1935892 (Refugee)

1935892 (Refugee) [2023] AATA 2289 (17 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ahmad Lababidi (Zouki Lawyers) ALP No: 5512732
CASE NUMBER:  1935892
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Mark Bishop
DATE:17 February 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 17 February 2023 at 12:48pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion and imputed political opinion – apolitical Sunni – threatened by Syrian Shia Alawite workers and refugees and vehicle damaged –authenticity of supporting evidence – consistent and unexaggerated claims and oral evidence – country information – political, economic and social conditions – state protection not available – members of family unit – second applicant’s physical health and treatment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2)(a), (b)(i) 65
Migration Regulations 1958 (Cth), Schedule 2
CASES
NAIZ v MIMIA (2005) FCAFC 37
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 December 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Lebanon applied for the visas on 5 August 2016. The delegate refused to grant the visas on the basis the delegate not satisfied that there was a real chance that, if the applicant was returned to Lebanon, he would be persecuted for one or more of the reasons mentioned in s5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s5H and the criterion in s36(2)(a) of the Act is not satisfied for this reason.
The applicants appeared before the Tribunal on 14 February 2023 to give evidence and present arguments: The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. At the beginning of the hearing the Tribunal advised the applicants it accepted applicants 2 to 6 were members of the family unit of the applicant. The applicant gave evidence to the Tribunal. Applicant number 2 gave brief evidence at the end of the hearing saying she wished to remain in Australia for reasons of safety and security. Applicant 2 did not otherwise give evidence to the Tribunal. Applicants 3 to 6 did not give evidence to the Tribunal.
The applicant provided a copy of the decision record to the Tribunal.
The applicants were 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 if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The applicant entered Australia [in] July 2016 as the holder of a [Visitor] Visa that ceased on 5 October 2016. He currently resides in Australia as the holder of a Bridging Visa A with zero visa conditions. He has been employed in a [Workplace] for the last 6 years.
In his Application for a Protection Visa[1] dated the applicant advised he would be harmed, he would give details of recent experiences in an interview, there was no help due to lack of government, he can’t afford to move to another part of the country, the authorities have no power to protect the people, he has no money to relocate within his home country
[1] [Reference 1] Questions 90 to 97 and response.
In his Statement of Claims[2] document in response to Question 90 he advised as follows:
[2] [Reference 1]
·He left Lebanon to avoid harm he has suffered significant physical harassment, and significant economic hardship. He has been a [vehicle 1] driver since 2007.
·He drove rom Lebanon to [Country 1], Syria, [Country 2] and [Country 3].
·Since 2012 he has not been paid properly.
·He has been delayed in Syria by the Syrian army who made demands of money and seized his property.
·Travelling through the Syrian border he was threatened and 3 army people wanted him to drop them off as part of his trip.
·With the start of the Syrian war it is difficult to cope with refugees in his areas. They questioned him as to his work and his various [vehicle 1] trips. He was questioned about membership of a political party. He is not a member of any political party. He works hard to support his family.
·He is fortunate his brother-in-law applied for a visitor visa for his family.
·He is unable to return to Lebanon because he does not know if he will face a lot more harm. He is a victim.
·His [vehicle 1] remains in [Location], [Town].
·He has to pay for school fess and medical treatment.
The applicant attended an interview with the Department. In response to questions[3] he advised as follows:
·    He feared returning to Lebanon because conditions are bad, everyone has problems, people cant afford to pay for hospital treatment, the banks are closed, there are protests and fighting is ongoing. Nothing works in the country. People do not have any dignity. He needs to access medical treatment for his children.
·    The applicant outlined his concerns concerning the economy: the land route through Syria was closed and this closure caused delays and cost. He sold his [vehicle 1] to pay for living expenses and decided he had to leave his home country. His large family network in Lebanon can hardly support themselves.
·    He is a Sunni Muslim and his work colleagues accused him of supporting particular political parties. He does not support any politics. He received a threat. His [vehicle 1] tyres were slashed. Syrian drivers were aggressive to him and verbally abused him.
·    Approximately 70,000 Syrians live close to him in [Town]. He is frightened. His wife is stressed. He believes more than one third of Syrians are bad. He thinks if he returns from Australia they will think he is rich and kidnap his children. He does not feel secure in Lebanon.
·    He cannot seek protection from the Lebanese authorities as they can hardly protect themselves. He reported the damage to his [vehicle 1] and the police came to investigate 2 days after faking the complaint.
[3] [Reference 1] as per audio tape and per decision record pages 5 and 6
In addition the Tribunal reviewed the departmental interview and relevant audio tape. The departmental officer interviewed[4] him as to his protection claims The Tribunal provides the following summary in addition to the material summarised at paragraph 15 above:
[4] Audio tape 31:38
·He feared returning to Lebanon for the following reasons:
oScared because of the living conditions
oWorry for the safety of my family members, I don’t want them to be endangered...just for nothing
oThere are no work opportunities , living conditions are very bad, nothing is working
oThe people are dying at the door of the hospital because they cannot afford to pay for the hospital
oThere is no dignity for people; all fighting; people are dying
oMaybe a couple of days ago, someone was killed in Beirut and you never know who killed him and why and what happened
·In the interview he advised he had nothing further to add from time of lodging his Application for a Protection Visa until date of interview[5]. He paid the fares[6] to come to Australia. In Australia he, his daughter and his son are all working. The family lives together. In Lebanon he had been self-employed and also worked for a company.
[5] Audio tape 35:45
[6] Audio tape 36:28
·He experienced financial problems[7] in Lebanon and that was part of the reason for coming to Australia. Extended delays in the transport business were primarily caused by the war in Syria. He was accused of supporting alternate political systems. He repeatedly advised he had nothing to do with politics[8]. He refused to engage in discussions about politics (often 60 drivers) and this caused suspicion.
·His [vehicle 1] was damage and tyres slashed. he didn’t know who did this[9]. He assumed the people responsible knew where he lived. On his last trip unidentified people were really aggressive to him[10]. He felt threatened and there was verbal abuse.
·More than a third of Syrians are bad people. Syrian [vehicle 1] drivers would send people to hurt him. They would talk amongst themselves and because you are not with them you are against them.[11] It would be a problem if he returned home.
·The problem is they would think he has plenty of money if coming back from Australia so they would kidnap one of his children for ransom money.[12] Lebanon police would not protect him as they can hardly protect themselves and wouldn’t be able to protect anyone.[13]
·In the past, in 2014 there was a war and as he drove through Syria he was directed to stop and used as a shield. In the future it could happen again to people who are not locals. He will be targeted personally and his neighbours are Syrians.[14]
·In the past the police followed up his complaints. The police made a report but nothing was done about it.[15]
·Relocation to another area of Beirut or another Sunni area would be difficult because he would be renting there are no opportunities, everything is so expensive, gas, electricity, water, I wouldn’t be able to afford it so this is the economic condition it is very poor, very bad.[16]
·He will face serious harm if he returns to Lebanon because there are large Syrian camps around his neighbourhood, he is concerned for the safety of his family.[17]
·He sold his [vehicle 1] for various living and travel expenses.[18]
·He and his family could work in Lebanon if the strangers left the country. His family has limited ability to help him. There are no hospitals and no schools. Upon review he said he had to pay for medical. In Australia there is safety, security and peace. The police will help you.[19]
[7] Audio tape 38:51
[8] Audio tape 42:15
[9] Audio tape 46:45
[10] Audio tape 49:33
[11] Audio tape 54:49
[12] Audio tape 56:28
[13] Audio tape 58:23
[14] Audio tape 59:19
[15] Audio tape 1:03:28
[16] Audio tape 1:05:23. The Tribunal notes the departmental officer explained to the applicant that economic conditions is not something within the scope of the interview as those conditions are something experienced generally by the Lebanese population.
[17] Audio tape 1:09:42
[18] Audio tape 1:13:45
[19] Audio tape 1:15:03, 1:17:46, 1:18:36, 1:21:08
The delegate made the following findings of fact[20]:
·I find the applicant experienced a downturn in his economic situation and fears he will face financial hardship if he returns to Lebanon.
·I find the applicant holds a subjective fear that he will not be able to access medical treatment in Lebanon.
·I find the applicant does not have a political opinion and has not expressed one.
·I find the applicant was alienated by his [vehicle 1] driving colleagues as he did not get involved in political discussions.
·I find the applicant was a victim of general vandalism in relation to the damage to his [vehicle 1] tyres.
·I find the applicant has not been persecuted in the past in Lebanon
·I find the applicant holds a subjective general fear of harm from Syrian refugees living in Lebanon.
·I find the applicant has a general fear that his children could be kidnapped for ransom by Syrian refugees in Lebanon.
[20] Decision record page 6
In summary the delegate made the following finding[21] in respect of the applicant’s refugee claims:
·I have found the applicant holds a subjective fear of economic hardship; of not being able to access medical care; and of a third party - Syrian refugees if he returns to Lebanon. Having considered the applicant’s claims, I am not satisfied that the applicant’s fear of harm has a link to any of the reasons provided in subsection 5J(1)(a) of the Act. The applicant’s claimed fear of harm relates to personal matters that fall outside the scope provided in subsection 5J(1)(a).
[21] Decision record page 7
The delegate considered the applicant claims against the complementary protection guidelines and country information[22]. The delegate addressed in detail with appropriate citations the following claims of the applicant:
[22] Decision record pages 7 to 11
·Asylum seekers returning home to Lebanon are unlikely to face stigma or discrimination, they are not distinguishable from the broader community, are not susceptible to any form of discrimination or violence based on having sought asylum overseas[23]. Lebanon has a long history of migration and return and most returnees are likely to return to their home communities or resettle in Beirut.[24]
[23] Country Information Report (CIR Lebanon October 2017: See also decision record page 8
[24] Country Information Report (CIR Lebanon October 2017: See also decision record page 8
Economic Circumstances
·After setting out factors relating to working age ,applicant health, applicant home ownership in Lebanon, extensive experience as a [vehicle 1] driver, a good family support network in Lebanon and demonstrated flexibility in adapting to a foreign country where he does not speak the language the delegate made a finding the applicant would be able to return to Lebanon, live in his family home and seek employment as he has done in the past. There is no compelling information before me to suggest that this would not continue to be the case in the future.[25]
[25] Decision record page 8
·After consideration of the country information I acknowledge the applicant would be likely to face a degree of economic hardship on return to Lebanon due to Lebanon’s general economic conditions. However, these are problems experienced by the Lebanese population generally and not targeted to the applicant specifically. I am not satisfied that the applicant will experience denial of access to basic services which would constitute the requisite threshold of significant harm.
·In short, the Complementary Protection Guidelines advise:
oThere is no obligation at international law for States to provide protection to people fleeing violations of economic, social or cultural rights.
oThe fact that a person may enjoy less favourable social, economic or cultural rights in another country does not, of itself, give rise to a non-refoulement obligation.
oA state’s failure to provide housing or education or to guarantee ready access to adequate food is very unlikely to constitute significant harm for the purpose of s36(2A)of the Act.
oEven if decision makers are satisfied that a claim of harm arising from a breach of an applicant’s socio-economic rights is sufficiently severe, to meet the definition of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ in s5(1), the harm would need to meet every other element of the relevant definition. In other words, a decision maker would need to identify an act or omission by which the requisite level of pain or suffering is intentionally inflicted.
·Given the nature of these claims it is understandable that the applicant would prefer to remain in Australia where economic conditions are more favourable. However, claims of this nature are not within the scope of the Refugee Criterion or Complementary Protection provisions.
Medical Treatment
·In considering the country information regarding the health care system in Lebanon the delegate made the following findings:
oThe mass influx of Syrian refugees since 2011 has placed considerable strain on the Lebanese health system, particularly in the north of the country and in the Bekaa Valley[26].
oWith consideration to the country information, while I acknowledge that health services in Lebanon are not of the same standard experienced by the applicant in Australia and that the services are currently overburdened with the influx of Syrians in Lebanon, I note that health services are available to the Lebanese population generally.
oI consider there is a functioning health care system available in Lebanon. There is no evidence that the applicant would not be eligible to access health care in Lebanon as a citizen of Lebanon if he returns.
[26] DFAT Country Information Report: Lebanon', Department of Foreign Affairs and Trade, 19 March 2019, 20190319100208 and decision record page 10
Fears of Syrians in Lebanon and Protection from an Authority
·The delegate considered country information in relation to the Syrian refugee situation in Lebanon.[27]
·The applicant’s claims in relation to his fear of Syrians in Lebanon relate to generalised and not targeted violence. However, I have considered if the applicant can seek protection from an Authority in Lebanon if required.
·The applicant claims the authorities in Lebanon cannot protect him. Having considered the country I note that the applicant’s claims in this regard are not substantiated. Rather, country information indicates that the applicant’s sentiments in respect of not approving of Syrian refugees living in Lebanon are widely shared by Lebanese society, including the Lebanese authorities themselves, who have been taking deliberate action to coerce the refugees to return to Syria. Country information also indicates that it is Syrian and foreign nationals who are vulnerable to kidnapping in Lebanon. Sources cited above also indicate that if the applicant were to require state protection from harm by Syrians living in Lebanon he would be able to access this and the ISF are generally responsive. There is no information before me to suggest otherwise.
·Therefore I consider the applicant would be able to avail himself of protection from the state authorities in Lebanon if required, to ensure he would not be ‘harmed’ by Syrians in Lebanon.
[27] Decision record page 10 and 11

In respect of complementary protection criteria the delegate made the following finding[28]:
·I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Lebanon, there is a real risk [the applicant] will suffer significant harm as outlined in s36(2)(aa) of the Act. Therefore, I am also not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act. As I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations, an assessment in relation to s36(2C) has not been made.
[28] Decision record page 12
The Tribunal wrote to the applicant on 20 December 2022 and invited the applicant to attend a review hearing scheduled for 14 February 2022. In that hearing invitation the Tribunal requested the applicant provide written submissions by 7 February 2022. On 8 February 2023 the applicant write to the Tribunal and advised “…We confirm receipt of the Tribunals email dated 6 February 2023 and are currently collecting the requested documentation and will provide them to the Tribunal once they are received.”[29]
[29] Doc ID number 10720133
Prior to the hearing the applicant did not provide a written submission to the Tribunal.
On 6 February 2023 the Tribunal wrote[30] to the applicant in the following terms:
I am writing in relation to the applications for review made by you in respect of decisions to refuse to grant Protection visas.
You are requested to provide the following information:
·Details inclusive of gross salary, net salary and superannuation payments plus supporting documentation for all employment since entering Australia.
·Statement of employment from relevant employers for all work in Australia since entering this country.
·Copies of all bank account statements since entering Australia until present time.
·Copies of all remittance payments to family in Lebanon since entering Australia.
Please provide this information, in writing, by 5pm on 10 February 2023. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.
If you are unable to provide the requested information by 5pm on 10 February 2023, you should contact us before this date.
[30] See footnote number 6 in paragraph 16 above
Prior to the hearing the applicant did not respond to the request for information outlined in paragraph 23 above.
In evidence the applicant advised the Tribunal as follows:
·He lives in Melbourne with his family. He is employed in a [Workplace] and his net salary is approximately $800 per week. He does not have sufficient surplus income to remit any funds to Lebanon. His son works on a casual basis for 2 to 5 days per week. His spouse is undergoes [medical condition] treatment and will do so for the foreseeable future.
·The Tribunal read out loud a summary (see paragraph 16 above) of the applicant’s interview with the Department. The applicant advised the Tribunal he stood by the statements he made in the interview and it was all still correct. He advised further he speaks to his siblings in Lebanon on occasion. His sibling advised him within the last 3 months hassling was still occurring, strangers had broken into his house and graffitied the wall with threats. He advised a neighbour had witnesses strangers arriving at his house in a vehicle without number plates, broke into the house and damaged the front door. The neighbour reported the break-in to his sibling who took some time to advise the applicant because he was aware the applicant’s spouse was receiving treatment for severe [medical condition]. The incident was not reported to the police.
·He believes the economic situation in Lebanon is worse than 2016.
·He still believes he will be threatened and killed if he should return to Lebanon for religious and sectarian reasons.
·The Tribunal read out a summary of the delegate’s findings (see paragraph 17 above). Asked to comment the applicant advised he had never been mistreated , harmed or persecuted in any way by Lebanese government authorities.. He does not have any problems with the Lebanese government or Lebanese authorities.
·He only has issues with Syrian [vehicle 1] drivers and their colleagues when he is away from home earning an income because of religious and sectarian reasons. These problems come from adherents of Alawites the most common Shia sect in the middle east. He is a Sunni Islamist.
·He provided three examples of abuse, taunts and threats from members of this sect against himself in the period 2013 until 2016. The last threat concerned him most as it was the cause of he and his family fleeing from Lebanon to Australia.
·He advised that on a ship returning from [Country 2] to Lebanon [he] was trapped into and directed to join in political discussions held by many of the other drivers. These discussions were designed to determine his religion and hence political leanings or affiliation as the two are inextricably linked in Lebanon. This discussion was led by Alawites and other Shia adherents and ended in him being accused of being different, harassed, taunted and prior to others breaking up the argument he was fearful of his life because he was of a different political and religious persuasion to most of the other drivers on the ship.
·In Lebanon the tyres on his [vehicle 1] were slashed. This was not a simple act of vandalism. It was a direct warning and understood as such. The use of the knife to slash his tyres meant his throat would be slashed next because the threat came from Syrian Alawites deriving from information gained from and about him from his [vehicle 1] driving work. In Lebanon the use of the knife meant a threat of murder next time. The incident of tyre slash occurred about 6 months prior to coming to Australia.
·He is not now and never has been involved in any political parties, activities or organisations.
·In Lebanon he and his family mover almost exclusively in Sunni or Christian circles. His only contact in recent years with Alawites or persons from Syria have been of a threatening nature derive from his work as a driver.
In the context of the above evidence the Tribunal notes the following:
·On 7 December 2022 Zouki Lawyers per Mr Ahmad Lababidi wrote[31] to the Tribunal and advised “We are currently drafting a submission to be provided to the Tribunal and compiling additional documentation to be provided with the submission being drafted. Is the Tribunal able to provide our office the likely date the hearing will be allocated to so we can ensure our submission is filed before this date?”
·On 20 December 2022 the Tribunal wrote[32] to the applicant and invited him to attend a hearing. As part of that invitation the Tribunal advised “…You should provide a written submission setting out all claims made and maintained by the applicants by 7 February 2023. The submission should be accompanied by a signed declaration from the applicants that the submission has been read and explained to them and that it accurately and completely presents their claims…Please provide all documents you intend to rely on to support your case by 7 February 2023.”
·On 20 January 2023 the Tribunal wrote[33] to the applicant and refused a request for an adjournment.
·On 6 February 2023 the Tribunal wrote[34] to the applicant and requested the applicant provide certain specific information by 5pm 10 February 2023.
·On 8 February 2023 Zouki Lawyers per Mr Ahmad Lababidi wrote[35] to the Tribunal and advised “…We confirm receipt of the Tribunals email dated 6 February 2023 and are currently collecting the requested documentation and will provide them to the Tribunal once they are received.”
·On 10 February 2023 Zouki Lawyers per Mr Ahmad Lababidi wrote[36] to the Tribunal and advised “…we have located the transcript for the Protection Visa interview.”
[31] Doc ID number 10525109
[32] Doc ID number 10572263
[33] Doc ID number 10665116
[34] Doc ID number 10711611
[35] Doc ID number 10720133
[36] Doc ID number 10728108
Despite the many request for information and repeated undertakings neither the applicant nor his solicitors provided any documentation or submissions or to the Tribunal prior to the hearing.
At the conclusion of the hearing the MA for the applicant advised the Tribunal the applicant’s fear of returning to Lebanon was a fear of kidnapping or murder. He advised that in Lebanon religious and political identities are important to everyone. The applicant was aware of this and hence he wished to stay distant from any political discussions with virtual strangers. In Lebanon members of a particular religion are deemed to have a particular association with a particular political ideology. The applicant did not want problems from work to follow him home. The applicant believes he is targeted because he is a Sunni Muslim. The slashing of the [vehicle 1] tyres would be understood in Lebanon as a threat. The applicant’s home was broken into and graffiti threats were daubed on the wall of his home.
The Tribunal was of the view the evidence of the applicant was of a qualitatively different nature than the interview material available on the Departmental file. The Tribunal was critical of the lack of written submission and supporting documentation inclusive of current Country Information concerning Lebanon that might address the particular claims of the applicant as the decision record provided detailed responses to many, if not all, of the protection claims of the applicant. The review applicant put forward a case that he or members of his family would be killed by Syrian nationals or members of the Shia Alawite sect if removed back to Lebanon because of past threats that arose out of his employment. In such a scenario the Tribunal explained it expected relevant submissions and supporting documentation. In the current review application hearing as outlined above the Tribunal could only re-examine the applicant on matters deriving from material on the Departmental file or decision record.
In these circumstances the Tribunal explained its concerns to the applicant in the presence of his solicitor and requested the solicitor provide written submissions plus any supporting material by 12 noon Friday 17 February. The Tribunal explained to the applicant it would not commence to write a decision until after this time.
Request for Adjournment
This review application involves the applicant, his spouse and 4 children. Details are as follows:
·[The applicant] lodged an Application for a Class XA Protection Visa (subclass 866) on 5 August 2016.
·[Applicant 2] is the spouse of the applicant. She does not have her own claims. The delegate made a finding applicant 2 is a member of the family unit of the applicant. The Tribunal has reviewed the Departmental file. The Tribunal is satisfied applicant 2 is a member of the family unit of the applicant.
·[Applicant 3] is a son of the applicant. He does not have his own claims. His date of birth is [Date]. At time of decision he is [Age] years of age.
·Applicants 4, 5 and 6 are children of the applicant. None of these dependent children have their own claims. At time of decision applicants 4, 5 and 6 are under the age of 21.
The applicant’s MA wrote to the Tribunal on 7 December 2022 and advised “…We are currently drafting a submission to be provided to the Tribunal and compiling additional documentation to be provided with the submission being drafted. Is the Tribunal able to provide our office the likely date the hearing will be allocated to so we can ensure our submission is filed before this date?”
The Tribunal wrote to the applicant on 20 December 2022 and invited the applicant to attend a review hearing scheduled for 14 February 2022. In that hearing invitation the Tribunal requested the applicant provide written submissions by 7 February 2022.
On 19 January 2023[37] the Migration Agent (MA) for the applicant, Zouki Lawyers, wrote to the Tribunal and advised “…We have received instructions from our client that they wish to postpone the hearing for the foreseeable future as [the applicant’s wife], who wishes to be part of the hearing has been diagnosed with [medical condition] as evidence by the attached letter… We confirm that the Applicants wife is not in a condition at this time to be a part of any hearings due to her diagnoses and preparation for upcoming additional complex surgeries as part of her treatment. We hope the Tribunal can understand that these are very stressful times for the family and grant their request for postponement.
[37] See Document ID number 10661009
Attached to the correspondence set out in paragraph 23 above was a letter from [a medical] Centre dated 17 January 2023 advising applicant 2 “…was diagnosed on 5 August 2021 with a [medical condition], following [detection procedure].” The letter went onto advise applicant 2 “…is also planning for additional complex surgeries to manage her surgical and treatment related complications. [Applicant 2] will be scheduled for [Major operation] in 2023… and will need continued supportive care and management from the [surgical] [Team] at [Centre]. We expect [Applicant 2]’s recovery will be lengthy, and she will have high levels of supportive care needs throughout the foreseeable future”
In this review application it is the applicant who has applied for a Class XA Protection Visa (subclass 866). All other applicants are members of his family unit. None of them inclusive of applicant 2 has a merits based claims. Their claims are based upon being members of the family unit of the applicant.
The applicant has lodged a request for an adjournment “for the foreseeable future” based upon the illness suffered by his wife “…who wishes to be part of the hearing…”
It is not clear what role applicant 2 would play in the hearing, if any, as her claim for protection is based upon being a member of the family unit of the applicant. There is no impediment to her attending the hearing, observing the hearing and giving evidence to the Tribunal if that is her wish. As is well known the Tribunal regularly conducts hearings in person, by video link and by mobile phone. It is common for applicants or witnesses to have a support person attend hearings and provide comfort if thought necessary. The medical advice provided relating to the health of applicant 2 does not state she cannot attend a hearing, should not attend a hearing or would be medically harmed in any way by attendance at a hearing conducted in any form permitted under the Act.
The applicant has not advanced any reasons as to why the scheduled hearing should not proceed excluding the reference to the medical condition of applicant 2.
On 8 February 2023 the applicant returned to the Tribunal a “Response to Hearing Invitation” Form[38]. The form was completed. It advised all applicant would participate in the hearing inclusive of applicant 2. The applicant advised the Tribunal there was not any issue that may effect the ability of any person to take part in the hearing[39].
[38] Doc ID number 10720133
[39] Doc ID number 10720133 Answer to question 2B
Applicant 2 appeared before the Tribunal on the day of the hearing. The Tribunal explained to applicant 2 the significance of being a member of the family unit of the applicant and that the Tribunal did not challenge this finding of the delegate.
The applicant did not provide the written submission to the Tribunal as outlined in paragraph 29 above. Accordingly the Tribunal examined the applicant on these matters. See paragraph 25 above.
On 17 February 2023 the applicant provided the material as requested. The Tribunal summarises that material as follows:
·Legal submissions as follows:
oRefugee Convention, well founded fer of prosecution s 5H and s 5J of the Migration Ac.
oRefugee nexus being an inability to return to Lebanon for reason of persecution due to his Sunni Islam religion, his perceived political opinion, fer of harm from Shi'a Muslims, Alawis and supporters of the Syrian regime in Lebanon. These risks extend to all locations in Lebanon and the authorities are unable to provide protection.
oWell-rounded fear and past persecution inclusive of country information, a reference to a well-known statement from a Professor Hathaway[40], a list of past incidents of harm.[41]
[40] Hathaway J, Law of Refugee Status, Butterworths, Toronto, 1991, p. 88.
[41] Doc ID number page 4
oThe security situation, the rise of Sunni Islamic radicalism, sectarian conflict and the presence of such religious extremists in Tripoli, the deteriorating security situation in Lebanon, the strong influence of radical Islamic groups on Tripoli and the north of Lebanon, the lack of Sunni Muslims trust in the Lebanese forces to protect them as well as the influence of militant groups on Sunni male youth clearly shows the danger the applicant and his family may encounter if they are forced to return to Lebanon.
oThe applicant’s wife’s (applicant number 2) health condition has had a significant social and economic impact on the family’s wellbeing. She requires daily medication and ongoing specialised treatment and support. The family would not have access to the same support she has in Australia as her condition is terminal and requires specialised health services and care in Australia. In addition, it is submitted that the applicant’s wife would suffer serious harm as a member of the
oparticular social group of people with health disorders in Lebanon. It is submitted that medical services in Lebanon are struggling to cope as a result of the country’s economic crisis. The applicant’s wife would be unable to conceal her serious health illness, which would expose her to societal discrimination, including healthcare practitioners who do not understand her condition.
oIt is submitted that Lebanon is currently in an economic war with worsening political instability and no hope for the future. The Australian Government on the Smartraveller website and information published by equivalent Government sources in the United States, United Kingdom and New Zealand in relation to Lebanon and warnings regarding incidents and threats of kidnapping against foreigners, including westerners who could be targeted by kidnappers and other militant groups. It is submitted that there is a comparatively very high risk that the applicant will be kidnapped as he would be perceived to be wealthy as he resides in Australia. If he were to be kidnapped, the family would be unable to pay a ransom.
oIf the applicant is refouled back to Lebanon he would stand out as a foreigner and would not be able to blend in society as he has no connections and acquaintances in Beirut.
oExtracts from DFAT CI Report Lebanon March 2019 and conclusion “…it is reasonable for the applicant to believe that the situation was likely to escalate given those baseless threats turned to physical damage to his vehicle at his home address and most recently to his home property. Given that the individuals threatening him knew where his family lived it is reasonable for the applicant to fear for his children’s safety, namely that they would be kidnapped…” [42]
oPossibility of Relocation, reference to current case law and “reasonableness” of relocation[43] and need to give consideration to practical realities of how an appellant could relocate in Lebanon and such relocation to be in areas where the possible area is safe.[44]
oComplementary Protection
·Supporting documentation re payslips of [Applicant 3], [the applicant] and [Applicant 4], bank statements of [Applicant 4], relevant statements of service, photos and translation of vandalism done to the applicant’s home in Lebanon.
[42] Doc ID number page 7
[43] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18,
[44] NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 37 per Branson J at 22

The Tribunal notes the supporting documentation referred to in paragraph 43 above is consistent with the oral evidence of the applicant.
The Tribunal notes the applicant provided a translated copy of the vandalism daubed on the interior of his home that states as follows:
·Your blood thereof is shed, The sign of death, We are waiting for you regardless of how long you are staying in Australia, [Given name], we want you alive or dead[45], a stiletto on the door and damage to the keyhole
[45] Document ID number 10751811
The Tribunal notes the applicant provided a translated copy of WhatsApp conversations[46] characterised as a threat from an unknown man and information from his brother as to the extent of threats and vandalism to his home inclusive of threats to his brother.
[46] Document ID number 10751810
The Tribunal notes the applicant provided a copy of a translated letter[47] dated 29 January 2020 signed by the Mayor of [Town] that stated as follows:
·“I, the mayor of [Town] certify and attest that [the applicant] has been threatened by Syrian persons because of service he offers to Syrian immigrants.
·The first is threatening is tearing the [vehicle 1] wheels.
·The second threatens in crashing his car.
·The third threatening is when they burned his [vehicle 2] which he was using to get his subsistence from time to time.
·The fourth threatening is when they attacked his house while his family was inside. Till now, he is receiving voice messages, threatening him by sending these messages to his brother. His story becomes known by all relatives and neighbours.”
[47] Document ID number 10751774
The Tribunal has given consideration to the likelihood that much of the information provided and summarised in paragraphs 45 to 47 above is fabricated for the purpose of the hearing or is in essence false and not merely the subject of minor embellishment. The Tribunal had the advantage of seeing the applicant give oral evidence and observing his family in the review hearing room (all secondary applicants). The applicant was a modest, unassuming man who gave his evidence in a forthright practical way without embellishment or exaggeration. His evidence and submissions to the Department and Tribunal have been largely consistent over time. Any differences have been minor and without significance. The later provision of new material is a matter of great consequence. It does have an element of confirmation or corroboration about events that led the applicant to relocate his entire family to Australia. This is a review tribunal. Its processes are inquisitorial. In a court of law much of the evidence led by the applicant would not be admissible. In this review application this evidence is on point, directly relevant to the Application for a Protection Visa, has a significant element of corroboration about it and is consistent with the many statements provided by the applicant in the past. The Tribunal gives this late evidence significant weight.
The Tribunal makes the following findings:
·The Tribunal finds the applicant experienced a loss of livelihood and fears he will face financial hardship if he returns to Lebanon. This loss of livelihood related to vandalism and destruction of the means of earning an income. This vandalism and destruction of property was the result of threats of persecution relating to a different religious faith and perceived political opinion.
·The Tribunal finds the applicant holds a real fear that he will not be able to access medical treatment of the specific type needed by his wife in Lebanon.
·The Tribunal finds the applicant does not have a political opinion, has not expressed one has expressly on repeated occasions attempted to avoid doing so and yet is perceived to hold a political opinion because of his silence and refusal to engage in political or religious discussions when away from home.
·The Tribunal finds the applicant was alienated and as a consequence threatened by his [vehicle 1] driving colleagues as he did not get involved in political discussions.
·The Tribunal finds the applicant was a victim of targeted sectional or sectarian vandalism in relation to the damage to his [vehicle 1] tyres and later destruction of his [vehicle 2]
·The Tribunal finds the applicant holds a real fear of harm from Syrian refugees living in Lebanon occasion by their past actions and threat of future actions.
The Tribunal is satisfied the applicant has been the subject of ongoing threats arising from his religion and perceived political opinion over a period of many years both in Lebanon and whilst away from Lebanon in his pursuit of earning a living as a driver. Those instances are not rare or isolated. They have been repeated and ongoing. The Tribunal accepts as correct the cited country information that the presence of large numbers of uncontrolled and arguably uncontrollable Syrian refugees of a different political opinion and religious persuasion to the applicant is the genesis of his many extant problems.
Whether in truth the threats and harm down to his property have roots in envy, greed, opportunity or are within the realm of religion and middle east politics is largely clear. The Tribunal is satisfied the threats were real. The Tribunal is satisfied the threats were deliberate and purposeful. The Tribunal is satisfied the applicant in his evidence and earlier comments to the Department was sincere in his explanations and commentary.
The Tribunal gives significant weight to the evidence of the applicant.
The Tribunal is aware applicant number 2 suffers from a serious [medical condition] and is in receipt of ongoing treatment. Applicant 2 attends one of the finest [medical condition] clinic institutions in the western world. The Tribunal notes that medial and health facilities still exist and are patronised in Lebanon. Country information confirms that fact. The applicant has limited income that must be stretched in providing for a family of 6 persons. There is little evidence the applicant has sufficient accumulated savings that would fund the type of treatment that is required. The Tribunal notes the late submission of the applicant stated the condition of applicant 2 is terminal. That is not the evidence provided earlier in the proceedings as part of a request for adjournment. There is insufficient evidence for the Tribunal to draw that particular conclusion.
However the Tribunal is satisfied the applicant does suffer from a particularly virulent form of [medical condition]. In a Protection Visa Application there is not a provision for consideration of compassionate or compelling circumstances. The Tribunal did point out to the applicant at the end of the hearing that if relevant he might seek advice from his solicitor as to the utility of an application for Ministerial Intervention essentially on compassionate grounds or alternately make Application for a Medical Conditions Visa for applicant 2 and support visa for the applicant. The current medical condition and treatment plan of applicant 2 are not a relevant consideration in this review application and the Tribunal gives these matters no weight.
The Tribunal is satisfied that the applicant or members of his family would be harmed by Syrian nationals or members of the Shia Alawite sect if removed back to Lebanon because of past threats that arose out of his employment or relating to the fact that he is Sunni Muslim.
With a legal and governance system that is tied to the survival of interest groups in their many and varied forms, responding to past complaints and likely future events the applicant is correct to be concerned as to the utility of any police investigation and response. The harm the applicant faces is not as a result of the laws, but rather threats of harm deriving from the apparently impossible task of controlling different and disparate groups that have the right to abuse the rule of law at will and do so as they have demonstrated in the past. The Tribunal accepts the applicant is at risk of serious harm from Shi’a or Alawite elements because of his religious belief system or perceived political opinion.
For the same reasons the applicant cannot seek protection from the state as the state is either the persecutor, the agent of persecution or a willing bystander to the persecution(5J(2)).
The Tribunal also finds that the applicant cannot modify his behaviour as it is the actions that he has already undertaken in that he has not occasioned the threats but in fact has repeatedly tried to avoid finding himself if a situation where threats or harm can be visited that are known to the authorities that will lead him to face serious harm (s 5J(3)).
The Tribunal finds that the applicant cannot relocate as the entire state of Lebanon is controlled by the authorities (s 5J(1)(c)) and it is these authorities that are the vehicle of threats of harm on an ongoing and repeated basis.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal has also considered whether the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national (s 36(3)). There is no evidence before the Tribunal that citizens of Lebanon such as the applicant have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information and numerous current and topical government and NGO reports, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his religion or perceived political opinion, that being a reason that meets the provisions of s 5J(1)(a) of the Act, if he is removed to Lebanon now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act and that the applicant meets the definition of refugee as set out is s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Secondary Applicants
Applicants 2 to 6 (spouse and children) are members of the family unit of the applicant. The secondary applicants are members of the family unit of the applicant who is a person who satisfies the criteria set out in s 36(2)(a) of the Act
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act and the secondary applicants satisfy s 36(2)(b)(i) of the Migration Act.
Mark Bishop
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2289

17 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

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