1932441 (Refugee) - [2023] AATA 2887

1932441 (Refugee) [2023] AATA 2887 (20 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr George Botros (MARN: 1799679)
CASE NUMBER:  1932441
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Mark Bishop
DATE:20 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 20 June 2023 at 3:00pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – former member of the Lebanese Armed Forces (LAF) – critical of Hezoballah – expressed in private to one person and not repeated – does not amount to a political opinion – Antiochian Orthodox Christian – economy of Lebanon – delay in seeking protection – complementary protection – credible witness – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 November 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 30 March 2015. The delegate refused to grant the visa on the basis he made a finding the applicant’s claim that he was mistered and harmed in Lebanon because he was a Christian holding a critical view of the Hezbollah is not credible.
The applicant appeared before the Tribunal on 25 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant provided a copy of the decision record to the Tribunal.
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) (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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1932441 (Refugee)

Details

AGLC: 1932441 (Refugee) [2023] AATA 2887
Case: [2023] AATA 2887
Decision Date: 20 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning an applicant seeking a protection visa. The applicant, a former member of the Lebanese Armed Forces, claimed to fear persecution from Hezbollah. The core of the dispute involved whether the applicant's past criticisms of Hezbollah, expressed privately, constituted a political opinion sufficient to engage Australia's protection obligations, and whether the dire economic and political situation in Lebanon, coupled with his Antiochian Orthodox Christian faith, warranted complementary protection.

The Tribunal was required to determine if the applicant possessed a well-founded fear of persecution for reasons of political opinion, membership of a particular social group, or religion, as defined by the Migration Act 1958. Additionally, the Tribunal had to consider whether, in the absence of meeting the refugee criterion, the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia, thereby engaging Australia's complementary protection obligations. The Tribunal also had to assess the credibility of the applicant's claims, particularly in light of delays in lodging his protection visa application.

The Tribunal found that the applicant's private and unrepeated criticisms of Hezbollah did not amount to a political opinion that would engage the refugee convention. However, it was satisfied that the applicant met the criteria for complementary protection under section 36(2)(aa) of the Migration Act. The Tribunal reasoned that while the applicant's fear of persecution based on political opinion was not well-founded, the severe economic conditions in Lebanon and the applicant's status as an Antiochian Orthodox Christian, combined with the general instability and the pervasive influence of Hezbollah, created a real risk of significant harm should he be returned. The Tribunal noted the applicant's credible testimony and remitted the matter for reconsideration with a direction that the applicant satisfies the complementary protection criterion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The first hearing was set down for 17 February 2023. The applicant did not attend the review hearing. The Tribunal decided it was appropriate to issue[24] an interim dismissal notice. The applicant sought[25] reinstatement and provided reasons. The Tribunal granted[26] same. The Tribunal issued[27] a further invitation to attend a review hearing on 25 May 2023.[24] Doc ID number 10752041[25] Doc ID number 10807357[26] Doc ID number 10814346[27] Doc ID number 10823610Background Information as to [Village 1], Akkar Governate of Lebanon Information made available to the Department and Tribunal shows the following:·According to the material in the PV application form, the applicant’s family is in [Village 1], Akkar Governate of Lebanon.·The incident occurred on 24 August 2014, with the applicant stating that while spearfishing, he was approached by four masked men. In the delegate’s Decision Record, it notes[28] that this occurred “in isolated area on [named] River.”·After the incident, “the applicant and his family moved to the applicant wife’s parents in the next village”[29]. ·The village itself is not named in the applicant’s Statement of Claims[30] or the Post Interview Submissions[31] provided by the Representative. This same information about the applicant’s family relocating to the “next village” was repeated in the pre-hearing submissions[32] provided to the Tribunal on 10 February 2023 with no specific village name provided.[28] Decision record.[29] Department File [Department file number], TRIM Reference [TRIM Reference][30] Department File [Department file number], TRIM Reference [TRIM Reference][31] Department File [Department file number], TRIM Reference [TRIM Reference][32] Tribunal File 1932441. Document ID 10729174 In evidence the applicant advised the Tribunal as follows:Family, remittances and assets·He is married with 3 adult children aged [age] [age] and [age]. The youngest child is a boy. His adult children are all university graduates or attending post-secondary school education. His children live in the family home with their mother.·He has extensive family living in Australia approaching approximately 1,000 persons who reside in Sydney, Melbourne and Adelaide. His family are all Antiochian Christian and all have their origins in the village of [Village 1] in the north of [Lebanon].·There are less than 200 people living in [Village 1]. People have been emigrating to Australia since the 1960’s. Nearly all, if not all the people who live in [Village 1] follow the Antiochian Christian faith. ·After an alleged threat was made to the applicant in August 2014 by 4 armed men wearing face masks his family shifted to his mother-in-law’s home in a nearby village for 2 or 3 days for reasons of safety. They returned to their own home after 3 days because after more mature consideration it was deemed safer as their was only one road giving access to the village and strangers would be observed from the outset by other village people. ·He remits to his family in Lebanon substantial sums of money for their living expenses. The Tribunal read out the detail of financial remittances summarised in paragraph 22 above and he and his solicitor agreed the Tribunal outline was correct. The applicant advised the Tribunal deposits from [Dr D] and [Mrs E] were for [Occupation 1] work. The applicant advised the Tribunal as to his employment arrangements as summarised in paragraph 22 above and the Tribunal noted it appeared the applicant worked as a contractor, sub-contractor and employed [Occupation 1] at different times. The solicitor for the applicant agreed with this assessment.·The applicant owns his own house and land in his village. The land size is about 2000 sq metres. He receives a pension from the army that amounts to about US$50 per month. His family do not work in Lebanon and their only source of income is his remittances from Australia. He does not own any other assets in Lebanon.Delays·The Tribunal examined the applicant as to the two lengthy periods of delay involved in coming to Australia and after arrival in this country the lodging of his Application for a Protection Visa as set out in paragraph 12 above. oThe delay in the period 3 September 2014 until 9 November 2014 was occasioned by the need to make his family secure in his absence and post the making of the threat to his person. He said he had previously visited Australia on 4 occasions, once with his family to honour the grave of his mother who died in this country. On each occasion he had abided by all conditions attached to his temporary visa and left on time.oThe delay in the second period was occasioned by the fact he was new to Australia, he had not advice sources, he had few funds, as he was not working, he did not know or understand the process of visa application in Australia and until he was referred to his current solicitor (who speaks Arabic) had not received any assistance. The solicitor for the applicant provided documents to the Tribunal that outlined the applicant had sought advice from the Asylum Seekers Resource Centre on or around 2 March 2023 and possibly in late February 2023.Income·The applicant advised the Tribunal the summary and detail outlined in paragraph 22 was correct.Hezbollah·The Tribunal made available to the applicant the information summarised about Hezbollah derived from various Country Information sources as follows:o Hezbollah is properly regarded as a political or ideological organisation with an armed wing that engages in warfare directed to achieving specific outcomes.o Hezbollah is very strong in certain defined geographic areas of Lebanon, the de facto source of all authority in those areas and has a presence elsewhere in the country.o Hezbollah recruits extensively in the Bekaa valley in the north of Lebanon to the west of the Lebanon mountains that act as an effective but passable internal boundary dividing east and west in the north of the country.o Hezbollah find it almost impossible to trust non-Shia people, does not recruit them because it is an ideological organisation where adherence to core principles is paramount.o Forced recruitment by Hezbollah is so rare as to be almost non-existent.o There is active and ongoing daily consultation between the Lebanese Armed Forces (LAF) and the military wing of Hezbollah.·Asked to comment the applicant advised Hezbollah were concentrated in the Bekaa valley and the south of Lebanon. He knew more than the Tribunal. Hezbollah was an ally of the LAF to protect and cover their own activities. If Hezbollah wants something it can get it anywhere in Lebanon. Many things are not reported by the media. Hezbollah has the ability to locate any person anywhere in Lebanon. His prior criticism of Hezbollah whilst in the LAF were the cause of threats to he and his family. Hezbollah maintain and extensive presence in the Bekka valley in the north of Lebanon so as to be able to receive arms from Syria and Lebanon. The applicant’s solicitor refereed the Tribunal to various parts of Smart Traveller and associated warnings. The applicant believes he has been specifically targeted by Hezbollah because of his service in the LAF which puts him at a high risk.Lebanese economy and geography·The Tribunal provided to the applicant information derived from CI sources as to the parlous nature of the Lebanese economy that set out it barely exists any longer in any fundamental economic sense, banks are regularly shut, deposits continue to be frozen and inaccessible by account-holders, most of the Lebanese middle class rely extensively on remittances from abroad to survive, capital investment is almost non-existent in Lebanon and government services are almost non-existent in Lebanon. After consideration the applicant advised the Tribunal the summary was correct and things were very bad. ·After providing 3 maps in colour to the applicant and his solicitor the applicant agreed with the Tribunal that geographic boundaries or borders within Lebanon were significantly determined by religious demographics with the north east to the Syrian border basically being Sunni Islam with enclaves of predominantly Christian faith adherents, the east centre of Lebanon was essentially Maronite Christian with a large enclave of other Christian and a smaller enclave of Shiite Islam adherents, the Bekka valley was essentially Shiite Islam with significant border enclaves of Sunni Islam and Catholic adherents, the middle part of the country from east to west was populated in many enclaves by multiple religious faith adherents and the south of Lebanon to the Israeli border was basically Shiite Islam with limited enclaves of Maronite, Catholic, other Christian and Sunnis Islamic adherents on the border of Israel. ·The applicant regarded living in his village as very safe because of the small population and relative difficulty of access via one road only where strangers would be seen early on by friends and village people.·The applicant confirmed he resided in an almost totally Antiochian Christian village. It had been so for hundreds of years. All of his family and that of his wife are Antiochian Christians. The areas immediately surrounding his village are of a similar denomination although the larger area to the north to the Syrian border is Sunni Islam not Shiite Islam with only a limited enclave of Shiite Islam adherents.·He said there was easy access across the various Lebanese mountains.Army career The applicant joined the army in [year] at the age of [age] because he needed a job, served for 4 years, resigned for 2 years, re-joined and served from [year] until he retired in 2010. He had a steady career enjoying regular promotion through [number] grades to the rank of [specified rank]. In the last 10 years of his army career he served in the [specified section]. He did not see active service outside Lebanon borders. He saw constant active service within Lebanon. He was wounded in combat. He underwent a lot of training over many years. The Tribunal read to him the detail of paragraph 26 under the heading [specified] Regiment webpage lists their mission. He advised he had done all this or similar training as undergoing training was the basis of promotion. He agreed he was a highly trained and expert and skilled soldier in a difficult area of endeavour.Spearfishing incident·The applicant advised he left home, walked about 2 km to the [named] river, was dressed in a t-shirt and shorts, was approached by 4 armed men wearing masks who called him by name and said they needed him to come and fight in Syria. He was concerned they knew his name and did not believe they wanted him to join Hezbollah and fight in Syria because he was of the view based upon his own knowledge and experience that the forces in Syria were well-numbered, not short of men and quite proficient in their military role. He was reminded of his experiences in the LAF where a particular [rank officer] by the name of [Mr B] was a person of Shiite Islamic attachment and who resigned the applicant thought in 2006 to join Hezbollah.·The applicant believes this individual carries an enmity towards him, reported his views on Hezbollah and its leadership within his own party and this caused Hezbollah to dispatch the 4 men to accost him and threaten him. ·The applicant advised he had only one argument with this individual in his 10 years of service with him in the LAF. The applicant advised it was a serious offence to engage in political discussions within the LAF. The applicant advised he never had any confrontation with this individual·The applicant believes the root cause of the enmity between this individual and himself is the applicant’s insults about Hezbollah and its particular leadership. He advised he cannot express his views on Hezbollah anywhere in Lebanon because they have a presence across the entire country. He did no know if this individual reported his view to Hezbollah. He cannot think of any other reason as to why Hezbollah would send armed men to threaten him and possibly kill him.·He has not raised the spearfishing incident with church elders, village leaders or senior persons in the command cadres within the LAF. He has not sought the assistance of any outside person or organisation. Apart from his immediate family he did not relay the incident to other family members. He did not escalate the incident or seek intervention of others because he does not rust the privacy of his confidences and believes if he did his family might be harmed. ·Apart from the above explanation he is at a loss to explain why 4 armed men, presumed to be from Hezbollah and remote from their own resource base, many years after he retired from the army, would enter an almost exclusively Antiochian Christian area, accost him as a known Antiochian Christian person and threaten him many years after minor political discussions about Hezbollah and its leadership.·He last saw his youngest son when he was aged [age]. He is now [age]. He misses being with his wife and children.Country Information[Lebanon Armed Forces (LAF)]

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant lodged an application for a Holiday Visa to visit Australia on 19 August 2014. The incident that caused the applicant to flee Lebanon occurred on 24 August 2014[1]. He was granted the visa on 3 September 2014. He departed Lebanon for Australia [in] November 2014. He lodged an Application for a Protection Visa on 30 March 2015.[2] The applicant currently resides in Australia as the holder of a Bridging Visa A with nil conditions. This means he has work rights.[1] See decision record page 2 and Statement of Claim.[2] See decision record pages 1 and 5 The Tribunal notes a delay in seeking protection can support an adverse credibility finding as well as a finding that his fear of returning to Lebanon was not well-founded. In evidence the applicant advised[3] the Tribunal as to the reasons for his delay in lodging an Application for a Protection Visa. In addition to these reasons the applicant also advised the Tribunal his family only left their home village for 2 or 3 nights after the spearfishing incident and then returned home to their home in their own village because it was safer there, the village was heavily populated with identical faith adherents, there was only one road into and out of the small village and hence strangers would be readily seen by village people and neighbours alike. For these reasons it was safer for his family to return and remain in his home village. The applicant has extensive family in Australia. In addition almost a thousand people have emigrated to Australia from his home village and immediate surrounds since the 1960’s. Accordingly the applicant if he was of a mind had easy access to many people who would have been able to advise him of some of the relevant considerations or alternate sources of advice inclusive of departmental websites and self-help organisations within the Lebanese community in lodging an Application for a Protection Visa. There is some evidence before the Tribunal the applicant took advantage of these opportunities for a considerable time after his arrival in Australia. Possible legal fees became a bar to formal action to early lodgement of his Protection Visa Application.[4] [3] See decision record, paragraph 17 under heading Post Interview Matters (4) and paragraph 25 under heading Delays.[4] See paragraph 31 below for the Tribunal finding on this point. In his Application[5] for a Protection Visa signed 6 March 2015 the applicant provided 4 photographs, (in translation from a Lebanese translator/interpreter in Lebanon circa February 2015) various army documents and declared as follows:[5] [Department file number] [TRIM Reference]·He is is an Antiochian Orthodox Christian born in [Village 1], Akkar Governorate of Lebanon on [date]. He is a citizen of Lebanon. His parents and some of his sibling have dual Australian and Lebanese citizenship.·The applicant served in the Lebanese Armed Forces (LAF), predominantly with the [specified section], for [number] years. He retired from the LAF [in] 2010. At that time he was a [rank] in the [specified] Regiment. He was deployed to Lebanon in 1994 and Syria in 1997.[6][6] [Department file number] [TRIM Reference] Form 866C page 22 question 28·The applicant was fishing one day when he got seized by a group of masked men dressed in black. They told him they knew who he was, they knew his address and that he served in the military. They told him they needed him and his fighting skills in Hezbollah. They let him go when a stranger came to see what was happening. They told him they would come back for him and force him to leave with them.·The applicant fears that if he returns to Lebanon, he will be located by Hezbollah, recruited and forced to fight for them.·Lebanon does not have a secure and stable government and Hezbollah controls the country and its institutions. The applicant fears he will not have any form or support or protection from the government and authorities in spite of his past service in the LAF.·The applicant’s family is all in [Village 1]. Once he realised he was in danger, he came to Australia.·The photographs[7] are as follows:[7] [Department file number] [TRIM Reference]oBlack and white picture of the applicant in a beret with a non-distinguishable insignia attached to the top of the beret.oPicture of an unidentified man scaling a cliff with a rope.oPicture of a 4 men in a platoon with what appears to be automatic weapons.oPicture of a man in black scaling a cliff with a rope.·Army documents[8] as follows:oDischarge notice dated [in] 2010 for [the applicant], Military Number [specified], Rank [specified], Unit [specified] Regiment within the Headquarters of North Lebanon Zone.oReservist Card valid [until] 2020 in the name of [the applicant] dated [in] 2010 with date of expiry of reservist status [until] 2020.oStatement from [a named] Medical Centre advising [the applicant] was a victim of a gunshot in the [forearm] [in] June 2007 and underwent surgery to remove shrapnel under general anaesthesia. It appears this certificate was issued [in] February 2015[9].oStatement of retirement at request of [the applicant] from [General A], CIC of the Army dated [in] 2015.oExtract of birth certificate for the applicant[8] [Department file number] [TRIM Reference][9] See Department File [Department file number] at [TRIM Reference]

Decision

Reasons for decision

For the reasons given above the Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does satisfy the criterion set out in s 36(2)(aa) for a protection visa. DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act. Mark BishopSenior MemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant lodged an application for a Holiday Visa to visit Australia on 19 August 2014. The incident that caused the applicant to flee Lebanon occurred on 24 August 2014[1]. He was granted the visa on 3 September 2014. He departed Lebanon for Australia [in] November 2014. He lodged an Application for a Protection Visa on 30 March 2015.[2] The applicant currently resides in Australia as the holder of a Bridging Visa A with nil conditions. This means he has work rights.[1] See decision record page 2 and Statement of Claim.[2] See decision record pages 1 and 5 The Tribunal notes a delay in seeking protection can support an adverse credibility finding as well as a finding that his fear of returning to Lebanon was not well-founded. In evidence the applicant advised[3] the Tribunal as to the reasons for his delay in lodging an Application for a Protection Visa. In addition to these reasons the applicant also advised the Tribunal his family only left their home village for 2 or 3 nights after the spearfishing incident and then returned home to their home in their own village because it was safer there, the village was heavily populated with identical faith adherents, there was only one road into and out of the small village and hence strangers would be readily seen by village people and neighbours alike. For these reasons it was safer for his family to return and remain in his home village. The applicant has extensive family in Australia. In addition almost a thousand people have emigrated to Australia from his home village and immediate surrounds since the 1960’s. Accordingly the applicant if he was of a mind had easy access to many people who would have been able to advise him of some of the relevant considerations or alternate sources of advice inclusive of departmental websites and self-help organisations within the Lebanese community in lodging an Application for a Protection Visa. There is some evidence before the Tribunal the applicant took advantage of these opportunities for a considerable time after his arrival in Australia. Possible legal fees became a bar to formal action to early lodgement of his Protection Visa Application.[4] [3] See decision record, paragraph 17 under heading Post Interview Matters (4) and paragraph 25 under heading Delays.[4] See paragraph 31 below for the Tribunal finding on this point.