2002961 (Refugee)
[2024] ARTA 593
•16 December 2024
2002961 (REFUGEE) [2024] ARTA 593 (16 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2002961
Tribunal:General Member R Timms
Date:16 December 2024
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 16 December 2024 at 12:32 pm
CATCHWORDS
REFUGEE – Protection Visa – Lebanon – race – Palestinian ethnicity – religion – Muslim (Sunni) religion – a stateless Palestinian refugee – fears harm from terrorist groups – fears harm from [Mr A] – would not have access to the medical treatment – medical condition – general conditions in the refugee camp – membership of a social group – being a Palestinian living in Lebanon – satisfied that the applicant is a person in respect of whom Australia has protection obligations – there are not effective protection measures available – applicant has a well-founded fear of persecution – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 46, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 January 2020 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 national of Lebanon, applied for the visa on 25 February 2015. The delegate refused to grant the visa on the basis that he is not owed protection by Australia.
The applicant appeared before the Tribunal on 22 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Evidence before the Department
The Tribunal has before it Departmental [file], which contains a number of file items including but not limited to the following:
· Protection visa application form.
· Supporting declarations and submissions and documents.
· Departmental interview recording.
· The delegate’s decision.
Evidence before the Tribunal
The Tribunal also has before it the online Tribunal file (Tribunal online case reference number 20200217-97626) which contains a number of file items including but not limited to the following:
· Review application form.
· The Tribunal hearing recording.
· Supporting declaration from the applicant.
· Submissions from the applicant’s representative.
BACKGROUND
The applicant’s personal background
The applicant, whose exact birth date is unknown, was born [in] Lebanon in [year] and he is aged approximately [age] years old. He is of Palestinian ethnicity and Muslim (Sunni) religion, and he is married with 11 adult children.
The applicant was born one of three brothers and ten sisters, the eldest of whom were born in Palestine. The applicant and a number of other younger siblings were born in Lebanon after his parents were displaced from Palestine through the 1948 creation of the state of Israel. Of his 12 siblings, the applicant currently has [siblings living in various countries]. His remaining two siblings, who were living in Australia, are now deceased. His parents are both now also deceased.
10.The applicant’s wife remains living in [a] refugee camp in [Lebanon]. Nine of his 11 children also live in [the] refugee camp, with his two other children living respectively in Australia as an Australian citizen, and in [another country].
11.Prior to coming to Australia, the applicant lived most of his life in [the] refugee camp, where he was schooled for approximately eight years before becoming a [Occupation 1], and where he later ran his own [business]. His work history has also included working for approximately 11 years in [Country 1], and for approximately three months in [Country 2]. He has also travelled to other [countries]. Since coming to Australia, the applicant has not worked.
12.The applicant is registered as a Palestinian refugee with the United Nations Relief and Works Agency in the Near East (UNRWA), and with Lebanese authorities, and in Lebanon he holds Palestinian Resident in Lebanon (“PRL”) status.
13.Since coming to Australia, the applicant has been diagnosed with [cancer], and in 2019 he underwent treatment for his [cancer]. He is currently in remission, and has a very good prognosis, and his current treatment plan involves six monthly check-ups including CT scans and blood tests. While he is not currently on any medication related to his cancer, he currently takes [medication].
14.The Tribunal accepts and finds the above matters to be true.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
15.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.
16.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.
Section 5AAA of the Act
20.Pursuant to s 5AAA of the Migration Act, it is for the review applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
21.The Tribunal has applied this provision when considering the applicant's claims and evidence.
Mandatory considerations
22.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.
REASONS AND FINDINGS
23.The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or instead under the ‘complementary protection’ criterion, or is a member of the same family unit of such a person and that person holds a protection visa of the same class.
24.For the following reasons, the Tribunal has concluded that the decision under review should be set aide.
Receiving country
25.The applicant has at all times claimed to be a stateless Palestinian refugee who was born in Lebanon to parents who were displaced from Palestine, and to have been living in [the] refugee camp in Lebanon with his family for a number of years immediately prior to his arrival in Australia on [date] January 2015.
26.The applicant travelled to Australia on an apparently genuine Document De Voyage pour les Refugies Palestiniens issued by Lebanese authorities, a copy of which is contained on the departmental files.
27.The Department found that the applicant was stateless, and that his country of former habitual residence was Lebanon. The Tribunal also finds that the applicant is stateless, and that his country of former habitual residence is Lebanon, and the Tribunal now proceeds to assess his protection claims against Lebanon as his receiving country for the purposes of the Act.
The applicant’s claims
28.In his protection visa application, in relation to his reasons for claiming Australia’s protection, the applicant claimed the following, as relevantly summarised by the Tribunal:
His situation at the time of leaving Lebanon
· the applicant was a very well respected and influential figure within [the] refugee camp, and his vocal and outspoken negative opinion about [Mr A] and [his] armed radical Islamist Jihadist criminal group was well-known throughout the camp.
· he came to Australia because he was very afraid for his safety after a shooting incident and a subsequent warning incident against him, which had both been initiated by [Mr A].
· the shooting incident had occurred on the evening of [date] November 2014, when the applicant and his son-in-law [Mr B] were standing outside a [store] in [the] refugee camp. A man called [Mr C], who was previously known to [Mr B], approached them and called [Mr B] aside for a discussion. During the discussion, [Mr C] pulled a gun on [Mr B], and after a struggle between them the gun was discharged upwards, hurting no one. Some people nearby immediately intervened, managing to grab hold of [Mr C], and the applicant and [Mr B] then managed to escape.
· as they were then returning home after this shooting incident, [Mr B] told the applicant that [Mr C] had told him that [Mr C] had been sent by [Mr A] to threaten the applicant and take action against the applicant because of the applicant’s previous vocal objections against [Mr A] and his criminal group.
· the next day, a cousin of [Mr A] had then visited the applicant and he threatened the applicant not to report to authorities what had happened. The cousin had weapons with him, and he had been sent by [Mr A] to see the applicant.
· [Mr A] had a reputation for hurting people, and the applicant felt very scared after this warning and the shooting incident. The applicant then left his house with his family, and he stayed with his brother [for] a month before he travelled to Australia. He also ceased going to work because he was afraid and it was too dangerous for him to be seen in public.
· he was very afraid also for the safety of his family, but [Mr A] knows that he has left Lebanon, and so no one has approached his family.
· he had also left Lebanon because life as a Palestinian refugee in Lebanon has been full of problems:
·Palestinian refugees in Lebanon do not have civil rights, and they are not allowed to work, and they are denied basic rights including the right to live a life which is fit for a human being, and the right to live in a safe environment.
·[the] refugee camp where he has been living is densely populated with tens of thousands of refugees living in the space of a square kilometre, and where they have a lack of water and lack of electricity, and most importantly a lack of security.
·their lives living as refugees in [the] refugee camp have continued to deteriorate and continued becoming more unbearable and difficult due to events including a 2007 mass influx of refugees from [another] refugee camp after fighting had broken out in that camp and the Lebanese army had demolished a number of homes in that camp. In around 2013, refugees from the Syrian conflict also started to flood into their camp bringing with them dangerous arms and radical ideologies. These influxes have so overpopulated camp and stretched the already limited resources of the camp, and the applicant and his family have been experiencing physical, psychological, and financial hardship and suffering from living in the camp.
·while they have received assistance from UNWRA, including education for their children and limited basic medical assistance, that assistance is very limited and does not include financial assistance.
If he is to return to Lebanon
· he has already experienced harm at the hands of [Mr A] and his criminal group in Lebanon, and he fears that further harm may come to him and his family if he returns to Lebanon. Lebanese authorities are unwilling and unable to protect him and his family from [Mr A] and his criminal group.
· he also fears other emerging security threats in Lebanon, such as terrorist groups which authorities find difficult to protect the Lebanese people against, let alone Palestinian refugees.
· he also fears harm from terrorist groups active within [the] refugee camp.
· he also fears being subjected to:
oabject or deeper poverty.
odenial of basic human rights.
owidespread and systematic discrimination.
odenial of citizenship and/or identity documents.
orestriction of mobility.
odenial of property ownership.
odenial of access to social services.
odenial of access to public education.
oprohibition from working in most professions.
29.On 31 October 2018, the applicant was interviewed by a delegate of the Department of Home Affairs, where the applicant confirmed his claims, and on 28 January 2020 the delegate refused to grant the first applicant a protection visa, not being satisfied that he was a ‘refugee’ as defined by the Act. This was on the basis that the delegate was not satisfied that the applicant’s claims in relation to [Mr A] were credible, and on the basis that in relation to the applicant’s residual claims of being a Palestinian resident in Lebanon, the delegate was not satisfied that there was a real chance that the applicant would face serious harm. The delegate also considered the applicant’s residual claims of being a Palestinian resident in Lebanon under the complementary protection provisions, but on the evidence the delegate was not satisfied that there was a real risk that the applicant would suffer significant harm.
30.On 4 April 2024, the applicant wrote to the Tribunal requesting its consideration on medical grounds of affording an expedited decision to his review application. In support of his expedition request, he provided a letter from a Melbourne-based General Practitioner (GP) called [name], which relevantly stated as follows:
· the applicant had been diagnosed with [cancer] and in 2019 had undergone [an operation]. Since then, the applicant had been undergoing follow-up treatment with [a] Cancer Centre with no evidence of recurrence.
· the applicant has a very good prognosis with no chance of recurrence of his condition.
31.In a statutory declaration declared by the applicant on 11 July 2024, the applicant provided the following further claims and evidence in support of his protection visa application, which the Tribunal relevantly summarises as follows:
· he continues to be a practising Sunni Muslim.
· he is currently retired, and he resides in Australia with his son who is an Australian citizen.
· while his previous claims about being shot and threatened by [Mr A] are true, given the passage of time he is not certain that [Mr A] continues to pose a real threat.
· as a Palestinian refugee, while he is permitted to reside on a permanent basis inside [the] refugee camp in Lebanon, he does not have a legal right to reside in Lebanon outside that camp. Attempting to relocate or reside on a permanent basis outside [the] refugee camp would inevitably result in his forced repatriation back to [the] refugee camp.
· if he must return to Lebanon, the applicant fears being exposed to severe discrimination, and to being treated with suspicion by the Lebanese population and by Lebanese security forces due to being Palestinian, and also to being imputed with maintaining political views which are adverse to the security interests of the state of Lebanon which often occurs. Discrimination occurs particularly at times when battles are occurring between rival militia groups inside the refugee camps, and Lebanese security forces lockdown the camps which deprives outside access to camp residents for the duration of the fighting. This would endanger his life, given his need for unhindered access to medical care facilities outside the camp.
· if he must return to Lebanon, he also fears serious harm to himself through general criminality in [the] refugee camp. Life in the camp has always been extremely difficult, however more recently there has been a significant deterioration in the security situation inside [the] camp in relation to criminality, mainly attributable to the deteriorating economic and political situation in Lebanon:
o incidents of armed robberies, kidnapping and killing of individuals at the hands of armed militias and other criminal elements who operate inside the camp, which have been an enduring feature of [the] camp, have also escalated dramatically. They have become an almost daily occurrence whereby rival armed militias and other criminal elements robber, kidnap or kill innocent individuals simply for money. Extortion of money from families of kidnapped victims is also becoming a common feature of life within [the] refugee camp.
o the targeting of vulnerable Palestinians inside the camp including women and children for harassment, kidnapping, extortion and other violent crimes at the hands of these armed militants, armed groups in criminal gangs is also dramatically escalating.
o the situation is made worse by the fact that the Lebanese security are legally precluded from entering Palestinian refugee camps, including [the] camp, to restore law and order or to detain perpetrators of crimes that have been committed against the camp population.
o in the absence of state protection, he would continue to be exposed to increasing violence, lawlessness, armed robberies and extortion, and he would be left at the mercy of various criminal gangs in [the] camp. He would be left to resort either to defending himself and his family or alternatively to rely on the protection of various Palestinian militants and armed groups who operate inside the refugee camps. They currently have no political affiliation with these militants and armed groups, and they also do not wish to seek the protection of these militants and armed groups because it is these people who are behind these crimes and they do not wish to support them in this.
· the applicant also fears harm to himself and to his family through being caught up in the ongoing conflict between a number of rival factions within [the] refugee camp who have been locked in a long-standing fight for supremacy of control over the camp. Incidents of rival militant street conflict and gang warfare are a persistent and enduring feature of life inside [the] camp, and they have significantly escalated since the applicant’s departure from Lebanon:
o these incidents occur on an almost weekly basis, and mostly at night. They often play out in gunfire and in door-to-door street fighting and bombings, which expose the entire camp’s population to serious threats to their personal safety as well as damage to their homes and personal property.
o his own home has suffered extensive damage on numerous occasions as a result of the street violence.
o when this street violence erupts, his family are forced to lock themselves inside the bathroom. When inside the bathroom, they are all the time hoping and praying that they will come to no harm and that the violence will cease, and all the time they are also being tormented and terrified by the sounds of shootings and bombings.
o as Lebanese security forces are legally precluded from entering [the] refugee camp and from being able to curb such violence, the prospect of rival militia and gang street violence coming to an end in the foreseeable future is highly unlikely, and he fears that he would continue to be left at the mercy of various armed militias in [the] camp.
· the applicant also fears harm to himself through being deprived of adequate medical care inside [the] refugee camp:
o since coming to Australia, he has been diagnosed with [cancer]. In 2019, he underwent treatment for his [cancer]. His current long-term treatment plan involves six monthly check-ups including CT scans and blood tests. He is also taking [medication]. While his cancer is currently in remission, his treating specialist has advised him that he needs to continue strictly to adhere to his treatment plan, so as to continue to monitor his condition in case of any relapse. He has also been advised to avoid stress and anxiety.
o the applicant also suffers from hypertension, and is taking medication for this condition.
o he would not have access to the medical treatment which is required for his medical condition inside [the] refugee camp, where there are inadequate health resources and where only basic health care is provided.
o medical facilities with appropriate expertise and equipment are only located outside [the] refugee camp, but lockdowns of his refugee camp by Lebanese authorities can occur during times of street conflict within the camp. These lockdowns would make him extremely vulnerable to a severe deterioration of his medical condition and/or to his life being endangered, in case he was prevented through any lockdown from leaving the camp to access required healthcare facilities or emergency healthcare facilities. As a cancer patient, he requires ongoing and unhindered access to suitable healthcare providers which would not be possible living inside [the] refugee camp.
o the unliveable living conditions in [the] refugee camp could also have a drastic impact on his health because his body’s own immunity system has been compromised by his cancer treatment:
§ the camp is approximately [size], and it is overcrowded with approximately [number] Palestinian residents as well as over [number] Syrian refugees
§ this scale of overcrowding has resulted in a marked deterioration of the camp living conditions. This includes residents in the camp being exposed to various diseases, severe pollution, unsanitary conditions, and adequate access to food and water and electricity.
32.At hearing, the applicant provided further evidence in support of his claims for Australia’s protection, which the Tribunal relevantly summarises as follows:
· when his parents moved from Palestine to Lebanon, they were extremely poor and were being supported by the United Nations (UN). However, because he and his brothers had later been able to travel to and work in other countries such as [Country 1] where he had lived and worked for a number of years, his and his family’s economic situation had become better.
· he had also travelled to a number of other [countries].
· after having begun his career as a [Occupation 1], prior to coming to Australia he was running his own [business]. His business was a successful [business].
o The Tribunal put to the applicant that even though he was living in a refugee camp where the conditions would have been quite terrible, it seemed to the Tribunal that he was still able to lead a fairly affluent life and that his family was relatively well off, given he had his own [business] and that he had been able to travel overseas. The applicant responded that his family had been living a decent life, but not an affluent life.
o The Tribunal asked the applicant whether living in [the] camp was a matter of choice for him, or whether he had no choice about this. The Tribunal initially understood the applicant to state will that it was his choice that he was living in the camp. After further questioning on this issue of whether the applicant had been living in [the] camp as a matter of choice however, and also after oral submission on this issue by his representative, the Tribunal then understood the applicant to be stating that while it might unofficially be possible for him to live outside the camp, this would not be legal, and if he was to be found living outside the camp by Lebanese authorities he would then be repatriated back to the [the] camp which is where his officially designated residence is, with a reprimand and possible penalties. He stated that it is also not safe for Palestinians to live outside the camp.
· the applicant has travelled to Australia twice including in 2012 and in late December 2014 with arrival in Australia on [date] January 2015. His sister’s daughter, who lives in Melbourne, paid for his first ticket to Australia. His second ticket to Australia was paid for by his son in Australia, who is now an Australian citizen.
· the reason he travelled to Australia for his first visit was to visit his four sisters who were in Australia.
· the first reason he travelled to Australia for his current second visit was because there had recently arisen an issue between him and a group of Jihadis who were living around the [the] refugee camp.
· the second reason that he travelled to Australia for his current second visit was because there is nowhere which is safe in [the] camp for Palestinians.
· in regard to the second reason that he travelled to Australia for his second current visit, at that time the applicant had been working and had had a decent life, and he was also a person of influence in the camp known to everyone in the camp, and he had also been a person who liked to express his opinions on things. He was vocal in expressing his opinion against gangs and terrorist activities, and about how he wished to live in peace and quiet. As part of this, [Mr A] who was the head of that group and who was Lebanese, took the applicant’s vocal opinions as a threat against himself and his gang, even though the applicant had not directly mentioned [Mr A] or referred to [Mr A]. As a result, in September 2014, [Mr A] sent a person called [Mr C] to the applicant’s house to threaten him and to tell him to cease expressing his anti-gang and anti-terrorist opinions.
o the Tribunal asked the applicant why, in a camp of tens of thousands of people, where he had expressed only general views about being against terrorist activities and gangs, he had been targeted by [Mr A]. The applicant stated that this was because he was known as a person of influence in the camp.
· [Mr C] had warned him not to be vocal about terrorism or about the gangs, and the applicant had just listened to [Mr C]’s warning, and then [Mr C] had left. This was the first time that he had seen [Mr C], who had been previously been unknown to him, and also the last time. Afterwards, the applicant’s son-in-law [Mr B] had told the applicant that the visitor’s name had been [Mr C]. [Mr B] told the applicant that he and [Mr C] both already knew each other, from a different refugee camp where they had both previously lived.
o in response to questioning from the Tribunal about whether there had been one incident or multiple incidents which had caused him to leave Lebanon, the applicant stated that there had not been multiple incidents which occurred before he decided to flee from Lebanon, but just this one event or incident only when [Mr A] had sent [Mr C] to his house to warn him. After this warning, and because of the gang’s reputation, the applicant knew the situation was very serious for him and he had felt very frightened and he decided to travel to Australia again. He stayed living in his own house in the camp until he travelled to Australia.
o the Tribunal then asked the applicant about his statutory declaration of 25 February 2015, where in the Tribunal’s view he had described events prior to his coming to Australia very differently to his oral testimony. In his oral testimony, he had confirmed to the Tribunal that there was only one incident or event prior to coming to Australia, and he had made no mention of any attempted shooting, and he had stated that he had stayed in his own house prior to coming to Australia because he had had nowhere else to go. However, in his statutory declaration, he had declared that:
·in Lebanon, he had been shot at by one man, and threatened by another man.
·in regard to the shooting, [in] November 2014 he was outside a [shop] with his son-in-law [Mr B], and a man called [Mr C] had approached them and called out to [Mr B], and that [Mr C] and [Mr B] were then discussing something and [Mr C] pulled a gun on [Mr B], and [Mr C] then tried to shoot at [Mr B], but [Mr B] grabbed his arm and caused the gun to shoot upwards.
·in regard to being threatened, the next day [Mr A] had sent his cousin to visit the applicant, who threatened the applicant not to report to authorities what had happened.
·after the shooting incident, he had left his house with his family and stayed at his brother’s house until he came to Australia.
othe applicant responded by stating that his declaration had been correct, and that this all had happened 10 years ago, and that he had not told the Tribunal the full story but had told the Tribunal only about the second incident, and that it was correct that he had moved to his brother’s house for one or two months before travelling to Australia.
· he was not a member of any political party or organisation when he was in Lebanon.
· if his review is not successful, and if he must return to Lebanon, he would return to [the] refugee camp.
· the first reason that he cannot now return to Lebanon is because in 2019 he was diagnosed with [cancer], and after which he underwent treatment for his cancer. This has included radiotherapy and chemotherapy, as well as an operation, and this has all been very difficult. He is in remission, but he still goes to the hospital regularly, and he is currently awaiting [an] operation. In [the] camp, only very basic medication is available, and medication for his condition would not be available, and he would have to go to somewhere outside the camp with facilities for his [treatment]. While he does not currently take any specific medication for his condition, every six months he must undertake both a blood test and a Computed Tomography (CT) scan. Also, since undergoing his [cancer] treatment, he now has significant [difficulties], and with bathing. He is concerned that if he must return to [the] camp, there are no facilities available for his CT scans or his specialist blood tests, and no specialists available who can review and monitor his condition. He is also concerned about not being able to leave the camp to see a doctor if the camp is surrounded and locked-down by Lebanese authorities, because if he required urgent medical treatment during a time of lock-down he could lose his life.
o The Tribunal asked the applicant whether he could travel outside the camp and obtain his required treatment every six months, including obtaining a CT scan and blood tests as well as any required specialist help and treatment, using his own financial resources and travelling for example into nearby Tripoli. The applicant responded by stating that if there were issues such as shootings, which occur on a daily basis in the camp, the security situation in the camps could prevent him from travelling outside the camp for this treatment.
o The Tribunal further put to the applicant its understanding that he could generally obtain his required medical treatment outside [the] camp, including ongoing scans and blood tests and other required treatment, and that because of this the Tribunal might consider that there would not be real chance of serious harm, or a real risk of significant harm, happening to him because of his medical condition. The applicant responded by stating that since his operation five years ago, his situation has been improving, however because of the operation he now has a [condition] and he has been on the waiting list at [an] Institute to have his [operation], and he is determined to have that operation by the same people at that hospital who operated on him previously. He further stated that medical care and treatment generally in Lebanon has collapsed, and that he could not be properly looked after there and he would die.
o The Tribunal then discussed with the applicant that when considering whether he might qualify as a refugee because of the harm he might suffer because of his medical condition, if he must return to Lebanon, among requirements the Tribunal would need to be satisfied that the harm would be harm which is directed at him by a third party for reasons of his race, religion, nationality, political opinion, or membership of a particular social group. It told the applicant that it might consider the harm would not be directed at him for any of these convention reasons and it invited his comment. The applicant responded by stating that returning to Lebanon will be a threat to his life and his safety, and there is nothing more important than someone’s life.
o The Tribunal then further discussed with the applicant that when considering whether he might meet complementary protection requirements because of the medical related harm that he might suffer on his return to Lebanon, among requirements the Tribunal would need to be satisfied that that harm was significant harm for the purposes of the Act, which generally required someone intentionally causing harm through their act or omission. However, the Tribunal might not consider that the medical harm which he might experience was harm caused through someone intentionally trying to cause him harm, such as someone intentionally causing him severe pain or suffering or intentionally torturing him, or such as someone intentionally causing him extreme humiliation, or someone arbitrarily depriving him of his life or inflicting the death penalty on him. It invited the applicant’s comment on this, who responded by stating that he fears for his life because of the situation there, and when the camp is encircled because of clashes within the camp he could not leave to have his medical condition treated.
· the second reason why he cannot return to Lebanon is because he is concerned for his safety and his life, because he could be attacked and beaten or robbed or killed by [Mr A]’s people.
o The Tribunal put to the applicant that it had significant difficulties with the credibility of his claims in relation to [Mr A] because of conflicts between his oral evidence to the Tribunal and his written evidence. The applicant responded by stating that he had made a mistake but that he was honest about what had happened and he was telling the truth.
o The applicant’s representative then brought to the Tribunal’s attention paragraphs 16 to 10 of the applicant’s statutory declaration which the applicant had declared on 11 July 2024, where the applicant had stated that while his earlier claims regarding [Mr A] were true, given the passage of time he is not certain that [Mr A] continues to pose a threat to him. The Tribunal then discussed with the applicant that, if the Tribunal after all accepted the credibility of his claims in relation to [Mr A], then when also further considering whether he might qualify for a protection visa because of any threat of harm posed to him by [Mr A], the Tribunal would need to be satisfied under the refugee criterion that there was a real chance of serious harm to him, or under the complementary protection criterion that there was a real risk of significant harm to him, because of [Mr A]. However, given these paragraphs in his statutory declaration, the Tribunal might not be satisfied about any real chance or real risk of such harm to him from [Mr A]. The Tribunal invited the applicant’s comment on this possible consideration by the Tribunal, and the applicant responded by stating that he had no comment.
· the third reason why the applicant cannot now also return to Lebanon is because he is concerned about his safety and survival because of general conditions in the refugee camp, as well as the security situation inside the camps and outside the camps. In regard to the security situation inside the camps, Lebanese authorities have no control over this with Lebanese authorities being unable to enter the camps to punish or arrest offenders in the camps. On a daily basis in the camps, Palestinians live with the threat of weapons and the problems which happen there inside the camp between groups or individuals, such as shootings between individuals when you might be walking by and you could lose your life, or shootings between families where people die, and when these happen the government will surround the camp. For example, just two months previously in [the] camp in the same street where his family lives, there had been a problem between two families who then shot at each other and [someone] died because of that shooting. Most people have weapons inside the camp, and he fears for his life, and for his family’s lives, and the Lebanese government have no authority in the camp and they cannot protect him and his family. In regard to general living conditions in the camps, there are issues around lack of access to electricity and water and proper health care, and electricity and water, and no good food when the government encircles and locks down the camps.
o The Tribunal put to the applicant that it might not consider that any harm which he would suffer because of the security situation in his camp and because of general conditions in the camp including lack of access to services and health care, would be at that high level of serious harm or would meet the technical definition of significant harm, and it invited the applicant’s comments on this possible consideration. The applicant responded by stating that weapons are everywhere, as well as problems between families, which poses a threat to his life. As to whether the harm he would suffer in the camp might meet the technical definition of significant harm, the applicant responded by stating that if he is walking in the camp, and he was killed when two individuals were shooting at each other, then this would be significant harm. The applicant’s representative also further responded on behalf of the applicant, submitting that:
· because of the absence of Lebanese authorities from the camp, this raises a number of issues for the applicant, as well as all other Palestinian inhabitants of the camp, including the breakdown of law and order in the camp. This exposes the applicant to criminality as well as significantly to ongoing armed clashes between rival militias and Palestinian groups in the camps, where his very life is threatened and endangered by such violence. This lack of available protection is a fundamental breach of the applicant’s right to have protection when threatened.
· more significantly, because of his medical condition, he has increased vulnerabilities, and during times of armed clashes within the camps, Lebanese authorities will invariably lock down the camp for a period, preventing camp inhabitants from leaving the camp. The applicant’s health condition is such that he can only be treated in larger centres outside the camp like in Beirut, and in a situation where the applicant needed emergency treatment because of his health condition, and where there was lockdown, his life would be endangered.
· with lack of will on the part of Lebanese authorities to make conditions liveable within the camps, there are also many issues including overcrowding, lack of electricity, lack of water, lack of adequate sanitary conditions, which will be likely to have an adverse effect on the applicant’s overall health given his particular health vulnerabilities because of his medical condition. The Palestinian camps have been described as being no more than prison camps, and the conditions of these camps expose the inhabitants to many problems not least of which are problems detrimental to their health.
· the Tribunal must also consider the applicant’s claims in light of his particular medical issues, and his need for ongoing medical treatment for the foreseeable future.
o The Tribunal put to the representative that it had understood from the applicant’s oral testimony that he had actually lived a relatively decent life before coming here, even though he was living in the camp, and it invited further comment. The representative responded by stating that the applicant is no longer working and his financial situation is not as it used to be, and that he had to seek financial assistance from relatives to be able to come to Australia, and his age and his health will now all impact the life he will be able to lead in the camp going forwards. The Tribunal further put to the representative its understanding that the applicant had a number of children including in Australia and [another country], and that his children might be able to help support him with a better lifestyle. The representative responded by stating that even with any financial assistance, the general living conditions in the camp will still affect him and be detrimental to his health him no matter what his financial status is, including overcrowding, and rampant diseases due to this overcrowding, and lack of basic infrastructure and utilities like electricity and water.
o The Tribunal also put to the representative its understanding that the applicant’s current medical condition is such that urgent medical treatment is not required, and that six monthly check-ups might be able to wait a month or two if the applicant’s camp was in lockdown. The representative responded by stating that while he is not a medical person, he understands that it is possible that the deplorable conditions in the camp could adversely affect the applicant’s current medical condition such that emergency treatment is after all required.
· in regard to the security situation outside the camps, a Palestinian person like him might be attacked if he was to go outside the camp if people thought he might have money.
o the Tribunal discussed with the applicant its understanding that prior to coming to Australia, he had been moving around relatively safely outside the camp with his business, without being attacked. The applicant responding by confirming that he had been, but once the incident had happened with [Mr A], he could no longer do this.
· the fourth reason why he cannot return to Lebanon is because of the ongoing war in Lebanon between Israel and Hezbollah, with the deteriorating security situation between because of this. He fears that as a member of the populace, he might be killed or injured through that deteriorating situation. He also fears that as a Palestinian living in a Palestinian refugee camp, refugee camps are more likely to be targeted by Israel than other parts of Lebanon, and he is concerned about being bombed in the camp. The applicant further stated that a Palestinian refugee camp called Ein el Hilweh in Saida had been bombed by Israel just the day before the Tribunal hearing. Palestinians had died in this bombing, and this could happen to any of the other camps at any time.
o The Tribunal discussed with the applicant that while it acknowledged that the situation with the conflict between Israel and Hezbollah would be terrible and very frightening for people in the camps, when considering whether he might meet the refugee criterion or the complementary protection criterion because of harm to him from that conflict, the Tribunal needed to be satisfied that there was a real chance or real risk of harm to him from that conflict. The Tribunal discussed with the applicant that it might not consider that there was a real chance or real risk of harm to him from that conflict, and it invited the applicant’s response on this. The applicant responded by stating that the camp might be targeted or bombed by the Israelis at any time, for any reason, and he could lose his life because of this.
o The Tribunal then further put to the applicant that under the refugee criterion, the Tribunal would need also to be satisfied that any harm experienced by him through Israeli attacks would be harm being targeted at him by the Israelis because of his general membership of a group, such as because of him being Palestinian, but the Tribunal might instead consider that any harm suffered by him would be collateral harm with the Israeli’s not targeting Palestinians for reason of them being Palestinian, but instead targeting particular other elements within the camp. It invited the applicant’s comment on this. The applicant responded by stating that when Israel targets those other specific people, those targeted people are in the camp with other people, and they will all be victims.
§ The applicant’s representative then commented that while the applicant has made his claim about Israel attacking the camps, the representative would be pressing the Tribunal more to consider the conditions inside the camp, including the frequent outbreaks of militia conflicts and violence where he would be devoid of effective protection from Lebanese authorities in the camp and at significant risk.
o The Tribunal then further put to the applicant that under the complementary protection criterion, the Tribunal would need also to be satisfied that any harm experienced by him through Israeli attacks would meet the technical definition of significant harm, such as someone intentionally torturing him or intentionally trying to cause him pain and suffering, and the Tribunal might consider that any harm caused to him was collateral harm of him rather than intentionally caused harm to him. The Tribunal invited the applicant’s response on this consideration. The applicant responded by stating that given that the Lebanese authorities cannot enter the camp to protect him, he is under the threat of being a target.
· the fifth reason he cannot now return to Lebanon is because he has now been away for ten years from [the] camp, and things have changed now. His community there will now be very different, and many of his friends may not be there, and he is used to living now in a country like Australia.
o The Tribunal discussed with the applicant that when considering whether he might qualify for a protection visa because of any harm which he might suffer because of his community having changed in the ten years he has been away, the Tribunal would need to be satisfied that the harm he would experience would be at the level of serious harm or significant harm. The Tribunal invited the applicant’s comment on its possible consideration that the harm he would experience from his community having changed would not be at the level of serious harm or significant harm. The applicant responded by stating that this was a secondary concern.
· these reasons all mean that his life is in danger if he must return to [the] camp, and the situation will not improve but it will only get worse.
· the applicant summed up by stating that what he had stated during the hearing was credible and authentic, and he hopes his review application is successful.
· the applicant’s representative summed up by drawing the Tribunal’s attention to evidence discussed in the primary decision record about conditions in the camp, and to the well-established fact that residents in the camps including [the] camp are totally without protection from Lebanese authorities, and their lives are threatened by militants and by armed clashes which are an enduring feature of the camps, and about which reports are heard every couple of months, and which expose the camp’s population and the applicant to extreme violence, killing, robberies, kidnappings, and destruction of property. Without any protection from Lebanese authorities, the applicant and other residents are extremely vulnerable and must either try to fend for themselves or else rely on the protection of Palestinian factions within the camp, with whom the applicant currently has no alignment.
· the applicant’s representative also stated that all the claims for the Tribunal’s consideration have been put in the applicant’s statement and in the applicant’s oral evidence at the hearing, and he and the applicant now await the Tribunal’s decision.
33.On 22 August 24, post-hearing, the applicant’s representative wrote to the Tribunal in further submission, confirming:
as stateless persons, Palestinians are generally denied all basic and fundamental human rights
within [the] refugee camp, they are also denied the most basic human right of access to state protection, which puts them in an exceedingly perilous situation given the unrelenting exposure of camp inhabitants to criminality and violence by rival militia groups, and it makes them subject to serious abuse and exploitation.
in general, Palestinians in Lebanon belong to an economically disadvantaged social class, and as such they constitute an extremely vulnerable and marginalised population. They cannot enjoy any civil or political rights, and they have no access to Social Security or to the right to work in the formal work sector. They also face social prejudice and marginalisation in Lebanon, and being without nationality they are also legally precluded from property ownership, registering houses or access to basic healthcare.
it is a fundamental principle that other forms of harm different to the loss of life or liberty can constitute persecution, including the intentional disregard of human dignity, or in appropriate cases restrictions on rights conventionally guaranteed in democratic societies.
on a cumulative basis, being denied effective state protection inside the refugee camp, facing deplorable living conditions in the camp, facing lack of access to basic services and healthcare, as well as discrimination and other restrictions which the applicant will face in Lebanon, all amounts to an insufferable situation for the applicant and should be recognised as amounting to serious harm.
the applicant’s vulnerability to serious harm which arises by operation of Lebanese law, does not arise from laws of general application, but instead from laws and policies which impact adversely on Palestinians and which are not applied to the general Lebanese population.
the fact that the applicant may have access to some financial support from some family members, in the absence of state protection, does not negate the applicant’s exposure to criminality, lawlessness, unrelenting violence from rival militia, and lack of a legal protection framework. It also does not prevent the applicant’s exposure to overcrowding, disease, inadequate access to basic services, inadequate health care, restrictions on freedom of movement, and serious official and societal discrimination.
the applicant’s vulnerabilities would be most evident when confronted with the urgent need to seek medical attention at healthcare facilities situated outside the camp, during periods of lockdown of the camp because of rival militia fighting. Given the seriousness of the applicant’s health condition, such a situation is not implausible.
34.On 29 August 2024, the Tribunal wrote to the applicant seeking clarification about his current medical condition, and about the possibilities of him seeking required medical treatment and medications in greater Lebanon outside the refugee camp, and about possibilities of the applicant moving to live in Lebanon outside the refugee camp, just as significant numbers of Palestinians currently do.
oThe applicant’s representative responded by confirming the Tribunal’s understanding of the applicant’s medical condition, and by confirming that while the applicant might be able to access required medical treatment and medications by travelling outside the refugee camp, extended lockdowns in his camp could delay the applicant’s access to such treatment and medications which could pose a serious threat to the applicant’s health.
oIn regards to whether the applicant could relocate from the camp to live in a different part of Lebanon on, it was submitted by the representative that in the circumstances of the applicant’s case this would be unreasonable and impractical. The reasons for this unreasonableness and impracticality include that his wife and two unmarried sons would need to relocate with him in order for him to be provided with much-needed physical and financial and emotional support, and because of significant practical challenges which would be faced by the applicant in finding suitable accommodation for him and his family, including the cost of such accommodation, and because of the lack of access to public services and social services for Palestinians outside the camps, and because of work restrictions which would be faced by the applicant and by his family members outside the camps, and because of societal discrimination which would be faced by the applicant outside the camp which could affect the applicant’s capacity to find suitable housing as well as suitable employment.
35.On 3 October 2024 and 6 October 2024, the applicant’s representative made further submission to the Tribunal that the current war in Lebanon has displaced hundreds of thousands of Lebanese civilians, and the impact of such a large-scale displacement would affect the applicant’s ability to internally relocate and find suitable alternative occupation, further making it impractical, as well as dangerous.
36.On 6 October 2024, the representative provided the Tribunal with a copy of a United Nations article posted on 26 September 2024, which stated that 90,000 people in Lebanon had been displaced in the last 72 hours because of Israeli shelling. The representative submitted that since publication of that United Nations article, Israeli airstrikes had intensified resulting in hundreds of thousands more Lebanese civilians being displaced, resulting in further humanitarian crisis and further critical demand for housing, making the likelihood of the applicant being able to find accommodation negligible. Given also the growing number of Lebanese towns and cities being targeted by the airstrikes, the options for relocation to a safe place were diminishing daily.
37.On 25 November 2024, the applicant’s representative provided the Tribunal with a World Health Organisation (WHO) report dated 22 November 2024, reporting that the conflict in Lebanon included attacks on both healthcare and healthcare workers, directly impacting one in 10 hospitals in Lebanon, causing further strain on an already overburdened system, with the country’s health system being under extreme duress, and with it being crippled at a time when those whose lives depend on it need it most.
Findings
Credibility
38.When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the evidence, and the Tribunal acknowledges the importance of adopting a reasonable approach in its findings in relation to the credibility of evidence. In Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; (1996) 40 ALD 445, the Full Federal Court made comments about determining credibility, and the Tribunal takes particular note of the following comments provided by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
39.The Tribunal further acknowledges that difficulties are often faced by genuine asylum seekers in being able to support their claims by documentary evidence or other proof, and it acknowledges the importance of giving the benefit of the doubt to asylum seekers whose account appears generally credible but who are unable to substantiate all of their claims. In relation to this, the Tribunal accepts and applies in its findings process the credibility-related guidance provided by the United Nations High Commissioner for Refugees:
…if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts[1].
[1]The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at paragraphs 196 and 204).
Does the applicant fear serious harm on return?
40.The Tribunal accepts the applicant’s oral evidence that if he must return to Lebanon, he would return to live in [the] refugee camp, where his wife and most of his 11 children currently live, and where he has lived all his life apart from times he has been outside Lebanon.
Fear of harm through being a Palestinian living in Lebanon
41.While the Tribunal has significant difficulties with the credibility of the applicant’s claims in respect to [Mr A], the Tribunal generally accepts as credible the applicant’s claims in relation to his own situation as a Palestinian living in Lebanon, including as a Palestinian living in [the] refugee camp.
42.The Tribunal accepts that the applicant genuinely fears harm due to being a Palestinian living in Lebanon if he must return to Lebanon, including:
· being exposed to severe discrimination, resulting in him being part of an extremely vulnerable and socially and economically disadvantaged and marginalised underclass of the population in Lebanon.
· being subjected to an ongoing risk of harm including serious injury and death through rampant criminality in the [the] refugee camp where many people have weapons, including through armed robberies, kidnappings, extortion, shootings, killings, and other more extreme forms of violence which occur very frequently, and over which Lebanese authorities provide no protection to camp residents.
· being subjected to an ongoing risk of harm including serious injury and death, and including also serious damage to his residence, through rampant fighting between different rival armed militant factions within [the] refugee camp, which occurs regularly and which will often involve gun fire and bombings and door-to-door street fighting, over which Lebanese authorities provide no protection to camp residents, with his family also regularly needing to barricade themselves in their bathroom to try to protect themselves from harm.
· being subjected to dire conditions in [the] refugee camp, including severe over-crowding, unsanitary conditions, disease, lack of access to proper health care, and lack of adequate access to water and electricity and other basic services.
· being subjected to camp lock-downs by Lebanese authorities during times of occurrence more extreme violent clashes between factional Palestinian militant groups with the camp.
· being imputed with political views which are adverse to the security interests of the state of Lebanon, and being treated with suspicion by the Lebanese population and by Lebanese security forces due to being Palestinian.
43.In accepting the credibility of the applicant’s claims genuinely to fear this harm, the Tribunal has given strong weight to the most recent DFAT Country Information Report on Lebanon which includes the following extracts[2] in relation to Palestinians Resident in Lebanon (PRL):
o Between half and two-thirds of PRLs reside in 12 officially designated camps and 156 informal settlements dispersed throughout Lebanon. These camps are overcrowded, and the people living in them suffer from poverty and decaying infrastructure.
o Under arrangements with the Lebanese Government, Palestinian authorities have responsibility for the camps, including security, and administration is left to competing Palestinian political factions. Violent conflict between factions is common in some camps. The Lebanese Armed Forces (LAF) are not permitted to enter the camps.
[2] Country Information Report for Lebanon, Department of Foreign Affairs and Trade (DFAT), 26 June 2023, pages 15-16.
o For political reasons, both Lebanese authorities and the PRLs themselves have long opposed moves to naturalise PRLs. Accordingly, despite their longstanding presence in Lebanon, PRLs remain excluded from key aspects of social, political, and economic life.
o While free to move throughout the country, PRLs often face entry and exit controls to the camps, which authorities often tighten due to security concerns. They are prohibited from legally acquiring, transferring, or inheriting property, and cannot bring building materials into camps to repair their homes. PRLs are unable to access Lebanese public education, health or social services, and are generally dependent on UNRWA and NGOs for most aspects of their lives.
o PRLs are prohibited from working in the Lebanese public sector and in thirty-six specified professions, including medicine, law and engineering; and skilled and semi-skilled jobs such as fishery and public transportation (although they are free to pursue these professions inside the camps)…PRLs are permitted to work formally in other professions, however, require an annual work permit and an employment contract to do so…[which] involves a lengthy administrative process, and often depends on the goodwill of the employer. Very few PRLs have either a work permit or an employment contract.
o These work restrictions have contributed to a low PRL participation rate in the formal economy. Over 85 per cent of the PRL workforce works in the informal sector, with most in menial, low-paying jobs concentrated in commerce and construction, or in occupations such as agricultural labourers, sales, service workers, and cleaners. Informal labour renders PRLs more vulnerable to exploitative working conditions: most receive no health coverage, paid holidays, or sick leave, and do not have any pension entitlements. In general, PRLs do not receive the same remuneration as their Lebanese counterparts for equivalent work. The Syrian conflict and the economic crisis have significantly increased competition for jobs in the informal sector, which has disproportionately affected PRLs.
o In 2022, the UN estimated the poverty level among PRLs to be 86 per cent. Furthermore, the recent presence of large numbers of Syrian refugees has led some Lebanese to become simultaneously less tolerant towards the long-standing Palestinian refugee community.
o DFAT assesses that PRLs face a high risk of official and societal discrimination as they are unable to access public services and employment opportunities available to Lebanese and foreigners of other nationalities, and are unable to participate fully in social, political, and economic life.
44.In accepting the credibility of the applicant’s claims genuinely to fear this harm, the Tribunal has also given strong weight to a March 2023 report prepared by the UK charitable research organisation Asylos, entitled Lebanon: Stateless Palestinians[3]. That publication combines numerous sources and commentaries to report on the situation of Palestinians in Lebanon, including the following extracted sources and commentaries:
[3] Lebanon: Stateless Palestinians | Asylos
o PRL [Palestinians Resident in Lebanon] do not have the same rights as Lebanese citizens, other refugees or foreigners and fall into the so-called protection gap in which their legal status is one of exclusion; there are no national, regional or international laws that the Lebanese government follows. The Department of Affairs of Palestinian Refugees has the official task of establishing an institutional framework for the presence of Palestinians in Lebanon. Sources state that there is a lack of such an institutional framework. Academics and NGOs see the ambiguity of the lack of legislation as a tactic more often used by the Lebanese authorities on other controversial topics. Dr. Nora Stel of Radboud University, for example, states that decisions by this government body remain unclear about what rights the Lebanese government gives to PRL and that Lebanese authorities deliberately strive for institutional ambiguity. By including few rules about Palestinian refugees, the government does not have to bear much responsibility for this.” [4]
[4]Lebanon: Stateless Palestinians, Asylos, p36, citing a 2021 Dutch Ministry of Foreign Affairs report, based on a 2020 book by scholar Dr. Nora Stel.
o Lebanon is commonly referred to as the country where conditions for Palestinian refugees are the ‘worst off’ among those hosting them since 1948, and a turbulent history has marked the Palestinian presence in the country. Among the five UNRWA ‘fields’ of operation, Lebanon has the highest percentage of Palestine refugees living in abject poverty. This is directly linked to the marginalization Palestinians have experienced in Lebanon in the economic and social spheres. Discrimination against Palestinians in Lebanon is institutional and is entrenched in both the Tai’f Constitution and the legal system.[5]”
o As foreigners…[registered Palestinian refugees] experience restrictions, embedded in law and practice, in many areas of life, including with respect to employment, social security, property ownership, and mobility both within (in and out of the camps) and outside the country, as well as access to public services such as housing, education, and health and other rights reserved for Lebanese citizens. Palestine refugees are also considered a ‘special category of foreigners’ not benefitting from specific refugee rights nor being allowed to naturalise, and subject to entry and exit controls that are tightened during periods of insecurity[6].
o Deprived of the right to own any real estate, almost a half of Palestinian refugees (45 per cent) live in one of the 12 official Palestine refugee camps, and the rest reside in the so-called “gatherings” near the camps or informal housing. In all of these settings, Palestinian refugees are often subjected to overcrowded, unsanitary and unsafe conditions, with minimal access to infrastructure and basic services[7].”
o The amount of land allocated to the 12 official Palestinian refugee camps in the country has changed only marginally since 1948, despite a fourfold increase in the population. Consequently, most Palestinian refugees lived in overpopulated camps, some of which suffered heavy damage in past conflicts[8].
o Palestinian refugee camps in Lebanon suffer from an inadequate infrastructure, including an overlap between the drinking water and sewage network, high humidity, water seepage, poor ventilation, and lack of sunlight in most houses in Palestinian camps and gatherings. In addition, waste collection sites are located in proximity to homes leading to an unhealthy environment and causing lung, chronic, and critical ailments. Medical and health aid and protection from diseases and epidemics is scarce and not available in a sustainable manner[9].
o The camps are described as urban ghettos comprised of concrete blocks with corrugated roofs, narrow alleys with sewage and water pipes and covered with a maze of makeshift electric wires’. Overcrowding, unemployment, poor housing conditions, and low standard of living are common... The camps perpetuate structural violence, limit social and economic integration, and have increased tensions and hostility towards Palestinian refugees in Lebanon. Palestinians are subjected to many human rights violations in their daily lives and do not enjoy the same kind of freedoms and rights as other foreigners living and working in the country. The confinement to camps, restricted freedom of movement, and little access to educational and income-generating opportunities over a span of decades and generations have left the community in destitute condition[10].”
o Those who do not stay in the camps mostly live in rented accommodation, even though rental rates are unaffordable for many.
o Violence continues to be a regular occurrence throughout the refugee community with a widespread availability of weapons being reported and a propensity to resort to violence in the face of desperate conditions[11].
o With limited control exercised by Lebanese authorities within Palestine refugee camps, Palestinian political factions are responsible for camp governance and exercise security functions within the camps. The environment in many camps is characterised by insecurity, with sporadic fighting between armed groups, clashes involving drug dealers and occasional violence over personal disputes[12].
o The Lebanese people have a negative image of Palestinians…Palestinians in Lebanon are seen as a separate group and are often blamed for the outbreak of the Lebanese civil war. For example, Palestinians are discriminated against in the labor market because of social stigmas and legislation…Palestinians are associated with radical groups and are denounced in the media as criminals…Provocative opinions about Palestinians are widespread in Lebanon, according to a source, and are hardly censored or criticized by the government[13].
[5]Lebanon: Stateless Palestinians, Asylos, p36, citing Francesca P. Albanese and Lex Takkenberg/Oxford University Press, Palestinian Refugees in International Law”, May 2020, Chapter 3.3.1, p. 272
[6]Lebanon: Stateless Palestinians, Asylos, p19, citing Francesca P. Albanese and Lex Takkenberg/Oxford University Press, Palestinian Refugees in International Law”, May 2020, Chapter
3.3.3, Legal Status and Treatment, pp. 275-279
[7]Lebanon: Stateless Palestinians, Asylos, p111, citing a statement by the UN special rapporteur on extreme poverty and human rights on his visit to Lebanon in November 2021, as published by the UN Office for the Coordination of Humanitarian Affairs.
[8]Lebanon: Stateless Palestinians, Asylos, p36, citing the US Department of State (USDOS) “2021 Country Reports on Human Rights Practices: Lebanon”, Section 2.
[9]Lebanon: Stateless Palestinians, Asylos, p117, citing a joint submission from a collective of NGOs workings with Palestinians in Lebanon to the Human Rights Council Universal Periodic Review in 2020.
[10]Lebanon: Stateless Palestinians, Asylos, p118, citing a peer-reviewed article by Samih Eloubeidi & Tina Kempin Reuter in The International Journal of Human Rights, entitled “Restricting access to employment as a human rights violation: a case study of Palestinian refugees in Lebanon”, 11 April 2022, p. 3
[11]Lebanon: Stateless Palestinians, Asylos, p128, citing the UNRWA “Syria, Lebanon and Jordan, 2022 Emergency Appeal Progress Report for the reporting period 1 January – 30 June 2022”, 3 November 2022, p. 11
[12]Lebanon: Stateless Palestinians, Asylos, p125, citing a report from UNRWA entitled “Protection brief Palestine refugees living in Lebanon Updated in September 2020”, September
2020”, p. 2
[13]Lebanon: Stateless Palestinians, Asylos, p130 citing a report from Dutch Ministry of Foreign Affairs about Palestinians in Lebanon, entitled “Thematisch ambtsbericht Palestijnen in Libanon”, January 2021, p. 49
45.In accepting the credibility of the applicant’s claims genuinely to fear this harm, the Tribunal has also given strong weight to the March 2024 United Kingdom Home Office Country Policy and Information Note for Palestinians in Lebanon[14], including especially the following excerpts from that policy and information note:
[14] Country policy and information note: Palestinians in Lebanon, Lebanon, March 2024 - GOV.UK
o Human Rights Watch (HRW) published an undated article entitled ‘Human Rights Watch Policy on Right to Return’ which stated:
‘Lebanon provides the clearest example of a host state’s denial of rights, use of refugees as political pawns, and illegal discrimination. In Lebanon, many Palestinians are preoccupied with basic survival, overwhelmed by poor physical conditions in the refugee camps, pervasive poverty, high unemployment and underemployment, and inadequate medical services. Successive Lebanese governments have consistently opposed the permanent resettlement of Palestinian refugees in Lebanon, and state policies reflect this stance, denying virtually all social and economic rights. In addition, the state has prohibited the expansion of existing refugee camps, which contributes to overcrowding and illegal and unsafe building of additional stories on existing structures[15].
[15] Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 57, citing an undated report by Human Rights Watch - Treatment and Rights in Arab Host States (Right to Return - Human Rights Watch Policy Page).
o Lebanese law does not specifically target Palestinians. However, the impact of the authorities restricting their access to state services such as healthcare and education, barring them from employment in multiple fields, and from acquiring new property and land, has led to Palestinians facing socio-economic marginalisation: experiencing high levels of unemployment and poverty, and poor infrastructure and housing conditions generally. This is, however, partially offset by the support services provided by UNRWA, which Palestinians largely depend upon[16].
[16]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 12.
o UNRWA’s September 2020 ‘Protection brief’ report stated:
‘Since the adoption of Law 296/2001, Palestine refugees are prevented from legally acquiring and transferring immovable property in Lebanon. This has led to insecurity of tenure as many have been forced into informal rental arrangements and have been deprived of the benefits of property ownership. As a result of the ongoing economic crisis, Palestine refugees are increasingly at risk of evictions[17].
[17]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 32, citing an UNRWA report entitled ‘Protection brief - Palestine refugees living in Lebanon’ (p2), September 2020.
o According to UNRWA, poverty rates increased among Palestinian refugee families from 73 percent in July 2021 to 86 percent in March. Many Palestinian refugees experienced significant difficulties paying for essential goods and services including… electricity, and rent. Many received only a few hours of electricity per day and… Increasingly, landlords raised rents and required tenants to pay them in U.S.dollars; Palestinian refugees’ income was in Lebanese pounds, a currency that has lost 95 percent of its value since 2019.[18]
[18]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 32, citing the 2022 US State Department Report on Human Right Practices: Lebanon, p21-22, 20 March 2023.
o According to UNRWA, 78% of Palestinian households in Lebanon’s refugee camps are affected by dampness, 62% suffering from water leakages, 52% suffering from poor ventilation, and 55% are affected by darkness… [I]n the Borj Albarajenah camp alone, 48 people have died in the past 5 years due to electrocution in the pathways. The combination of water flow with high voltage wires often leads to a true hazard, especially in winter times due to heavy rain and thunderstorms[19].
[19]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 50, as cited by Yafa El Masri in ‘…Lebanon's…Palestinian Refugee Camps’ (p5,6-7,8,9), 26 November 2020.
o A number of non-state groups operate in Lebanon. Most powerful is Hezbollah…In addition, a number of other armed groups exist, including Palestinian groups which primarily operate and govern most of the UNRWA refugee camps. Palestinian factions and some non-Palestinian groups sometimes enter into violent clashes with one another inside the refugee camps…and Palestinian civilians may be caught in the cross-fire of factional disputes. However, information on abuses by these armed militias, or other non-state armed groups, indicates that they are not generally aimed at Palestinian civilians[20].
[20] Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 10.
o Al-Shabaka’s March 2022 article stated:
‘… Palestinian factions regularly engage in armed clashes within the camps, which last for days and lead to casualties and significant disruption to daily life[21].
[21]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 64, citing Al-Shabaka, ‘The Mobilizing Power of Palestinians in Lebanon’, 7 March 2022.
o Although most camps are generally stable, violent clashes have occurred in 2022 and 2023…particularly in Ein el-Hilweh…and in the Mieh Mieh camp. While the camps are generally outside the control or reach of the Lebanese authorities, movement into and out of some of the camps, particularly those in southern Lebanon, is regulated by them[22].
[22]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 12.
o The UN Security Council’s April 2023 report, covering the period 11 October 2022 to 24 March 2023, stated:
‘On 12 November, a dispute between groups affiliated with Fatah and Jund al-Sham, an Islamist faction, in Ein El Hilweh camp escalated into heavy shooting, resulting in one fatality and damage to a school operated by UNRWA. On 20 and 23 November, armed clashes in Rashidieh camp near Tyre resulted in three injuries and the temporary closure of UNRWA installations. On 19 December, armed clashes in Shatila camp in Beirut resulted in one fatality and the temporary closure of one UNRWA school. On 27 January, armed clashes in Beddawi camp resulted in one injury. On 2 March, armed clashes between groups from Fatah and Asbat al-Ansar, an Islamist faction, in Ein El Hilweh camp resulted in one fatality and the temporary closure of UNRWA schools and health centres and the suspension of solid waste management…The Palestine refugee community continues to suffer owing to security risks within the camps…[23]’
o On 13 July 2023, the UN Security Council published a report entitled ‘Implementation of Security Council resolution 1701 (2006) during the period from 21 February to 20 June 2023; Report of the Secretary-General’ which stated:
‘On 1 March [2023] at Ein El Hilweh Palestine refugee camp, a personal dispute escalated into heavy shooting between groups affiliated with Fath and Islamist factions, resulting in one fatality, seven injuries and damage to a school operated by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Following further violence, involving the use of machine guns and hand grenades, all UNRWA facilities in the camp closed until 12 March [2023]. On 29 March [2023], in Mieh Mieh Palestine refugee camp, a personal dispute escalated into shooting between two persons affiliated with Fath and Hamas factions, resulting in one injury. On 6 May [2023], armed clashes involving heavy weaponry between groups affiliated with Fath and the Arab Liberation Front factions in the Beddawi Palestine refugee camp resulted in two injuries[24].
[23]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 54, citing a UN Security Council report, ‘…[S]emi-annual report of the Secretary-General’ (para 49,52), 17 April 2023.
[24]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 55, citing a UN Security Council report, ‘…Report of the Secretary-General…’ (para 37), 13 July 2023.
46.In accepting the credibility of the applicant’s claims genuinely to fear this harm, the Tribunal has also given strong weight to the January 2016 report from the Norwegian Refugee Council entitled Palestinian Refugees’ Right to Inherit Under the 2001 Amendment Law – Beirut Test Case:[25]
o In 2001 the Lebanese Parliament amended the Right to Real Estate Acquisition for Foreigners (1969) legislation…to prohibit non-Lebanese from acquiring real rights in Lebanon without a permit. The amendment was interpreted to specifically prohibit Palestinian refugees in Lebanon from acquiring real estate property rights… The 2001 Amendment Law has been widely interpreted as the effective prohibition of Palestinian refugees from having any kind of real estate rights in Lebanon, including through inheritance[26].
[25]palestinian-refugees-right-to-inherit-under-the-2001-amendment-law.pdf
[26]Palestinian Refugees’ Right to Inherit Under the 2001 Amendment Law – Beirut Test Case, Norwegian Refugee Council, January 2016, p1.
47.The Tribunal further finds that this harm subjectively feared by the applicant which includes severe discrimination, serious injury and illness and death, is serious harm for the purposes of s 5J(4)(b) of the Act.
Is the harm feared for one of the reasons set out in s5J(1)(a)?
48.Giving strong weight to the above-cited DFAT and Asylos and UK Home Office report excerpts, including in particular to the following report excerpts, the Tribunal finds that the harm feared by the applicant is harm inflicted through acts or omissions both by the Lebanese state as well as by private groups and individuals. In situations where it is inflicted by private groups and individuals, including especially by armed militants and criminals in the Palestinian refugee camps, the Tribunal further finds that the harm is officially tolerated or uncontrollable by the Lebanese state.
o Lebanon provides the clearest example of a host state’s denial of rights, use of refugees as political pawns, and illegal discrimination... Successive Lebanese governments have consistently opposed the permanent resettlement of Palestinian refugees in Lebanon, and state policies reflect this stance, denying virtually all social and economic rights[27].
[27]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 57, citing an undated report by Human Rights Watch - Treatment and Rights in Arab Host States (Right to Return - Human Rights Watch Policy Page).
o PRL [Palestinians Resident in Lebanon] do not have the same rights as Lebanese citizens, other refugees or foreigners and fall into the so-called protection gap in which their legal status is one of exclusion…Academics and NGOs see the ambiguity of the lack of legislation as a tactic more often used by the Lebanese authorities on other controversial topics. Dr. Nora Stel of Radboud University, for example, states that decisions by this government body remain unclear about what rights the Lebanese government gives to PRL and that Lebanese authorities deliberately strive for institutional ambiguity[28].
[28]Lebanon: Stateless Palestinians, Asylos, p36, citing a 2021 Dutch Ministry of Foreign Affairs report, based on a 2020 book by scholar Dr. Nora Stel.
o As foreigners…[registered Palestinian refugees] experience restrictions, embedded in law and practice, in many areas of life, including with respect to employment, social security, property ownership, and mobility both within (in and out of the camps) and outside the country, as well as access to public services such as housing, education, and health and other rights reserved for Lebanese citizens. Palestine refugees are also considered a ‘special category of foreigners’ not benefitting from specific refugee rights nor being allowed to naturalise, and subject to entry and exit controls that are tightened during periods of insecurity[29].
[29]Lebanon: Stateless Palestinians, Asylos, p19, citing Francesca P. Albanese and Lex Takkenberg/Oxford University Press, Palestinian Refugees in International Law”, May 2020, Chapter
3.3.3, Legal Status and Treatment, pp. 275-279
o In 2001 the Lebanese Parliament amended the Right to Real Estate Acquisition for Foreigners (1969) legislation…to prohibit non-Lebanese from acquiring real rights in Lebanon without a permit. The amendment was interpreted to specifically prohibit Palestinian refugees in Lebanon from acquiring real estate property rights… The 2001 Amendment Law has been widely interpreted as the effective prohibition of Palestinian refugees from having any kind of real estate rights in Lebanon, including through inheritance[30].
[30]Palestinian Refugees’ Right to Inherit Under the 2001 Amendment Law – Beirut Test Case, Norwegian Refugee Council, January 2016, p1.
o …the state has prohibited the expansion of existing refugee camps, which contributes to overcrowding and illegal and unsafe building of additional stories on existing structures[31].
[31]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 57, citing an undated report by Human Rights Watch - Treatment and Rights in Arab Host States (Right to Return - Human Rights Watch Policy Page).
o Deprived of the right to own any real estate, almost a half of Palestinian refugees (45 per cent) live in one of the 12 official Palestine refugee camps, and the rest reside in the so-called “gatherings” near the camps or informal housing. In all of these settings, Palestinian refugees are often subjected to overcrowded, unsanitary and unsafe conditions, with minimal access to infrastructure and basic services[32].
o The confinement [of Palestians] to camps, restricted freedom of movement, and little access to educational and income-generating opportunities over a span of decades and generations have left the community in destitute condition[33]
o Violence continues to be a regular occurrence throughout the refugee community with a widespread availability of weapons being reported and a propensity to resort to violence in the face of desperate conditions[34].
o The environment in many camps is characterised by insecurity, with sporadic fighting between armed groups, clashes involving drug dealers and occasional violence over personal disputes[35].
o Under arrangements with the Lebanese Government, Palestinian authorities have responsibility for the camps, including security, and administration is left to competing Palestinian political factions. Violent conflict between factions is common in some camps. The Lebanese Armed Forces (LAF) are not permitted to enter the camps[36].
[32]Lebanon: Stateless Palestinians, Asylos, p111, citing a statement by the UN special rapporteur on extreme poverty and human rights on his visit to Lebanon in November 2021, as published by the UN Office for the Coordination of Humanitarian Affairs.
[33]Lebanon: Stateless Palestinians, Asylos, p118, citing a peer-reviewed article by Samih Eloubeidi & Tina Kempin Reuter in The International Journal of Human Rights, entitled “Restricting access to employment as a human rights violation: a case study of Palestinian refugees in Lebanon”, 11 April 2022, p. 3
[34]Lebanon: Stateless Palestinians, Asylos, p128, citing the UNRWA “Syria, Lebanon and Jordan, 2022 Emergency Appeal Progress Report for the reporting period 1 January – 30 June 2022”, 3 November 2022, p. 11
[35]Lebanon: Stateless Palestinians, Asylos, p125, citing a report from UNRWA entitled “Protection brief Palestine refugees living in Lebanon Updated in September 2020”, September
2020”, p. 2
[36]Country Information Report for Lebanon, Department of Foreign Affairs and Trade (DFAT), 26 June 2023, page 15.
49.Giving strong weight to the above-cited DFAT, Asylos and UK Home Office report excerpts, including in particular to excerpts cited immediately above, the Tribunal is satisfied that Palestinian ethnicity is the essential and significant reason for the official discrimination which applicant experiences in his day to day life including with respect to employment, social security, property ownership, mobility, and access to public services such as housing, education, and health.
50.In considering whether the applicant’s Palestinian ethnicity is also the essential and significant reason for the camp-related harm feared by the applicant, while the Tribunal is satisfied that Palestinians legally may live anywhere in Lebanon including in areas well away from the camps provided they can pay the rent and other fees such as municipal fees[37], the Tribunal is also satisfied that the high majority of Palestinians live in camps and associated nearby ‘gatherings’[38].
[37] DFAT Thematic Report – Palestinians in Jordan and Lebanon, 2 March 2015, at 4.82.
[38]Lebanon: Stateless Palestinians, Asylos, p111, citing a statement by the UN special rapporteur on extreme poverty and human rights on his visit to Lebanon in November 2021, as published by the UN Office for the Coordination of Humanitarian Affairs.
51.The Tribunal is further satisfied that Palestinians in Lebanon, are effectively forced to live in the refugee camps or in nearby ‘gatherings’, whereby they are also effectively forced to face all the serious threats feared by the applicant.
52.The Tribunal is satisfied that Palestinians in Lebanon are effectively forced to live in the camps and nearby gatherings because, giving strong weight to all the above-cited DFAT and Asylos and UK Home Office excerpts, it finds that that through discriminatory state laws and policies, as well as through discriminatory intended lack of laws and policies, including those relating to work which the Tribunal finds forces most Palestinians into low paid and exploitative work in the informal sector, and including those relating to non-access to health services and property ownership and social services and housing and education, most Palestinians are effectively forced into dependence on UNWRA support. However, UNWRA support is only generally available to those in the camps and nearby gatherings[39].
[39] DFAT Thematic Report – Palestinians in Jordan and Lebanon, 2 Match 2015, at 4.19
53.The Tribunal is further satisfied that Palestinians are effectively forced to live in the camps and nearby gatherings because the Tribunal is also satisfied that due to those same above-mentioned discriminatory state laws and policies (and lack of state laws and policies), Palestinians are generally unable to afford the rents which are payable outside the camps, in a rental market which the Tribunal accepts has been severely affected in terms of availability and cost by current and past events in Lebanon.
54.The Tribunal is also further satisfied that Palestinians are effectively forced to live in the camps and nearby gatherings because the Tribunal also accepts the applicant’s evidence that societal discrimination against Palestinians, including because of political opinion imputed on them, affects the abilities of Palestinians in being able to find suitable accommodation and employment outside the camp. In accepting this evidence, the Tribunal also accepts the evidence reported by the Dutch Ministry of Foreign Affairs and Trade that the Lebanese people have a negative image of Palestinians, who are seen as a separate group and who are associated with radical groups and are denounced in the media as criminals[40].
[40]Lebanon: Stateless Palestinians, Asylos, p130 citing a report from Dutch Ministry of Foreign Affairs about Palestinians in Lebanon, entitled “Thematisch ambtsbericht Palestijnen in Libanon”, January 2021, p. 49
55.The Tribunal also accepts the applicant’s evidence that, despite his having potential financial support from a number of his children including two children who are living and working overseas, due to his health condition which would require him to have the live-in support of extended family if he must return to Lebanon, the fact that his extended family members themselves must also be able to live and work and survive including through them having access to services to enable them to do so, dictates that he and they must together continue to live in the camp.
56.In all these circumstances, the Tribunal is satisfied that the essential and significant reason for the harm feared by the applicant, is the applicant’s Palestinian ethnicity. The Tribunal is therefore satisfied that s5J(1)(a) of the Act is met in relation to the applicant.
57.In all these circumstances, the Tribunal is also satisfied that the essential and significant reason for any such harm actually to be experienced by the applicant on any return to Lebanon, is the applicant’s Palestinian ethnicity.
58.In making these findings, the Tribunal acknowledges the excerpt from the UK Home Office report cited further above which states that Lebanese law does not specifically target Palestinians[41]. However, the Tribunal prefers the opinion of Dr Albanese and Professor Takkenburg that discrimination against Palestinians in Lebanon is institutional and entrenched in the Lebanese legal system[42], and the opinion of the Dutch Ministry of Foreign Affairs that the legal status of Palestinians resident in Lebanon is one of exclusion[43], and the opinion of Human Rights Watch that Lebanon provides the clearest example of a host state’s denial of rights, use of refugees as political pawns, and illegal discrimination[44].
[41]Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 12.
[42]Lebanon: Stateless Palestinians, Asylos, p36, citing Francesca P. Albanese and Lex Takkenberg/Oxford University Press, Palestinian Refugees in International Law”, May 2020, Chapter 3.3.1, p. 272
[43]Lebanon: Stateless Palestinians, Asylos, p36, citing a 2021 Dutch Ministry of Foreign Affairs report based on a 2020 book by scholar Dr. Nora Stel.
[44] Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 57, citing an undated report by Human Rights Watch - Treatment and Rights in Arab Host States (Right to Return - Human Rights Watch Policy Page).
59.In making these findings, the Tribunal also acknowledges the excerpt from the UK Home Office report cited further above which states that harm experienced by Palestinians in refugee camps from fighting between factional militants is cross-fire harm, which is not targeted at Palestinians[45]. However, the Tribunal finds that the essential reason they are at risk of being caught in the cross-fire is because they are effectively forced to be in the camps because of their Palestinian ethnicity.
[45] Country Policy and Information Note for Palestinians in Lebanon, United Kingdom Home Office, March 2024 at page 10.
Is there a real chance of serious harm for one of the reasons set out in s5J(1)(b)?
60.In considering whether the applicant is a refugee under the Act, among requirements the Tribunal must be satisfied that there is a real chance that the applicant would suffer harm on his return to Lebanon, and that the harm which the applicant is at real chance of suffering is “serious harm” for the purposes of the Act.
61.A real chance is one that is not remote or insubstantial or a far-fetched possibility, and it can be well below fifty per cent and may even be a ten per cent chance: Chan Yee Kin v MIEA (1989) 169 CLR 379 & 429.
62.Further, while the Act does not exhaustively define or limit what might constitute serious harm, at s5J(5) it instead provides the following six instances in guidance as to the degree or level of harm required to constitute serious harm for the purposes of the Act:
(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.
63.The Tribunal must also be satisfied that this harm would be experienced by the applicant for the essential and significant reason of his race, religion, nationality, political opinion, or membership of a particular social group.
64.Giving strong weight to all the above cited DFAT and Asylos and UK Home Office report extracts, and accepting also the applicant’s evidence that as a result of his cancer medical treatment his body’s own immune system has been compromised leaving him at greater risk of dire health outcomes from infection and disease, the Tribunal is of the view that if the applicant were to return to Lebanon, he would be at risk of suffering harm including serious illness and death from unsanitary conditions and disease in the camp, and including injury and death from regular high-level militant and criminal violence in the camp, and including severe entrenched and institutionalised discrimination. This severe entrenched and institutionalised discrimination affects the applicant’s ability to be able to live in an area fit for human habitation, his employment and income-generating opportunities, his access to public services such as health and essential utilities and education, his access to state protection from high level militant and criminal violence, and his access to social security, property ownership, and mobility both within and out of the camp. The Tribunal also finds that this harm, which the applicant is at risk of suffering, is serious harm for the purposes of s 5J(4)(b) of the Act.
65.The Tribunal is further of the view that the risk of serious harm to him is one that is not remote or far-fetched, and is one which is therefore at the level of a real chance.
66.Further to paragraph 57 above, the Tribunal is also satisfied that the essential and significant reason for the harm faced by the applicant is the applicant’s ethnicity as a Palestinian.
67.The Tribunal therefore finds that there is a real chance that, if the applicant was to return to Lebanon, he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and that s5J(1)(b) of the Act is met.
Does the applicant have a well-founded fear of persecution?
68.Given the Tribunal’s above finding that the applicant would effectively be forced to live in the camp or in a nearby ‘gathering’, the Tribunal is further satisfied that relocation is not practicable, and that the applicant’s real chance of persecution therefore relates to all areas of Lebanon.
69.Given also the Tribunal’s above findings relating to the involvement of the Lebanese state in the harm being faced by Palestinians, including through its discriminatory laws and policies as well as its deliberate lack of laws and policies, and including through its deliberate avoidance of extending law and order to the camps, the Tribunal is further satisfied that that effective protection measures would not be available to the applicant. The Tribunal therefore finds that s5J(1)(c) and s5(2) of the Act are both also met.
70.Further to s5J(3), the applicant cannot be required to take steps to modify his behaviour so as to avoid serious harm, such as by concealing his true ethnicity on his return to Lebanon.
71.Given also the Tribunal’s above findings that s5J(1)(a) and (b) are met, the Tribunal finds that the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion, and that s5J(1) of the Act is met.
72.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).
73.In these circumstances also, the Tribunal does not further proceed to make any formal findings against the applicant’s other claims for Australia’s protection, including relating to his fear of harm from [Mr A], and to his fear of harm because of the current conflict in Lebanon, and to his fear of harm because of Lebanon having so changed in the ten years he has been absent from Lebanon.
DECISION
74.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 22 August 2024
Representative for the applicant: Mr Sam Issa (LPN: 5511666).
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
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