoke against Hezbollah to people he knew and in cafes although he did not post his opinions online. The applicant claims he has refused to work for Hezbollah or join the group and this has led to physical harm in the past. The applicant claimed he is seeking protection in Australia based on his political opinion.
The Tribunal accepts the following facts:
·     The applicant is a Shi’a Muslim who lived in Hezbollah controlled territory in Lebanon.
·     Hezbollah engages in the provision of health, welfare and other services and has widespread influence and support in local communities, including the applicant’s village.
·     The applicant encountered Hezbollah recruiters in his village and at university.
·     The applicant felt pressure to support Hezbollah because Shi’a Muslim men are expected to.
The applicant stated his fears are based on his experiences living in Lebanon and refusing to join or support Hezbollah. He gave evidence that in November 2017, two members of Hezbollah arrived at his residence while he was alone. He claimed they forcibly entered when he opened the door and questioned him about his failure to join Hezbollah. The applicant told the Tribunal he voiced his opposition to Hezbollah’s ideology, and this led to him being hit, punched, and threatened. The applicant claimed the Hezbollah visitors wanted him to join or “at least stop speaking against them”. The applicant declared he was accused of being an Israeli collaborator because of his opposition. The applicant confirmed there were no witnesses, and he did not tell his parents about the incident. He said he was bruised but did not need medical treatment. The applicant claims he was threatened with an escalation of violence if his attitude did not change. He submitted he will be at risk of serious harm from Hezbollah if he returns to Lebanon.
As discussed at the Tribunal hearing, country information, including that submitted by the applicant indicates Hezbollah does not forcibly recruit its members. Instead, Hezbollah uses enticements during membership drives that emphasises benefits including financial assistance, loans, and job placements.[1] The Immigration and Refugee Board of Canada report states that there was anecdotal evidence of forced recruiting during the Syria conflict, but this could not be corroborated. The applicant submitted media reports and articles about Hezbollah’s youth recruitment and training practices. It includes some anecdotal references to forced recruitment but primarily reports on Hezbollah’s indoctrination and training of young people from an early age.
[1] Canada: Immigration and Refugee Board of Canada, “Lebanon: Recruitment practices of Hezbollah, including forced recruitment, such as Shi’ite youth; consequences for those that refuse to join; availability of state protection (2013 – October 2015)”. 29 October 2015.
The Tribunal did not find the applicant’s account of being assaulted and threatened by Hezbollah members who appeared at his home in November 2017 to be credible. His description of the visit, the alleged assault and the threats said to have been made were vague and without the level of detail that would be expected. The applicant could not provide any reason why Hezbollah would approach him at his home at that time, when he had lived in the village all his life and attended university without incident. He confirmed he had not expressed his opposition to Hezbollah online and there is no evidence he was an active or particularly outspoken opponent. The applicant’s account is not consistent with independent country information that states Hezbollah recruits its members by training and indoctrinating children and young people[2] and by offering incentives and enticements to join.[3] Anecdotal evidence of Hezbollah attempting to force young people to join also does not align with the applicant’s claim of being visited at his home and assaulted. Individuals interviewed by the media refer to recruitment drives in villages where people are financially and psychologically pressured to get them to join Hezbollah.[4]
[2] The Tower, ‘Hezbollah Recruiting Children as Young as Eight as Its Next Generation of Terrorists’, 5 April 2016.
[3] The Arab Weekly, ‘With enticements and intimidation, Hezbollah recruits Lebanese youth’, 30 June 2020.
[4] The Arab Weekly, ‘With enticements and intimidation, Hezbollah recruits Lebanese youth’, 30 June 2020.
After assessing the applicant’s evidence to the Department and the Tribunal, the Tribunal does not accept the applicant was threatened or assaulted by members of Hezbollah, that he was accused of being an Israeli collaborator, or that he was monitored or blacklisted from employment of any kind.
The Tribunal considered whether there is a real chance the applicant would be persecuted in Lebanon due to his political opinion if he returns. The Tribunal notes the applicant to travelled to [Country] and returned to Lebanon. He was able to obtain a valid passport and leave the country despite Hezbollah having considerable range and influence. The Tribunal does not accept returning from Australia would result in him being viewed as an Israeli collaborator. According to the applicant, his brother who lives in Australia returned to Lebanon and assisted with his departure without incident. This does not support the applicant’s claims that being a returnee from a Western country would put him in danger.
During the Tribunal hearing the applicant declared that although he feared for his life when he was in Lebanon, if he returned, he would be unable to “turn the other cheek” because he would have nothing to lose. The applicant did not explain what he meant by his comment, but the Tribunal does not accept the applicant would voluntarily put himself in danger. There is no evidence he was an outspoken opponent of Hezbollah in the past or that he had, or has currently, a profile that would lead him to be of interest. The applicant is an educated and informed individual who has insight into Hezbollah and understands the political climate in Lebanon. The Tribunal is not satisfied the applicant would engage in behaviour that would expose him to a real chance of persecution.
The Tribunal does not accept the applicant will be forcibly recruited by Hezbollah if he returns to Lebanon, or that he will be physically harmed if he refuses. The Tribunal is not satisfied he will have his activities monitored as a returnee from Australia, or as a suspected Israeli agent. The Tribunal is not satisfied there is a real chance the applicant would be persecuted due to his actual or imputed political opinion.
In his statutory declaration of 10 October 2023, the applicant claimed his fears have been exacerbated by Hezbollah’s involvement in the war between Israel and Hamas. He stated he fears retaliation by Israel that will result in him being forcibly recruited by Hezbollah, accused of being an Israeli collaborator if he refuses or killed as a traitor. The applicant declared he does not support Hezbollah or wish to serve with them and does not want to place his family at risk of harm because of his unwillingness. The applicant submitted news stories that report Hezbollah had exchanged fire with Israel in support of Hamas militants in Gaza in October 2023[5] and may intervene in the conflict.[6] However, the reports also indicate that popular opinion in Lebanon is against an escalation of conflict with Israel.[7] Recent reports indicate Iran does not support Hezbollah’s involvement in the Israel/Gaza war. In addition, reports suggest Hezbollah does it have the financial means, the strategic capability, or the backing of its supporters to escalate the conflict from Lebanon.[8]
[5] Reuters, ‘Hezbollah, Hamas claim attacks on Israel from Lebanon’, 11 October 2023.
[6] Al Jazeera, ‘Palestinians in Lebanon ready to fight Israel, if Hezbollah helps them’, 11 October 2023.
[7] Al Jazeera, ‘Palestinians in Lebanon ready to fight Israel, if Hezbollah helps them’, 11 October 2023 p.5/9.
[8] Chatham House, ‘The Gaza war is testing Hezbollah’s strategic capability’, 28 February 2024.
The Tribunal does not accept the applicant’s claims that he was harmed by members of Hezbollah in the past or that he will be seriously harmed in future. Independent media reports, including those provided by the applicant suggest it is unlikely Hezbollah will become fully involved in a war with Israel. The applicant told the Tribunal his mother and sister still live in his home country, and his brother is in the [Employer]. His other relatives are an aunt and [cousins]. The applicant explained his family have not suffered harm in the past because Hezbollah does not target women. The Tribunal finds there is no evidence to indicate they would be at risk of harm in future by the applicant declining to join Hezbollah.
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).
Assessment – complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. ‘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.
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.[9] The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
[9] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
The Tribunal considered if there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if he is removed from Australia to Lebanon. The applicant claims to fear being harmed by Hezbollah for his refusal to join them or support their cause. He claims his risk has increased since Hezbollah took some military action against Israel in support of Hamas and the Palestinians in Gaza. The applicant alleges he was assaulted and threatened by members in the past and would be again if he returns to Lebanon from Australia. During the Tribunal hearing the applicant said he fears being arbitrarily deprived of his life if he returns.
The Tribunal assessed the applicant’s claims that he was the victim of an assault by members of Hezbollah who visited him at home. After assessing his oral evidence, and independent evidence regarding Hezbollah recruitment practices, the Tribunal is not persuaded the applicant became the target of Hezbollah attention due to his refusal to join them, or because he did not support their cause and had spoken in opposition. The Tribunal is not satisfied he was harmed by Hezbollah members as he claims. The Tribunal does not accept the applicant was accused of being an Israeli collaborator or that he has a profile that led to him being under surveillance by Hezbollah.
Regarding the applicant’s claims that he is at real risk of significant harm in future if he returns to his home country, the Tribunal notes the applicant was free to leave Lebanon to visit [Country] and Australia. This indicates he was not of interest to Hezbollah at the time. The applicant’s brother who lives in Australia was able to return to help him with his departure. This is not consistent with the applicant’s claim that he would be targeted as a returnee from a Western country and would be accused of being an Israeli collaborator. The Tribunal also considered that the applicant lived in his village and attended university without incident in the past. While he would have experienced some pressure to join Hezbollah and may in future, the Tribunal is not satisfied the applicant will be forced to join Hezbollah if he returns to Lebanon or that he will be killed or significantly harmed if he refuses. The Tribunal is not satisfied the applicant has been an outspoken opponent of Hezbollah or that he would be in future.
Based on the evidence provided the Tribunal is not satisfied the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he returns to Lebanon. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wendy Banfield
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.
…

[2024] AATA 3128

7 May 2024

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