1926687 (Refugee)

1926687 (Refugee) [2024] AATA 4479 (8 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Katrina Feghali (MARN: 1174363)
CASE NUMBER:  1926687
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Suseela Durvasula
DATE:8 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 October 2024 at 10:10am
CATCHWORDS
REFUGEE – Protection Visa – Lebanon – religion – Sunni Muslim – particular social group – abused women – mistreated by family – lack of adequate medical care – significant physical and mental health issues – compassionate circumstances regarding age and health –Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 417, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 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 16 June 2017. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 20 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review.
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). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance, if the applicant returns to Lebanon, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Lebanon, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a [age]-year-old citizen of Lebanon who was born in [Town 1][Tripoli], in the north of Lebanon.
In her protection visa application, she provided the following biographical details:
·     She got married in 1967 and divorced in 2012. Her ex-husband is deceased.
·     She has 3 sons [and] one daughter [who] live in Australia and are Australia citizens.
·     She has 2 sons ([Mr B] and [Mr C]) and one daughter ([Ms D]) who all live in [Town 1], Tripoli, Lebanon.
·     Her other family members in Lebanon include 4 brothers and 3 sisters, who all live in [Town 1], Tripoli.
·     Her religion is Sunni Muslim.
·     She currently lives with her son, [Mr A], in Sydney.
·     In Lebanon she lived in [Town 1], Tripoli from April 2008 to May 2017. Prior to that, she lived at [Area 1], Tripoli from 1967 to April 2008.
·     She completed 9 years of schooling. She does not list any employment history.
·     The applicant arrived in Australia on [date] May 2017 on a visitor visa that was issued on 24 April 2017.
The applicant has previously travelled to Australia on visitor visas on the following occasions: [date] November 1998 to [date] March 1999, [date] March 2005 to [date] August 2005, [date] March 2007 to [date] September 2007, [date] June 2010 to [date] June 2011 and [date] April 2016 to [date] July 2016. She most recently arrived on [date] May 2017 on a visitor visa, which ceased on [date] August 2017. This immigration history is set out in the delegate’s decision record, which was provided to the Tribunal for the purpose of this review.
Claims – protection visa application
In a statement provided with her protection visa application, dated 14 June 2017, the applicant sets out her claims as follows:
·     She claims persecution on the basis of belonging to a particular social group – being abused women. She also relies on complementary protection for assessment of her claims.
·     She is divorced and her ex-husband passed away 2 years ago, in 2015 and she divorced him before that. After the divorce, she had been living with her adult sons and daughter.
·     Her children in Australia send her money so her children in Lebanon can look after her. However, her children in Lebanon have not been looking after and deprive her of the money her sons in Australia send to her.
·     The applicant speaks of being mistreated; humiliated; treated with cruelty; deprived of adequate food, clothing and medical care; and physically abused and threatened by her children, her daughter’s husband and her daughters-in-law.
·     She has chronic arthritis and is in need of ongoing medical attention.
·     If she returns to Lebanon, she will be forced to live with her in-laws who have physically abused her and threatened her in the past.
·     Her children in Australia have only recently become aware of the abuse and do not want to send her back to Lebanon.
·     The Lebanese authorities would not intervene in family-related matters.
The applicant was interviewed by the delegate on 9 September 2019. The Tribunal has listened to a recording of the interview.
Evidence provided to the Tribunal
In a statutory declaration to the Tribunal dated 9 September 2024, the applicant states the following:
·     She has one son ([Mr B]) who lives in Lebanon. She has been estranged from his family and cannot rely on him for any form of support.
·     She has one daughter ([Ms D]) who currently lives in [Country 1].
·     She has one step-child with whom she has no contact.
·     Her son, [Mr C], passed away on 31 March 2024 after sustaining injuries in a car accident.
·     She fears returning to Lebanon as she has been mistreated by her family in the past and is unable to obtain care such as food, clothing and medical care.
·     She has multiple medical issues that require physical, financial and mental support. Her health has deteriorated since she arrived in Australia.
·     She fears that if she returns to Lebanon she would be deprived of adequate day-to-day physical support and medical care.
·     She will be an elderly woman living on her own with no male protection.
·     Given the current crisis in Lebanon, medical care is expensive and she will not be able to obtain the required medical care and medications for her conditions.
·     In addition, she fears that the current Israel-Gaza conflict will spill into Lebanon due to Hezbollah’s involvement.
In a statutory declaration provided to the Tribunal, dated 9 September 2024, the applicant’s son, [Mr A], states that the applicant lives with him in Australia. Her health has severely deteriorated since her arrival in Australia. He and his wife have been caring for her. She has multiple medical issues (including vertigo and back pain) and cannot obtain relevant medical treatment or medication in Lebanon. She requires a full-time carer. Lebanon has a dysfunctional health care system to cater for the needs of the elderly. She cannot travel to medical appointments on her own without male support. She cannot rely on his brother or his wife in Lebanon as they subjected her to abuse in the past. He speaks generally of the financial and economic crisis in Lebanon.
The applicant has also provided:
·     a death certificate for her son, [Mr C], stating that he passed away on 31 March 2024 following a car accident, and an account for his hospital stay;
·     a family register showing that the applicant divorced her husband and he passed away on 21 June 2015;
·     a letter from her general practitioner dated 24 August 2024, stating that the applicant suffers from major depressive disorder (following her son’s death), osteoporosis, difficulty walking/standing due to back pain and hypertension; and
·     a health summary sheet detailing the applicant’s medical history and current medications.
Evidence at hearing
At the hearing, the applicant gave evidence about her family’s current circumstances. Her son, [Mr B], is her only child currently in Lebanon. He is married and has 4 children. He lives in a rented apartment with 2 bedrooms. He works with his [uncle]. She is in regular contact with him and speaks to him every week. She has a good relationship with him.
Her son, [Mr C], passed away in March 2024. He used to work [and] also lived in the Tripoli area. She had a good relationship with him.
Her daughter, [Ms D], moved to [Country 1] with her family about 3 years ago. The applicant is in regular contact with her daughter and has a good relationship with her.
The applicant also has 2 sisters and 3 brothers in Lebanon. They all live in [Town 1]. She has occasional contact with her brothers and speaks to them on the phone.
She divorced her husband in approximately 2009. She cannot remember when he left the home and when they separated - it may have been around 1990 or later. When she came to Australia in 1998, her husband had already left the house at that time. After the separation, the applicant maintained her own rental accommodation in [Area 1] until 2008, but she moved back and forth between staying at her own place and with family members - namely her brothers and her 2 sons.
After 2008, she no longer had her own rental accommodation, so she moved between staying with her brothers and her 2 sons, [Mr B] and [Mr C]. At all the places she stayed, she had adequate food, clothing and shelter. She did not have her own room as the apartments were small, but she had her own bed. Her 3 sons in Australia would directly send her about AUD300 per [month]. She gave some of that money to the families she stayed with and they would buy food for the whole family and they would eat together. She had enough food to eat.
The applicant stated she usually only stayed a few days with each family member. She would often stay with [Mr C] on weekends, then move to her brothers’ places. She also stayed with [Mr B], but not for long, as his children were young and she did not want to be a burden on them. She did not want to stay with her daughter as it was not culturally appropriate with her daughter’s husband at home. When asked why she did not stay longer with any one family member, she stated she did not want to be a financial burden on them. In Lebanon, people can barely survive to support themselves. They do not welcome having someone who is not part of the immediate family as it is an extra burden. When asked if there was any other reason why she moved house so often, the applicant stated there was no other reason.
When asked why she could not return to Lebanon and what she feared would happen to her, the applicant stated that she had no house to stay in. The house where she used to stay is gone. There is no life there. When asked what specifically she feared, the applicant stated, ‘to go back to what and where?’ When asked if any person in particular would cause her harm, the applicant stated that no-one in particular would harm her. As she had come from Australia, the community in general may have the perception that she has a lot of money and may try to take that from her. When asked if there was any other reason she feared harm, the applicant stated that she has 4 children in Australia.
The applicant stated that she could not remember what she had said in her protection visa application or how it was prepared. She could not remember preparing the statutory declarations dated 2017 and 2024 that set out her claims, or the content of those documents.
The Tribunal referred the applicant to statements made in her previous statutory declarations, where she had claimed she fears returning to Lebanon as she had been mistreated by her family in the past. The Tribunal asked her what she meant by this and if she could provide more details. The applicant stated that they have no respect and want you to leave. When again asked for more detail, the applicant stated that her sons did not physically hurt her. [Mr B]’s wife did not hurt or abuse her. His wife has hip problems and herself needs someone to take care of her.
The applicant claimed the main perpetrator of the abuse was [Mr C]’s wife. She had spoken to the applicant in a way that indicated the applicant should leave. When asked for more detail of the claimed abuse, the applicant stated that if she lay on the bed, [Mr C]’s wife would ask her to get up from it as it was needed for the child or she would take the blanket from her. She had to go to hospital a couple of times after [Mr C]’s wife hit her. The Tribunal asked the applicant to provide more information about these incidents, but the applicant stated she could not remember what happened. She remembers once she woke up and started screaming and they called an ambulance. She claimed that [Mr C]’s wife had done something to her. She cannot remember when this incident occurred and she was unable to provide further details about what [Mr C]’s wife had allegedly done or what injuries had been caused to her.
The Tribunal discussed with the applicant its concerns that she could only provide limited information about the alleged abuse and that she had not raised these claims earlier in the hearing when asked what harm she had experienced in Lebanon, or with the Department. The applicant stated that she could not remember the details and she was not able to talk about it earlier.
She did not mention the abuse to her children in Australia when she came to visit them between 1998 and 2016. The Tribunal discussed its concerns that that the applicant did not raise the alleged abuse with her children, which may indicate that she had not experienced harm in Lebanon from her daughter-in-law. The applicant stated she did not want to cause tension between the siblings.
The Tribunal put to the applicant its concerns that she returned to Lebanon several times despite her claim that she had experienced harm from her daughter-in-law. This may indicate that she did not fear serious harm. The applicant responded that she had to go back as her visas would run out. She felt ashamed to mention the alleged abuse so she kept going back.
The applicant stated that she had spoken to [Mr C]’s wife on the phone after [Mr C] had passed away and they consoled each other over his loss. If she returned to Lebanon, she would not have any further contact with [Mr C]’s wife. When asked why she would not have contact, the applicant stated that she cannot stay with her after [Mr C] passed away as it would not be culturally appropriate. When asked if she still feared harm from her daughter-in-law, she stated that she ‘cannot trust’. She did not state that [Mr C]’s wife had threatened to harm her if she returned or that she specifically feared [Mr C]’s wife.
When asked if she could stay with her son, [Mr B], if she returned to Lebanon, the applicant stated that she could not as his wife is sick and has pain in her hips and needs care herself. Her siblings would ‘show her an unwelcoming face’ for financial reasons. She does not want to stay with anyone in Lebanon and life is increasingly difficult.
The Tribunal discussed with the applicant her claims to fear harm due to lack of adequate medical care, the economic situation in Lebanon and the general security situation in Lebanon, and that there may not be a real chance of serious harm or a real risk of significant harm. The Tribunal explained that even if it accepted there was a real chance of serious harm, the harm may not be for any of the reasons set out under s 5J(1)(a) of the Act. In addition, there may not be the element of intention required for the complementary protection provisions and the risks may be those faced by the population generally.
The applicant responded that she was not involved in any political activities. She stated that ‘God only knows the intention’ and given her age, she cannot go back to Lebanon.
In his oral evidence, the applicant’s son told the Tribunal that he speaks to his brother [Mr B] occasionally. There is no-one to look after his mother if she returns to Lebanon and she cannot receive adequate medical care. Based on what his mother has said, he understands that [Mr C]’s wife was mean to his mother and did not speak to her nicely and yelled at her.
FINDINGS AND REASONS
Country of nationality
The applicant has provided a copy of her passport to the Department and Tribunal, which shows she is a citizen of Lebanon. The Tribunal finds, based on the applicant’s passport, that she is a national of Lebanon and has assessed her claims on this basis.
Summary of applicant’s clams

The applicant claims that she cannot return to Lebanon as she does not have her own home to live in and she would not receive adequate medical care or financial support. She claims she does not want to live with her son or her siblings as they have financial and economic problems and would not be able to support her. She would prefer to stay in Australia with her 4 children where she would receive better support and medical care. She also stated that she does not want to return to Lebanon due to the economic crisis and the volatile security situation. Later in the hearing, the applicant also claimed that in the past, she had experienced some physical and verbal abuse from [Mr C]’s wife, her daughter-in-law.
Claims of past harm from daughter-in-law and other family members
The applicant claims she experienced past harm from [Mr C]’s wife, her daughter-in-law, when she stayed with her. She claims that [Mr C]’s wife hit her and she had to go to hospital twice as a result. The Tribunal does not accept the applicant’s claim that [Mr C]’s wife was physically abusive towards her for the reasons set out below.
Firstly, the applicant could only provide very limited details about the claimed incidents of physical abuse. She could not explain when the incident occurred, what her injuries were, or even confirm that [Mr C]’s wife was the perpetrator. The Tribunal is mindful that victims of trauma and abuse may not be able to recall all details about alleged incidents of harm. In this case, however, the applicant could only provide very limited information about what [Mr C]’s wife had allegedly done to her and what impact that had on her.
Secondly, the applicant did not mention the claimed abuse to her children in Australia, despite visiting them 5 times between 1998 and 2016. She also returned to Lebanon on 5 occasions between 1998 and 2016, despite her claim that she feared harm from her daughter-in-law. The Tribunal has considered her explanation that she did not want to cause tension between the siblings and felt ashamed to mention the alleged abuse earlier. The Tribunal is mindful that some victims of abuse may be reluctant to disclose due to shame or embarrassment. The Tribunal is also mindful of the applicant’s age and her conservative religious background. However, in this case, these factors do not explain, to the Tribunal’s satisfaction, why the applicant did not discuss her reluctance to return to Lebanon earlier with her children, without necessarily revealing the full details of any harm she had experienced, given the number of times she visited Australia and her close relationship with her children.
Thirdly, the Tribunal has concerns that the applicant only raised the claims about her daughter-in-law at a very late stage in the hearing, after being prompted by the Tribunal. Prior to this, when asked what harm she feared, the applicant did not mention that she feared harm from any particular family members. She stated that no-one in particular would harm her. Her main concerns were that she did not have a house to stay in, there is no life in Lebanon, and her 4 children were in Australia. As stated above, the Tribunal accepts that some victims of trauma may be reluctant to discuss abuse due to shame or embarrassment. In this case, however, the Tribunal gave the applicant several opportunities to describe any harm she had experienced from family members, but she did not do so until the Tribunal prompted her about the claims of abuse in her written statement. This leads the Tribunal to not accept her claims that she had experienced physical abuse at the hands of her daughter-in-law ([Mr C]’s wife).
At the hearing, the applicant did not claim that she experienced harm from her son [Mr C], her son [Mr B], [Mr B]’s wife or any other family members in Lebanon. The Tribunal accepts there may have been tension and arguments due to the cramped living conditions and the difficult financial circumstances of the family members. The Tribunal accepts that it was not the applicant’s preference to live with different family members for short periods. Nevertheless, the family members allowed her to continue staying with them for several years after her divorce.
There is no suggestion that the applicant was deprived of adequate food, clothing and shelter when she stayed with the family members or was otherwise mistreated. Her own evidence was that she had adequate food, a place to sleep and adequate clothing. She used some of the money her children in Australia sent her to meet her own basic needs. At the hearing she did not claim the family members took her money from her. The money was sent to her separately and she chose to use the money to contribute to household expenses for the whole family.
Evidence of applicant’s son
The Tribunal has considered the evidence of the applicant’s son, [Mr A], and whether that supports her claims of past abuse by her daughter-in-law or other family members. In his statutory declaration, the applicant’s son claims that the applicant cannot rely on his brother ([Mr B]) or his wife, as they subjected her to abuse in the past. The Tribunal does not accept that the applicant was abused by [Mr B], or his wife. At the hearing, the applicant did not make this claim and stated that she had a good relationship with [Mr B] and sympathy for his wife who has medical problems.
The applicant’s son also stated that he believed [Mr C]’s wife was mean to his mother and did not speak to her nicely and yelled at her. The Tribunal places less weight on this evidence given that her son did not directly witness any encounters between the applicant and [Mr C]’s wife and was relying on the applicant’s account. In addition, this evidence does not overcome the Tribunal’s concerns about other aspects of the applicant’s evidence, set out above. As stated, the Tribunal has accepted that there may have been arguments and tension between the applicant and [Mr C]’s wife due to their strained financial circumstances and cramped living conditions, but has not accepted that this tension resulted in abuse amounting to serious harm.
Claims in the applicant’s written statements
In her 14 June 2017 written statement provided with her protection visa application, the applicant claims she was mistreated, humiliated, treated with cruelty, deprived of adequate food, clothing and medical care, and physically abused and threatened by her children, her daughter’s husband and her daughters-in-law. In her statement dated 9 September 2024, the applicant speaks of being estranged from [Mr B]’s family and fearing returning to Lebanon due to past mistreatment by her family members.
The Tribunal has several concerns with the claims in these written statements. First, the applicant had no recollection of preparing these 2 statutory declarations or their contents. At the hearing, she could not remember anything that was written in these documents. This raises concerns that the words contained in the statement are not her actual claims.
Second, the written statements do not accord with the applicant’s oral evidence at the hearing. For example, the applicant stated she is not estranged from [Mr B]’s family and that [Mr B]’s wife had not mistreated her. She contacts her son on a regular basis and has sympathy for his wife who has a hip problem. She did not claim that she had been deprived of adequate food, clothing, medical care and shelter in Lebanon. She stated that her children in Australia sent her enough money for her basic needs. She did not claim that her daughter’s husband has mistreated her. She stated that she had never actually lived with her daughter. As the Tribunal could speak directly to the applicant through an interpreter, the Tribunal prefers her oral evidence at the hearing to the written statements, where there is an inconsistency. The Tribunal considers that the written statements have been exaggerated for the purpose of the protection visa application.
Past harm claims – summary
For the reasons set out above, the Tribunal does not accept that the applicant experienced abuse from [Mr C]’s wife or from her other family members in Lebanon. The Tribunal accepts there may have been some tension and arguments between the applicant and [Mr C]’s wife and her other family members. This seems plausible, given the cramped living conditions and difficult financial circumstances of her family members. The Tribunal accepts the applicant may not have felt comfortable living with different family members, rather than in her own home and did not want to be a burden them. The Tribunal does not accept that any of these factors amount to ‘serious harm’ as that term is defined in s 5J(1)(a) of the Act. Noting that what constitutes serious harm is not limited to the examples in s 5J(5), the Tribunal is not satisfied the applicant feared serious harm, having considered the evidence as a whole.
Is there a real chance of serious harm from family members if the applicant returns to Lebanon?
The Tribunal must now consider whether the applicant faces a real chance of serious harm from her family members, now, or in the reasonably foreseeable future, if she returns to Lebanon.
The Tribunal does not accept the applicant would face future harm from [Mr C]’s wife if she returned to Lebanon. Firstly, the Tribunal has not accepted that the applicant was harmed by [Mr C]’s wife when she was in Lebanon. Secondly, the applicant stated that she would not choose to live with [Mr C]’s wife. The Tribunal finds she would not make this choice due to fear of persecution, but because it would not be culturally appropriate, and her
daughter-in-law could not afford to support her after her son passed away. Thirdly, the applicant did not claim that [Mr C]’s wife had threatened to harm her or that she feared harm from [Mr C]’s wife if she returned to Lebanon. Her main reason for not wanting to return to Lebanon was financial, lack of adequate medical care and the current security situation.
The Tribunal has found that the applicant did not experience past harm from her other family members and does not accept that she would experience harm from her family members if she returned to Lebanon. The Tribunal finds that if the applicant returned to Lebanon she could live with her son, [Mr B]. The applicant indicated that she has a good relationship with [Mr B] and she is sympathetic to his wife’s medical condition. The Tribunal finds she would live in [Town 1] in the north of Lebanon, near Tripoli. This is the area where she lived most of her life in Lebanon and where her siblings also live. While the applicant’s accommodation in Lebanon may not be as comfortable as what she is used to in Australia, the Tribunal does not accept the applicant will be homeless, deprived of shelter and left on her own if she has to return to Lebanon. [Mr B] is employed and operates his own business. Her children in Australia can continue to support her financially as they have done in the past.
For these reasons, the Tribunal does not accept there is a real chance the applicant will face serious harm from her family members, if she returns to Lebanon, now or in the reasonably foreseeable future. For these reasons, the Tribunal also does not accept there is a real risk the applicant will face significant harm from her family members as a necessary and foreseeable consequence of being removed from Australia to Lebanon.
Claim of harm due to lack of adequate medical care
The Tribunal accepts the applicant is a [age]-year-old woman with multiple medical issues that require medical care and medication. This is supported by the medical evidence from her general practitioner and the health summary sheet. This indicates the applicant has major depressive disorder (following her son’s death), osteoporosis, and difficulty walking/standing due to back pain and hypertension.
The independent country information indicates that Lebanon’s healthcare system is overwhelmed by the multiple crises affecting the country. DFAT reports that:
The Lebanese health system is a mix of private and public services. The system has been badly affected by the recent economic crisis. International media reported that it was ‘on the brink of collapse’ in January 2022, noting an outflux of doctors and nurses, as well as widespread corruption. Because of the economic crisis, many Lebanese who previously had private health insurance can no longer afford it and are relying on the public system. The economic crisis has affected supply chains for pharmaceuticals and basic medical supplies, which are often unavailable. According to Bertelsmann Stiftung, about half of the Lebanese population cannot access healthcare. Even those who can access healthcare are not always able to access medicines, which are either unavailable or very expensive.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report Lebanon (26 June 2023) at 2.15
The economic crisis has put additional strain on an already poor public healthcare system, with many Lebanese now unable to afford private healthcare, and many unable to afford preventative healthcare.[2] Human rights reports concur that the crises have devastated the healthcare sector, with shortages of medicines and medical supplies leading to deaths, fuel and electricity shortages leaving hospitals permanently closed or ceasing operations, and declining salary values triggering a mass exodus of doctors and nurses.[3] The escalating conflict on the southern border with Israel could further impact the healthcare sector.[4]
[2] Direct Relief, 'The Beirut Blast Left Lebanon’s Health System Badly Shaken', Direct Relief (13 October 2020) Narharnet, 'Abiad Says Patients' Inability to Afford Treatment is Growing' (06 May 2021)
[3] Amnesty International, 'Amnesty International Report 2021/22: The State of the World's Human Rights' (29 March 2022) p 230; Human Rights Watch, 'Human Rights Watch World Report 2023' (12 January 2023), pp 379-380; Olivier De Schutter, ‘Visit to Lebanon. Report of the Special Rapporteur on extreme poverty and human rights’, United Nations Human Rights Council (11 April 2022)
[4] Reuters, 'Lebanon's struggling hospitals could collapse if war escalates, doctors fear' (16 November 2023) Reuters, 'Red Cross 'concerned' for south Lebanon's hospitals in case of escalation' (7 March 2024)
Based on the above country information, the Tribunal accepts there is a real chance of serious harm to the applicant, based on her particular circumstances of needing regular medical care and medications, and the fact that the Lebanese health care system is under-resourced and in crisis.
Is the claimed harm for a refugee reason?
Under s 5J of the Act, a person’s fear of persecution must be for reasons of their race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a)). One or more of these reasons must be the essential and significant reason or reasons for the persecution (s 5J(4)(a)), which must also involve systematic and discriminatory conduct (s 5J(4)(c)).
The evidence before the Tribunal does not indicate that any reason in s 5J(1)(a) is the essential and significant reason for harm the applicant might face as a result of being unable to access appropriate health care and medication. There is no suggestion that the applicant’s race, religion, nationality or political opinion, whether imputed or expressed, are the essential and significant reasons for the difficulties she might encounter.
In her protection visa claims, the applicant claims persecution on the basis of belonging to a particular social group, being abused women. Under s 5L(d) of the Act, a particular social group cannot be defined by reference to the persecution suffered. The Tribunal does not consider that it would be the applicant’s membership of any particular social group, including women in Lebanon, single or widowed women in Lebanon, elderly persons, persons with medical conditions in Lebanon, any combination of these groups, or any other particular social group arising on the face of the evidence, which would be the essential and significant reason for the position she might find herself in Lebanon. The applicant’s likely predicament would be essentially due to her age and her health.
For these reasons, the Tribunal does not accept there is a real chance that the applicant would face persecution in Lebanon due to lack of adequate medical care for the essential and significant reason of her race, religion, nationality, political opinion or membership of a particular social group. Therefore, she does not meet s 5J(1)(a) of the Act.
Claim to fear harm due to economic crisis
The applicant claims that she cannot return to Lebanon due to the economic crisis.
There is no dispute that Lebanon continues to experience a severe economic crisis, commonly reported to be one of the worst economic crises in history.[5] DFAT reports that Lebanon is experiencing severe economic depression. Supply of basic goods including medicines, food and fuel is unpredictable, and they are sometimes rationed. Subsidies that were applied to these goods were mostly lifted as the economic crisis deepened and many Lebanese who relied on subsidies have been left without access to these goods.^[6]
[5] Olivier De Schutter, ‘Visit to Lebanon. Report of the Special Rapporteur on extreme poverty and human rights’, United Nations Human Rights Council (11 April 2022) United Nations High Commissioner for Refugees, 'In Focus: Women, Girls, Men and Boys with Disabilities in Lebanon' (28 July 2023) p 2,
[6] DFAT Country Information Report Lebanon at 2.7 and 2.9
The Tribunal has found that if the applicant were to return to Lebanon, she would be able to live with her son, [Mr B], who is employed and operates his own business. She would be financially supported by her children in Australia. As discussed with the applicant at the hearing, while her accommodation in Lebanon may not be as comfortable as that which she is used to in Australia, the Tribunal does not accept the applicant will be homeless or deprived of food, clothing or shelter. The Tribunal does not accept her claim that strangers in the community will try to take her money from her as she has come from Australia. The Tribunal considers the applicant will largely remain in the home due to her age and medical conditions and will not be mixing widely with strangers in the community.
The Tribunal has considered the applicant’s response that she cannot return due to her age and medical conditions. The Tribunal does not accept the applicant would experience significant economic hardship or be denied basic services that would threaten her capacity to exist within the meaning of s 5J(5)(d) or s 5J(5)(e) of the Act. While the applicant’s financial circumstances and standard of living may not be the same in Lebanon as they are in Australia, the Tribunal is not satisfied that this amounts to serious harm. Noting that what constitutes serious harm is not limited to the examples in s 5J(5), the Tribunal is not satisfied there is a real chance of serious harm for economic reasons, having considered the evidence as a whole.
Claim to fear harm due to security situation in Lebanon

The applicant claims that she cannot return to Lebanon due to the deteriorating security situation in Lebanon caused by the current conflict between Israel and Hezbollah in South Lebanon. In support of this claim, the applicant’s representative has submitted country information regarding the current conflict.
The Tribunal has considered the country advice, including that provided by the representative, about the current conflict. The Tribunal accepts there is intensifying conflict between Israel and Hezbollah on Lebanon’s southern border and in parts of Beirut.[7] The Tribunal notes travel advice on the DFAT website which advises Australians not to travel to Lebanon due to the volatile security situation and the risk that it may deteriorate further.[8]
[7] BBC, ‘Israeli air strikes kill 492 people in Lebanon’ (24 September 2024)
[8] DFAT, Lebanon Travel Advice & Safety | Smartraveller (updated 21 September 2024)
Despite the current situation, the Tribunal has found that if the applicant returned to Lebanon, she would return to [Town 1], near Tripoli in the north of Lebanon, an area not under Hezbollah control[9] and far from the conflict zone. Areas targeted in the Israel-Hezbollah conflict are those in Southern Lebanon and parts of Beirut.[10] The Tribunal therefore finds there is no real chance of serious harm to the applicant, due to the current conflict on the southern border of Lebanon, now or in the reasonably foreseeable future.
[9] DFAT Country Information Report Lebanon at 3.36.
[10] BBC, ‘Israeli strikes on Lebanon causing ‘carnage’ - health minister’ (25 September 2024) consideration of claims
The Tribunal has considered the applicant’s accepted claims individually and cumulatively – that is – she is a [age] year old woman with multiple health issues returning to a poor economic situation and a deteriorating security situation in Lebanon. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant fears persecution for reasons of her race, religion, nationality, political opinion or membership of a particular social group if she returns to Lebanon, now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act.
Complementary protection
The Tribunal has also considered whether the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act – that is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk she will suffer significant harm.
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). A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.
In relation to the claimed harm from the applicant’s family members, the economic crisis and the Israel-Hezbollah conflict, the Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test and its findings that the applicant would not face serious harm from family members, or due to the economic crisis or the current Israel-Hezbollah conflict, if she were to return to Lebanon. For the same reasons, the Tribunal does not accept there is a real risk of significant harm to the applicant. That is, the Tribunal does not accept: that the applicant will be arbitrarily deprived of her life; or that the death penalty will be carried out on her; or that she will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal now considers the accepted claimed harm due to lack of adequate medical care in Lebanon.
The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in s 36(2A) are further defined in ss 5(1) of the Act. The definition of torture requires an element of intent. It is ‘an act or omission by which severe pain or suffering … is intentionally inflicted on a person’ for a specified purpose or reason. There are similar requirements of intention in the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’.
When the Tribunal discussed this issue with the applicant at the hearing, she stated that ‘God only knows the intention’. The Tribunal does not accept, on the evidence before it, that the lack of adequate medical care the applicant may face, should she be removed to Lebanon, would be ‘intentionally inflicted’ on the applicant as required by ss 5(1) of the Act. It would occur due to a general lack of resources in the health care system and the system being overwhelmed by external crises. The Tribunal therefore does not accept that there is a real risk that the applicant would face significant harm if she were removed to Lebanon.
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. When the Tribunal discussed this issue with the applicant at the hearing, she stated that someone her age cannot return to Lebanon. Having considered this response and the country information about Lebanon, including the DFAT report, the Tribunal is satisfied that the risk of economic hardship, lack of adequate health care and exposure to the current Israel-Hezbollah conflict are faced by the population of Lebanon generally and not by the applicant personally. Therefore, the applicant is caught by the exception in s 36(2B)(c) of the Act and there is taken not to be a real risk of significant harm.
For the reasons set out above, the Tribunal is not satisfied, on the evidence, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk she will suffer significant harm. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that 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 criteria in s 36(2).
Referral to the Minister
Under ss 351, s 417 and 501J of the Act, the Minister can substitute the Tribunal’s decision with a decision that is more favourable to a person, if the Minister forms the view that it is in the public interest to do so. Having considered the Minister’s Guidelines on Ministerial Powers (s 351, s 417 and s 501J), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention, as it involves unique and exceptional circumstances as described under section 4 of the Guidelines.
As indicated by the Tribunal in its reasons, the applicant is a vulnerable individual. She is

[age]-years-old and has significant physical and mental health issues. She requires support from her children to take her to medical appointments and to assist with her mobility. She requires multiple medications. She has only one child left in Lebanon. One child is in [Country 1] and the remaining 4 children are all Australian citizens residing in Australia. They provide her with care and support. The Tribunal has accepted that she would not receive adequate medical care in Lebanon due to the poor state of the health system. The current conflict in southern Lebanon is also causing an already under-resourced health care system to become overwhelmed.
The Tribunal is of the view that the applicant’s removal from Australia would have a profound emotional and psychological impact on her family in Australia. Therefore, consistent with the Minister’s guidelines, there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to her Australian family unit, being her 4 Australian citizen children. There are also compassionate circumstances regarding her age and health. The Tribunal considers this matter involves unique and exceptional circumstances and should be referred to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Suseela Durvasula
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 4479

8 October 2024

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Immigration

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Procedural Fairness

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