2004064 (Refugee) [2024] ARTA 723 (27 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2004064
Tribunal:General Member C Graydon
Date:27 November 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 27 November 2024 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – particular social group – mixed-religious marriage – imputed political opinion – perceived support for Hezbollah – Australian citizen wife – attempted murder – detention – stop on departures – conflict with Israel – mass civilian displacement – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347Any 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 19 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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 who claims to be a citizen of Lebanon, applied for the visa on 5 October 2015. The delegate refused to grant the visa on the basis that he did not accept that the applicant having a Shia wife in Australia would cause him to be harmed in Lebanon and did not accept the credibility of some other claims made by the applicant.
The applicant appeared before the Tribunal on 28 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [named] and his son, [Son A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The applicant claims to be [an age]-year-old Lebanese citizen who was born in [Town 1], in the north of Lebanon. A summary of his protection claims put before the Department is below:
·He is fearful of return to Lebanon due to a longstanding family problem with his former wife’s family, who is from a large and powerful family with links to the Lebanese political part The Future Movement as well as with Lebanese police and the Syrian army.
·During his [number] years of marriage, his father-in-law had continuously sought to harm him including by using his connections and authority to have the applicant taken to the Syrian military stationed in Tripoli, where he was threatened and intimidated on two occasions and also by local Lebanese police. His father-in-law also arranged to have his brother-in-law attempt to shoot the applicant at his [occupation 1 business].
·His marriage eventually broke down and in 2007 when he wanted to leave Lebanon, his wife’s family tried to prevent him from leaving by having his name blacklisted at the airport.
·He managed to overcome this and came to Australia on a visitor visa where he met a woman and they decided to marry. He returned to Lebanon in October 2007 and remained there for the duration of the sponsorship processing period and then returned to Australia in 2009. Shortly after his arrival, his partner withdrew her sponsorship of him, due to interference or influence by the applicant’s ex-wife’s family.
·In 2010 he married his current wife, an Australian citizen who is a Shia Muslim of Lebanese heritage but who has never lived in Lebanon. His current wife refuses to live in Lebanon and so the applicant would be returning to Lebanon alone.
·His wife is related to senior members of Hezbollah, some of whom do not approve of the applicant’s inter-sect marriage with his Shia wife. Nor is the inter-sect marriage approved of by his own family.
·He fears attack from his ex-wife’s family who maintain their longstanding wish to harm him. He also fears his wife’s extended family members associated with Hezbollah or other strict Sunnis or Shia community members may seek to harm him due to his marriage to a Shia woman as sectarian tensions remain strong between Sunnis and Shia communities wherever he may try to live in Lebanon. He would also lack support from either family and have no other support network due to his lengthy absence from Lebanon.
·The police will not protect him, as policing in Lebanon is also conducted on a sectarian basis.
A legal submission accompanied his application, including country information regarding the security situation in Tripoli and north Lebanon, as well as highlighting a lack of effective state protection in Lebanon.
Supporting documents
In addition to his protection visa application, the applicant provided the Department with a copy of his two previous passports and a copy of his Lebanese national identity card.
Protection visa application interview
The applicant was interviewed by a delegate of the Department on 18 November 2019 with the assistance of an Arabic interpreter. On 18 December 2019 the applicant’s legal representative provided the Department with a further statement from the applicant clarifying various points raised by the delegate in the interview as well as a further legal submission, a statement from the applicant’s sister and from a town councillor from [Town 1] confirming aspects of the applicant’s claimed conflict with his ex-wife’s family.
On 19 December 2019 the Department invited the applicant to comment on adverse information contained in a social work report related to his spouse application that went to the credibility of his claims to have feared harm when he returned to Lebanon awaiting processing of his partner application, and also related to the description of his activities in Lebanon at that time made by his former solicitors in a submission made on his behalf to [Authority 1]. On 15 and 16 January 2020 the applicant’s solicitor provided further information constituting a further statement from the applicant clarifying his activities in Lebanon while he was waiting for his partner visa to be processed, as well as evidence from his former employees regarding the date their employment with him ended.
Delegate’s decision
On 19 February 2020 the delegate refused the applicant’s visa on the basis that the applicant’s claims regarding his previous experiences at the hands of his ex-wife’s family were not accepted as credible and that he therefore was not at any risk of future harm from them. Regarding his claims of harm due to his inter-sect marriage, the delegate found that as the applicant would be returning to Lebanon without his Shia wife, he would therefore not be living in a mixed-sect marriage and would therefore not be at risk of harm for that reason. Due to findings relating to the applicant’s overall credibility, the delegate also did not accept that his current wife has relatives in senior positions in Hezbollah and concluded that he did not face a risk of harm from her family in Lebanon.
Before the Tribunal
On 2 March 2020 the applicant applied for review of the delegate’s decision to the Tribunal, providing the Tribunal with a copy of the notification letter and the primary decision made by the delegate.
Pre-hearing submissions and evidence
On 16 July 2024 the applicant appointed a new legal representative to assist him. On 27 August 2024 the legal representative made a submission to the Tribunal arguing that the applicant faced persecution in Lebanon on the basis of:
· His religious beliefs linked to his marriage to a Shia woman.
· Due to his imputed political opinion on grounds of him being seen by Sunnis as a Shia sympathiser and supporter of Hezbollah.
· Due to his ex-wife’s family’s continuing desire to harm him.
· Due to fear of his current wife’s family with high-level links with Hezbollah, who do not accept him marrying their Shia family member.
· Due to the risks posed by the highly volatile political and security situation in Lebanon that exacerbates the other risks faced by the applicant.
· Due to the applicant’s age, vulnerability and protracted absence and disconnection from the job market, as well as the poor economic conditions in Lebanon, including pressure placed on housing by the presence of large numbers of Syrian refugees and rising living costs, as well as employment-related discrimination due to his inter-sect marriage, will all combine to threaten the applicant’s ability to subsist.
· Lebanese authorities are unable and unwilling to protect the applicant due to the sectarian way they operate across the country.
· The applicant’s removal from Australia would negatively impact on his Australian citizen wife and her family, who the applicant supports financially, physically and psychologically.
Threaded throughout the legal submission was country information aimed at substantiating risks faced by the applicant. Attached to the submission were other documents submitted in support of the applicant’s case including:
· A further Statutory Declaration made by the applicant on 23 August 2024.
· Report dated 7 August 2024 from the applicant’s wife’s psychologist, addressing her health issues and dependence on the applicant for support.
· Copies of statements made by three former employees of the applicant in Lebanon confirming they ceased employment with him in 2006.
· Statements from three friends or relatives of the applicant’s wife attesting to her marriage to the applicant and the applicant’s good character including how he fulfils her support needs.
The hearing
As noted above, the applicant appeared before the Tribunal on 28 August 2024 to give evidence and present arguments with the assistance of his legal representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
The Tribunal agreed to the legal representative’s request to provide a post-hearing submission within 14 days and a submission was received on 11 September 2024. The submission raised issues with the applicant’s understanding of some questions during the hearing due to the interpretation and sought to clarify some of his responses caused by these claimed misunderstandings. The submission also addressed the need to consider the impact of nervousness and previous trauma in assessing the testimony of the applicant. Accompanying the submission was a copy of screenshots of messages the applicant had referred to and accessed on his telephone during the hearing, and an accredited translation of these. The messages were purportedly sent by the applicant’s son [Son A] to the applicant, urging him not to go to [Town 1] as he had heard the applicant’s former wife’s family members planned to harm him.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decisions under consideration.
The current DFAT report is the DFAT Country Information Report Lebanon dated 23 June 2023 (DFAT Report) and its relevant sections are referred to and discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J in Lebanon and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Lebanon, there is a real risk that the applicant will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The applicant has provided a copy of his Lebanese passport and has consistently claimed to be from Lebanon. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Lebanon.
There is nothing before the Tribunal to suggest that the applicant has citizenship of any other country, or any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Lebanon is the receiving country for the applicant and has assessed his claims against that country.
Evidence provided by the applicant at hearing
The applicant gave evidence that he has [number] children, [genders specified]. [One child] is married with children and lives in [Country 1]. [The applicant] has no contact with [that child]. [One son] lives in Melbourne and despite them living in the same city, he has had limited contact with him, the most recent time was around five months ago. His daughter lives in [Town 1], Lebanon, is divorced and has children. He has had limited contact with her, the last time a few months ago. [Another son] lives in [Country 2] and regularly travels to Lebanon, including most recently in 2024. The applicant is close to him and he has almost daily contact with him. The applicant has had no contact with his ex-wife or her father since he left Lebanon in 2009.
Noting that the applicant was separated from his ex-wife in 2006 some 18 years ago and that their divorce was finalised in 2008, the Tribunal asked the applicant why any member of his ex-wife’s family would continue to have any motive to harm him. The applicant responded that in his area people have tribal ways and stick to each other and take unjust decisions towards each other and that is what happened in his case. His father-in-law never liked him and never approved of his marriage to his daughter. He spent many years harming him and undermining him and his marriage and he continues to want to harm him.
The Tribunal asked why the applicant’s ex father-in-law was ever motivated to harm him. The applicant responded that he did not know. He has never really understood this but his father-in-law’s vindictive character is known to everyone. The Tribunal asked how the overarching family head had reacted when the applicant had presented to him the gun he had disarmed from his ex-brother-in-law after trying to kill him. The applicant responded that he was initially surprised and upset and said that he would seek to rectify things with the applicant’s ex father-in-law but then after that things became even worse.
The Tribunal asked if he had ever had any specific arguments with his ex-father-in-law which would explain why he would be so motivated to harm his daughter’s husband, and why he would want his daughter to no longer have a husband. The applicant repeatedly said that he could not explain what his ex-father-in-law’s motivations were and that they may not have any ordinary logic, but that he was a person who enjoyed abusing his power and that he held a commanding position in the family. His ex-father-in-law’s hatred towards him also spread to other family members, like his ex-wife’s brothers, including the one who tried to shoot him and others, all following the lead of his ex-father-in-law that the applicant is someone who needed to be ‘taken down’.
The Tribunal asked the applicant if he does not know what motive his ex-wife’s father ever had to harm him in the past, why would he be motivated to hurt the applicant now, especially after so many years had elapsed. The applicant repeated several times that he did not know. Later in the hearing the applicant further elaborated on his ex- father-in-law’s vindictive character: he was known to be a person of hard and violent character who drinks a lot of alcohol and is known to be harsh, rough and violent with others also. This was his personality and because it was combined with him being powerfully connected and one of the leaders of the large family tribe, he was in a position where he could easily abuse his power and use it against those around him he did not like, especially himself.
The applicant added that his father-in-law was always trying to intrude on his role in the family, with his wife and children and that he took issue with his decisions around their children’s education. He also explained that his ex-father-in-law was jealous of the applicant’s business success. Sometimes his ex-father-in-law asked for money from the applicant and the applicant refused. This worsened the relations between him as the applicant was seen as refusing to share his success with the wider family. Other times his ex-father-in-law asked the applicant, as [an occupation 1], to do favours for his associates, and the applicant would refuse to do so. The fact that he refused to fall into line with his ex-father-in-law’s requests and wishes, made his ex-father-in-law more and more determined to ‘break’ him. His ex-father-in-law is from a large and powerful tribe or family, whereas the applicant is from a much smaller family and so his ex-father-in-law felt affronted that this ‘small man’ was standing up to him and being so successful and he felt threatened by that.
The Tribunal asked if his ex-father-in-law had ever treated other family members in a similar way, including his other sons-in-law. The applicant responded that he had also interfered in the family life of another of his daughters, eventually resulting in her divorcing from her husband also and that there had also been some assaults upon [another] brother-in-law. His other ex-brother-in-law was also from a smaller family and not considered ‘good enough’ to marry into the family by his ex-father-in-law. He is not aware of whether another of his ex-wife’s sisters who went to [Country 3] faced similar interferences in their marriage.
The Tribunal asked the applicant about the warning he had received from his son [Son A] not to return to Lebanon. The applicant explained that he had a telephone conversation with his son who had returned to Lebanon in 2023 and told him that his ex-father-in-law, his ex-wife and other family members remained a threat to him. His son then sent the applicant a text message on 26 June 2024. The applicant retrieved the message from his telephone and passed it to the interpreter who translated it as:
It is necessary for you not to go to Lebanon I have heard that [his ex-wife’s] family, they want to harm you and kill you. Do not ever think to go to Lebanon. I have heard from people from [Town 1 variant] in our area that the situation is very bad and they will try to deceive you and take you by surprise and try to hurt you.
The Tribunal suggested that it might be helpful to hear evidence directly from the applicant’s son [Son A] and if the applicant wanted to call him as a witness. Following a break providing the applicant an opportunity to consult with his legal representative, the applicant requested the Tribunal speak to his son [Son A] and that occurred later in the hearing, as per the applicant’s son’s evidence below.
The Tribunal asked the applicant why his ex-wife, who had supported him against his ex-father-in-law for many years, had turned on him and then sided with her father in the dispute. The applicant said he did not know but that her attitude towards him changed quite suddenly and that her disloyalty to him came as a shock to him. The Tribunal said that it was struggling to understand why the applicant’s ex-wife’s family had a continuing grudge against him. The applicant responded that he does not know why his father-in-law has done all this to him, including coming between him and his wife.
The Tribunal put to the applicant as a matter of procedural fairness that could be a reason or part of the reason for refusing his case, that it had listened to the recording of the evidence the applicant had provided to the Tribunal in his earlier application to review the decision to refuse his partner visa. The Tribunal said that when that Tribunal had asked him why his marriage broke down, he responded that while he was in [Country 4] his wife had taken a decision on her own that their son attend a private university, whereas he had wanted him to attend a famous public university. However the applicant had made no mention at the previous Tribunal hearing of any of the serious attacks or underlying problems regarding his ex-father-in-law trying to harm him and undermining his relationship with his wife.
The applicant responded that it was true that he and his wife had their first major fight about the decision concerning their son’s university and that this was a part of the bigger picture of changing dynamics between him and his wife, as his wife became more influenced by his ex-father-in-law. He said that their disagreement about this issue had been seized upon by his ex-father-in-law who used it to push him away from his wife, as from then on his wife had seemed to no longer support him and she had taken her father’s side in the wider family dispute. He said this argument was the start of the unravelling of their marriage. From then on her father had actively worked together with his ex-wife to destroy their relationship and their family, and he was very saddened that they had ultimately succeeded.
The Tribunal asked the applicant if he knew someone by the name of [Mr A] who was mentioned in his lawyer’s legal submission as also having warned him not to return to Lebanon due to ongoing risks from his ex-wife’s family. The applicant confirmed he knew him, and that he lived in Australia and was a business contact. He was originally from Tripoli in the Akkar Province and knows the history of problems in his family although not all the details. The Tribunal asked if he had recently said anything to the applicant warning him not to return to Lebanon. The applicant said that in the past [Mr A] had met with his brother who had warned him to tell the applicant not to return to Lebanon. This had occurred several years ago. The applicant said that his two brothers know about the continuing problem with his ex-wife’s family and sent this message to him.
The Tribunal asked the applicant if he was a Sunni Muslim and he confirmed he was. The applicant said he married his current wife [in] September 2010 and that she is a Shia Muslim with a Lebanese background but that she is an Australian citizen. They married in Melbourne. The applicant’s nephew (from his sister’s side) attended the wedding, with two other nephews arriving later after the wedding. From his wife’s side of the family, many relatives attended including her [specified relatives] and their wives and partners.
The Tribunal asked if the applicant has contact with his wife’s family members in Lebanon. He said that he knows of her [siblings] who live in different parts of southern Lebanon and he speaks to them by telephone. He has a good relationship with them now. While they were initially reluctant to accept him as a Sunni, over time they got to know him better and now they have come to accept his marriage to their sister. He said he had not had the opportunity to meet them in person but that his wife had when she visited Lebanon. He added that the women in his wife’s family are more accepting of him being Sunni than the men.
The Tribunal asked what risks the applicant foresaw he would face in Lebanon due to his marriage to a Shia woman. The applicant responded that he would not be able to live in a Shia area as he would not feel safe or comfortable living in Shia areas and his wife would not feel safe or comfortable to live in Sunni areas, even if they could be safe from the applicant’s ex-wife’s family, which he believes they will not be. The Tribunal asked the applicant if he was compelled to return to Lebanon, whether his wife would travel with him. He said his wife was very clear about this, that she would not be returning with him to Lebanon and he does not want her to be placed at risk, and she is not well and her family are all in Australia. The Tribunal asked why then that the applicant would fear his ex-wife’s family or Shia people more generally given that he would not likely be living in a Shia area and that if he felt unsafe in north Lebanon due to the issues with his family, whether he could live in the Sunni part of Beirut, where he would have limited contact with any Shia people and where he would be some distance from his family members from [Town 1].
The applicant said that Lebanon is a small place and that his ex-wife’s family members could come at any time to harm him in Beirut. It would be easy for them to know that he had returned to Lebanon, from the time he arrived at the airport, due to the contacts his ex-wife’s family have at the airport and that he would not be safe from the moment he arrived. He conceded that if he were living in Beirut he did not expect in the current circumstances that he would be proactively harmed or attacked by his wife’s family or by Shias more generally, because while being married to a Shia was not considered favourable, it was not considered such a big problem to create a real threat on that basis alone. He reiterated that the main threat to him was from his ex-wife’s family. The Tribunal asked if his status as being married to a Shia could also be a cause of him facing problems from other Sunni people in the north of Lebanon. The applicant responded that other Sunnis do not approve of it but he did not expect they would attack him only for that reason. His main problem remains the risk posed by his ex-wife’s family.
The Tribunal asked if he knew of any member of his current wife’s family in Lebanon who had reacted badly to their marriage. He said there were some of her relatives connected to ‘the big person’ who did not like it. The Tribunal asked which ‘big person’ the applicant was referring to and he said [Mr B], who is a former [Official 1] and high-ranking member of Hezbollah who holds a lot of power and influence in the current political context in Lebanon. He said that while there was no indication that [Mr B] himself had directly expressed any view about his marriage to [the applicant’s ex-wife], he was a very powerful man and ‘all it takes is someone to take a dislike for personal or any reason and it can be very dangerous to be in the family of someone like that’. He added that [Mr B’s] views about their marriage was an unknown quantity but that others in his part of the family do not approve of the marriage. Given his power, it would be very easy for him to arrange for the applicant to be found and harmed if he came to his attention for any reason.
The Tribunal asked the applicant how he would financially support himself if he had to return to Lebanon. The applicant said that he had no business, property, or assets in Lebanon as he left everything behind when he left to come to Australia. He added that he has no employment prospects in Lebanon as he is already old and would not be considered very employable and that the economic situation is very tough in Lebanon with most people living in poverty and that he would not be able to support himself. The Tribunal asked if he could raise funds from his business in Australia and take those with him to support himself for any period it may take for any future spouse sponsorship application to be considered. The applicant said the main issue was about leaving his wife behind, who really needed him, financially, physically and emotionally, as well as the support he provides to her son who has problems, and to her grandchildren too. He said the main problem is that his safety would be at risk from the moment he arrived at the airport and that money could not save him from the risk of his ex-wife’s family.
Evidence given by applicant’s wife, [name]
The witness confirmed that she is a Shia Muslim who was born in Lebanon but spent most of her life in [Country 5] prior to moving to Australia. She confirmed that she had never lived in Lebanon. She had visited Lebanon several times, in 2003, 2005 and the most recent time was 2016, when she transited through Lebanon on her way to and from Mecca. During that visit she had felt quite worried about it but still decided to visit the applicant’s sister’s house in [Town 1] overnight so that she could make a connection with her husband’s family. She arrived in a privately organised vehicle and remained inside the sister’s house throughout the entire visit as she felt afraid and uncomfortable that her presence could become known by the applicant’s ex-wife’s family. The applicant’s sister was welcoming and accepting of her despite her being Shia, however, the visit itself was quite tense due to the overhanging worry about the ex-wife’s family finding out about the visit. Initially she had only planned to stay for a few hours but the applicant’s sister insisted that she stay overnight and so she did but then left early the next morning in a privately arranged vehicle to her own sister’s place in Saida.
The Tribunal asked why she went to [Town 1] and did not arrange to meet the applicant’s sister in Tripoli or somewhere less risky. She responded that she did not know her sister-in-law and could not ask her to meet somewhere else, never having met her before. The Tribunal asked if the applicant’s sister had said anything to her about the applicant’s ex-father-in-law continuing to have a problem with the applicant. The witness responded that the sister had told her he was a drunk and had a violent and harsh reputation and that he still had a problem with the applicant, which was why they had to be careful.
The Tribunal asked if her own siblings accepted her marriage to the applicant. She responded that they accepted it, as they had come to accept that things are different in Australia and that unlike Lebanon, no one cares which sect you come from. The Tribunal asked if she knew of any of her relatives who were not happy about her marriage. She said that her uncles on her father’s side were strict Shia and thought that it was wrong she had married a Sunni. During her last visit to Lebanon she went to [Town 2] in southern Lebanon as she has many relatives living there and she wanted to visit her father’s grave. It is a small town and many relatives were at a gathering there, including the children of her uncle, and her cousins. One of her cousins approached her and pointedly asked her why she had done the dishonour of marrying a Sunni man when there were so many Shia men she could have chosen from. She responded that things were multicultural in Australia and then she felt uncomfortable and moved away from this man. She is not sure but she believes he is either the son or nephew of [Mr B]. The Tribunal asked how he is related to [Mr B]. She responded that he is the son of her [specified relative] (who has passed away), on her father’s side, in other words, [details deleted]. She has never had any direct communication with [Mr B] but having this close family member who is very powerful and who does not like her marrying a Sunni, made her feel uncomfortable, especially as everyone in the family knew about it.
The Tribunal asked the witness whether she would accompany the applicant to Lebanon if he was compelled to return there. She stated that she could not live in Lebanon. It was too dangerous and the situation is very bad there, plus she has all her family in Australia. She added, regarding the applicant’s earlier evidence, that she knew from before the hearing how nervous the applicant was about appearing to give his evidence and how difficult he found it to express himself and explain things. She confirmed that over the 14 or more years she had known the applicant, she had continuously heard from him about the problem regarding the threat posed by his ex-wife’s family and from his ex-father-in-law in particular, who is ‘like a gangster’. She said ‘He has power and treats people badly and no one can do anything about it. Plus he has a strong influence over all his children and extended family, who are all part of his campaign against my husband’.
Evidence given by applicant’s son, [Son A]
The witness confirmed that he is [age] years old and [is the] child of the applicant and [his ex-wife]. He now lives in [Country 2] but was currently on holiday in [another country]. The Tribunal asked the witness why his other siblings only have limited contact with the applicant. He responded it was because after the separation of their parents, all the children had been ‘brainwashed’ by his mother’s family to believe that his father was a terrible person. Unfortunately this had destroyed the family and his siblings continued to treat their father unfairly because of everything that had happened.
Noting the witness would have been around [age] years old at the time his parents’ marriage broke down, the Tribunal asked the witness his impression of the reasons why his parents divorced. The witness said that there was a big family issue running on his mother’s side of the family. His grandfather never liked his father and resented him from the beginning of the marriage because his mother was from a big and powerful tribe and his father was from a much smaller family. Over time, his grandfather resented his father more and more, as despite his lower family status his father was proving to be successful in his business and he would not share the profits with the wider family. His father had tried to keep decisions about the family outside of the influence of the wider (mother’s side) family. His father wanted to put his children in a reputable university and his father-in-law was jealous of him and the opportunities he was providing his children and wanted to drag him down. The witness said that the applicant’s ex-father-in-law had been violent towards the applicant and had tried to hurt him several times. In one particular incident, the applicant’[s ex-father-in-law had sent his son to shoot his father with a pistol. The whole town knew about this. While it happened before the witness was born, he had been told about this while he was growing up and everyone in the community knew about it but as a child he could never make proper sense of why this had happened.
The Tribunal asked the witness whether his mother had been supportive of his father in the conflict with his grandfather. He responded that his mother was stuck in between his father and grandfather. She had loved his father but also on the other hand she could not ignore her father as he was the head of the family. The problem between his parents was caused by his grandfather picking on his father and fighting with his father. After the fighting and his father left Lebanon, his father had sent his paternal uncles with a view to bringing his mother and children back to his father. But his grandfather had prohibited that and it took him and the other children a long time to understand the truth, as his grandfather and wider family continually told them that his father was bad and had abandoned them. After the divorce the witness and his siblings lived with their mother at their grandfather’s place for around two or three months and he then relinquished his daughter and grandchildren, saying that he was not here to raise someone else’s children and essentially threw them (him, his siblings and his mother) into the street. Eventually they were able to rent a house but they lived in hardship and without sufficient family support.
The Tribunal asked the witness how he would describe his grandfather’s character, to which he said ‘He has a tough head and the whole town knows him to be mean and alcoholic’. He gave an example of how deep his grandfather’s grudges run when he had said to his son’s [Country 2] wife who was dying from cancer at the time “I never wanted my son to be with you…” The witness said he speaks to his father a lot and that he feels sad that his other siblings are still distant from his father as his father really cares for them and has been very fair all these years, including telling them to be good to their mother, despite everything that happened.
The Tribunal asked why his grandfather disliked his father. The witness responded that his grandfather was jealous and envious that coming from a big tribe, his daughter should have married someone from a big tribe, but his son-in-law was from a small tribe and the fact he was doing well irked him. The Tribunal asked the witness why his grandfather would be motivated to kill his son-in-law, leaving his daughter without a husband. He responded that the reason was simple: spite, hatred and ‘they just don’t like us. My grandfather and uncles don’t like us and they have caused this separation and we lost our family and it was all because of them’.
The Tribunal asked if his uncles and aunts who had married into the family had faced similar problems to his father. He responded that other uncles who married into his mother’s family had faced problems, like an uncle in [Country 3] who had also been rejected by the family and they could not stay there and that the only uncle accepted is the one who lives in Australia because he is from a big family.
The Tribunal asked the witness about his travel to Lebanon. He explained that he goes to Lebanon regularly, including to [Town 1] to see his mother as while he has his differences with her, she is still his mother and he wants to stay in touch with her. The last time he went to Lebanon was in 2023. He gave evidence that he was in a bedroom at his mother’s house when his grandfather entered the house and the witness heard his grandfather speaking in a rough and cruel style towards his mother who was accepting all of his harsh words, talking about how disappointed he is in his children and how he’s had no luck with them and his grandchildren were all rotten. The witness emerged from the bedroom and confronted his grandfather saying he could not believe he was still going on about issues that happened decades ago and that he had to stop blaming everyone and asked him to leave his mother’s house. His grandfather was surprised he was there and playing this challenging role. His grandfather became angry and aggressive yelling back at him that if he ever sets sight on the witness’s father he will shoot him. His grandfather was very angry with what he had done and the witness did not feel safe or comfortable and did not stay long. The witness said that after this incident he had warned his father not to go back to his home village as his ex-father-in-law remained as dangerous and vindictive as ever and planned to harm him if he returned.
The Tribunal asked the witness if he could recall a time when his father was taken by the police and detained. The witness responded that he remembered one incident when his parents were separating when his grandfather had sent a senior family member to beat his father up but that when he could not be found, they found his father’s brother and beat him up instead. His father had filed a complaint about this with the police and the police came to his grandfather’s house and his grandfather had warned the police that this issue was not their business: that they live a tribal life and they are from a big tribe and police should not interfere with their family business. The police left and did not take any further action. The witness could not recall any particular incidents when the police had taken his father away for some time.
The Tribunal asked the witness if he thought his father would remain at risk even if his grandfather passed away and if his father lived in Beirut. He responded that his father had previously almost been killed by his ex-brother-in-law so the problem was not limited to his grandfather and that his father had even been threatened by a relative in Australia. His uncles in Lebanon would likely continue the family grudge against his father and with their network of people including in Beirut and with weapons rampant in Lebanon and no effective police protection, they could easily come and find him and harm him in Beirut too.
Credibility assessment
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well founded’ or that it is for the reason claimed. A fear of persecution is not ‘well founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicants themselves, in as much detail as is necessary to enable the examiner to establish the relevant facts. A
decision maker is not required to make out the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance of, being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J, Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
I have listened to the audio recording of the applicant’s evidence when he was interviewed by a Departmental delegate and the written responses made on his behalf and the documents provided following the interview. I have also heard his evidence and that of his wife and son at his hearing on 28 August 2024, which provided further insights into the motives and reasons why the applicant had previously suffered at the hands of his ex-wife’s family, which sit at the centre of his claim but which the applicant has had some difficulty clearly explaining. I have also had the benefit of considering the documentary evidence submitted by the applicant to substantiate aspects of his claims, including some of those raised by the delegate as credibility issues at the primary stage.
Amongst these was the issue of whether the applicant had continued or had ceased to run his business in Lebanon while awaiting the outcome of his spouse application and whether or not his previous lawyer had inadvertently misrepresented this issue in a submission later made on his behalf to [Authority 1]. I accept the statutory declarations provided by the applicant’s former staff from the workshop that they ceased working for him in 2006 when he closed the business, and that therefore he was not continuing to work in his business when he returned to Lebanon while he was waiting for his partner visa to be processed.
I also accept that errors were made by the applicant’s former lawyers in their submissions made on behalf of the applicant, including regarding basic factual details such as the applicant’s place of birth and where he previously lived. It is therefore also plausible that the submission made by his former lawyers on his behalf to [Authority 1] stating that ‘While he was waiting for his visa application to be processed, he continued to operate his [business 2] and lived alone in Tripoli’ was not based on the applicant’s instructions, as he claims. In that regard I give the applicant the benefit of the doubt and do not draw any adverse credibility inference from this apparent inconsistency with the evidence given by the applicant on this issue to the Department.
Another claim not accepted by the delegate (for the reason that it was made for the first time at the interview and not in his original written application), related to whether his ex-wife’s family had placed a departure ‘stop’ on his name at the airport, which explained why he had been delayed departing from Lebanon for two months after his Australian visitor visa was issued. The applicant’s evidence was that he became aware of the ‘stop’ on his departure via his cousin who worked at the airport in [a named section] and that he was only able to depart from Lebanon once he had arranged through a decision of the Sharia Court for this to be removed. I am satisfied based on country information that such ‘stops’ are frequently applied against those involved in family law disputes, as the applicant was at that time. I note the current DFAT travel warning for Lebanon states that:
All family law matters are based on local religious laws. Stop-orders that prevent you from leaving Lebanon may arise from family disputes. If you're involved in divorce, custody or other family disputes, speak to a lawyer before you leave Australia.[1]
[1] Lebanon Travel Advice & Safety | Smartraveller.
I also note that the DFAT report for Lebanon also confirms that ‘stops’ can be placed on the names of people involved in criminal cases, adultery and other family law types of cases,[2] and thus I find that it is plausible the applicant was subject to an airport ‘stop’ on his name as claimed, as at that time his family had brought a claim against him in the Sharia court regarding the breakdown of his marriage.
[2] DFAT Country Information Report Lebanon, 23 June 2023 at [5.21].
The delegate also found it implausible that the applicant did not know that while in Australia he could have applied for a protection visa, especially as he had a sister living here. The delegate considered the fact that the applicant returned to Lebanon at that time, was evidence that he did not have a genuine fear of his ex-wife’s family. Contrary to the view of the delegate, I do not necessarily find it implausible that the applicant did not know he could have applied for a protection visa while he was in Australia to prevent him needing to return to an unsafe situation in Lebanon as his visitor visa approached expiry. The applicant explained that all of his relatives in Australia had achieved their migration status in Australia via family visas and none as protection visa holders, thus it is plausible that none of them informed him of the possibility he could apply for a protection visa. It may be easy to assume or overestimate the flow and accuracy of information regarding visa information and options amongst multicultural Australian communities. I accept that the applicant was not aware of the option of applying for a protection visa at that time and accept his evidence that he was afraid at the time that he returned to Lebanon to wait out his spouse application processing time.
I have also given consideration to the written submissions made on behalf of the applicant prior to and after the hearing, including those addressing the approach to be taken to assessing the applicant’s evidence in light of the issues relating to his understanding of some questions including due to later reported difficulties with the interpretation provided and the applicant’s overall stress at providing his evidence in the context of the hearing.
The process of identifying and considering the applicant’s evidence on the key issues relevant to his case have enabled me to form an overarching view that the applicant is a credible witness of truth and that he has been as open and forthcoming as he is capable of being. While he has struggled at times throughout the process to understand the relevance of some questions, despite clarifications, which at times made it difficult for him to provide clear or reflective answers, fortunately he has received competent legal assistance and through the evidence provided also by his son and wife, some of the outstanding issues were able to be clarified or corroborated to my satisfaction to enable me to make the following findings.
Findings
In light of my overall assessment of the applicant’s credibility and the supportive documentation and witness testimony put forward in support of his case, I make the following findings:
·The applicant is the victim of a longstanding campaign of family violence by his ex-father-in-law, the family patriarch of his ex-wife’s family who wielded significant power over family members, especially his sons. The conflict against the applicant spread to other members of the family.
·The applicant’s ex-father-in-law was a well-connected and influential patriarch from a large tribe and in the context of Lebanon’s sectarian governance was able to wield significant influence with local Lebanese police, Syrian army members, airport security staff and politicians involved in The Future Movement, as well as with his own and extended family members and in the local community.
·The applicant’s ex-father-in-law’s family violence towards the applicant was motivated by his authoritarianism, ego, spite, and a world view that the applicant was an inferior person, as he was from a small tribe and not ‘good enough’ to marry his daughter and become part of his family. From the marriage outset in 1984 he did not consent to or approve of the applicant’s marriage to his daughter and had wanted her to marry someone from within the family and when she did not, he sought to undermine the applicant and to interfere in his marriage and in his parental roles for his children.
·Over time this dynamic worsened as the applicant gradually proved himself capable of running a successful [occupation 1] business and was able to provide opportunities to his children that other branches of the family did not enjoy. This caused the applicant’s ex-father-in-law to become more vindictive, jealous and motivated to use more extreme methods to bring the applicant down by using his influence with various authorities and other family members to destroy him, including his marriage to his daughter and their family life.
·In 1986 the applicant’s ex-father-in-law arranged for two armed men to kidnap the applicant from his [occupation 1 business]. He was taken to a Syrian army base and interrogated and then released.
·In 1989 the applicant’s ex-father-in-law arranged for armed men to again kidnap him from the [business] and took him back to the same Syrian army base for interrogation, this time by Syrian army police intelligence, where he was accused of dealing drugs through his [occupation 1 business].
·In 1990 the applicant’s ex-father-in-law arranged for his son (the applicant’s brother-in-law) to shoot him at his [business] but the applicant was able to disarm his brother-in-law. This attack was well known in the local area and a source of humiliation for his brother-in-law due to the applicant having successfully disarmed him, worsening the conflict within the family. Efforts to involve the overarching tribe head to help resolve the conflict did not help to ease the tension but further exacerbated them.
·In 2006 the applicant’s ex-father-in-law arranged for the applicant to be lured by Lebanese police to the [Town 1] police station on the basis that his wife wanted to resolve her problems with him there. The applicant was imprisoned in an underground cell with 30 other men for three days without charge. He was interrogated and asked for money and he paid money to secure his release.
·In the same year, the applicant’s wife turned against him and their marriage collapsed. He sold his [business 2] he had after ending his work as [an occupation 1] in 1992, and planned to visit his sister in Australia and was granted a visitor visa. He was informed by his cousin who worked at the airport in [a named section] that a ‘stop’ had been placed on his name to prevent his departure but he was able to arrange for this to be removed and he was able to leave Lebanon in early August 2007.
·While in Australia, he met his second wife and she agreed to sponsor him on a spouse visa. He returned to Lebanon awaiting his visa, not being aware that he could apply for a protection visa. During this time he remained fearful that members of his ex-wife’s family would attack him. He was not working and he kept a low profile.
·He left Lebanon in 2009 and has not returned since. His marriage to his second wife fell through and in 2010 he married his current wife, an Australian citizen who is a Shia woman of Lebanese background who grew up in [Country 5]. She has never lived in Lebanon and does not intend to live in Lebanon in the future.
·The applicant’s current wife’s father grew up in [Town 2] and her [relative] is [Mr B], a Shia Lebanese politician and senior member of Hezbollah who has held various [positions] representing Hezbollah including in the [a specified role].
·Her immediate and extended family members are all aware that she married a Sunni man in Australia. Her sisters have come to accept the applicant and present no ongoing threat to the applicant, however, not all of her family take an accepting approach.
·This was highlighted when the applicant’s wife last visited Lebanon in 2016. She returned to [Town 2] to visit her father’s grave and family members. At a family gathering, the son or nephew of [Mr B] approached her and criticised her for marrying a Sunni, indicating firstly, that this branch of the family (which includes [Mr B]) was aware of her marriage to a Sunni and secondly that at least some members of this branch of the family did not accept her decision to marry a Sunni man.
·The applicant’s son returned to [Town 1] in June 2023 to visit his mother. While staying at her house, his grandfather came to her house and he had an altercation with his grandfather who was continuing to make disparaging remarks about his children, their spouses and their children. He intervened and challenged his grandfather to leave the past alone and to leave his mother’s house. His grandfather reacted aggressively stating that if he ever saw his father (the applicant) he would not hesitate to shoot him. The applicant’s son did not feel safe and left [Town 1].
·The applicant’s son sent his father a message warning him not to return to Lebanon as he had just witnessed the applicant’s ex-father-in-law threatening to kill the applicant if he saw him again.
Real chance of serious harm throughout Lebanon
My task is to undertake a forward-looking assessment of what risks the applicant may face in the current context and foreseeable future in Lebanon. In undertaking this assessment, I must consider the applicant’s prior experiences, which may provide indications of what risks the applicant may continue to face into the future. However given the current volatility of the security, political and economic environment in contemporary Lebanon, including the impacts of Israel’s continuing military operations in Lebanon, I must also take into account a wider range of circumstances to cumulatively assess the degree and nature of current and future risks the applicant may face in Lebanon, both at this time and for the foreseeable future. This is a particularly challenging task in the context of the current armed conflict and the fluid political, economic and social situation currently faced by people in Lebanon.
In conducting this assessment the Tribunal is highly mindful that to meet the refugee or complementary protection criteria, it is not sufficient for the applicant to have a well-founded fear of harm due to a general lack of security in Lebanon, whether caused by armed conflict or otherwise, or indeed from any harm that indiscriminately impacts on the general population. To meet the refugee criterion, under s 5J(4)(a) the harm feared must be for the ‘essential or significant reason’ of one or more of the five bases for protection, being race, nationality, religion, political opinion or particular social group. Under s 36(2B)(c) of the complementary protection criterion, the definition of ‘significant harm’ excludes a risk or harm that is one faced by the population of the country generally or that is not faced by the non‑citizen ‘personally’.
Thus what is required of the Tribunal is to undertake a granular assessment of what risks the applicant currently and foreseeably faces in Lebanon and with careful analysis for what reasons he faces these harms and whether these are due to factors adequately linked to any of the five grounds for refugee protection or due to factors that are otherwise personal to him. Whether or not the applicant faces a heightened risk profile in the context of the war for any reason, requires careful consideration of the applicant’s personal circumstances. In undertaking this task, the Tribunal has considered the country information provided by the applicant and has also undertaken its own research especially given the significant changes that have occurred in the country situation since the hearing involving an ongoing situation of armed conflict and mass displacement.
The applicant’s legal representative has advanced the applicant’s case on various grounds as set out in paragraph 13, including:
· Due to his marriage to a Shia woman resulting in him being imputed with a political opinion by Sunnis as a Shia sympathiser and supporter of Hezbollah.
·Due to his ex-wife’s family’s continuing desire to harm him, including due to him being perceived by his ex-wife’s family as being opposed to the influence of the Syrian regime in Lebanon.
·Due to fear of his current wife’s family with high-level links with Hezbollah, who do not accept him marrying their Shia family member.
·Due to the risks posed by the highly volatile political and security situation in Lebanon that exacerbates the other risks faced by the applicant.
·Due to the applicant’s age, vulnerability and protracted absence and disconnection from the job market, very poor economic conditions in Lebanon and discrimination he may face in accessing employment or housing due to his mixed-sect marriage.
Analysis of ongoing risks regarding claims of threats from ex-wife’s family in [Town 1]
Real chance of serious harm
The applicant’s evidence is that one of the main reasons he fears return to Lebanon arises from an ongoing threat posed by his ex-wife’s family. The applicant has persuaded the Tribunal that despite the lengthy passage of time since he left Lebanon and since he was part of [his ex-wife’s] family, the applicant’s ex-father-in-law, his sons and possibly other extended family members, continue to be motivated to harm the applicant due to their longstanding grudge against him.
The Tribunal accepts that the applicant’s son witnessed this continuing animosity firsthand in 2024 when his grandfather threatened to kill his father (the applicant) if he ever saw him again. The Tribunal also accepts that the applicant’s ex-father-in-law has previously organised for extraordinary steps to be taken to harm and threaten the life of the applicant involving not only the applicant’s ex-brother-in-law but also a range of state actors, including Lebanese police and Syrian army members. The involvement of these actors indicates that this was no ordinary inter-personal grudge or intrafamilial dispute. The Tribunal also accepts that due to his ex-father-in-law’s vindictive character and the continuing opportunity he has to abuse his power as the family patriarch, along with the longstanding ferment he has generated against the applicant in the wider family, that this has resulted in the dispute becoming a wider family ‘cause’. While this threat from the applicant’s ex-wife’s family may not seem entirely logical or rational in a general sense, I accept that in the particular context of Lebanon and the applicant’s ex-wife’s family, it nonetheless exists and continues. I find that if the applicant were to return to his home area of [Town 1], he would face a real chance of serious harm from his ex-wife’s relatives. I further find that they are motivated to harm him and capable of finding him in any part of Lebanon and therefore this risk applies across Lebanon.
Nexus to ‘essential and significant’ refugee ground
However to meet the definition of a refugee, a fear of harm must not only be well-founded but it must also have sufficient causal nexus with one or more of the five bases for refugee protection, being race, nationality, political opinion, religion or particular social group. The facts of this case indicate that the applicant’s dispute with his ex-father-in-law is not an ‘ordinary’ family conflict due to the ability of the applicant’s ex-father-in-law to enlist against him the support of local police, local Syrian army members, and airport immigration authorities, in addition to mobilising his son. These dimensions indicate a level of complicity and abuse of authority by various state and foreign state actors, elevating this conflict to one where agents of the state were themselves also amongst the persecutors. This creates a clear nexus with the state as an agent of persecution, as despite these individual police acting corruptly as the ex-father-in-law’s agent and not acting within their official roles, the fact remains that state powers and authority were used to persecute the applicant and could be similarly mobilised again in the future. The state of Lebanon has also demonstrated itself to be unable or unwilling to protect the applicant from foreign state actors, being Syrian army members, who also corruptly used their state powers and authority to harm the applicant.
At the heart of the dispute is the applicant’s father-in-law’s belief that the applicant is an inferior person because he heralds from a small tribe and was therefore not considered worthy of his daughter’s hand in marriage. Thus the applicant’s tribal identity is a key element underpinning the dispute. It is not necessary for me to find whether or not the ground of ‘race’ or ‘particular social group’ better characterise this defining feature of the applicant’s tribal identity and its link to the harm feared by him, as I find that it is the ground of actual or imputed political opinion that is the ‘essential and significant’ reason for the harm faced by the applicant from his ex-father-in-law and his wider family. I find that the relevant political opinion expressed by the applicant was his persistent resistance to the political, social and cultural order his ex-father-in-law was determined to impose upon him in his role as a de facto local authority, including by leveraging his influence with state authorities to achieve that goal.
To further elaborate upon this, despite the applicant being, in the eyes of his ex-father-in-law, a ‘lowly’ person from a small tribe, yet the applicant still had the ‘impertinence’ to refuse to submit to his wishes. For example, the applicant refused his ex-father-in-law’s money from his [occupation 1 business]; refused to do favours for his father-in-law’s contacts; refused to agree to his father-in-law’s preferences for the education of his children and the applicant even managed to humiliate him by disarming his son who he had assigned to shoot him. Had the applicant simply ‘rolled over’ and submitted to his ex-father-in-law’s wishes as his patron and patriarch, then while his ex-father-in-law would likely always still have looked down upon him due to his tribal identity, he most likely would not have shown such determination to ‘bring down’ the applicant or resorted to the extreme methods he took leveraging his connections with state actors to harm the applicant.
In addition, I find that in the highly sectarian governance context of Lebanon - where the state apparatus is weak - family and tribal patriarchs such as the applicant’s ex-father-in-law, exercise a mix of strong cultural authority and influence, and in some instances even effective control, over the actions of local state authorities, rendering them functionally and in effect a local de facto authority. In light of the particular facts of the applicant’s case, including his ex-father-in-law’s enlistment of police and other state authorities to harm the applicant on his behalf, I find that the ‘essential and significant’ reason for the harm feared by the applicant from his ex-father-in-law was due to his resistance to his ex-father-in-law’s power over him, which was an expression of political opinion against a person who was in effect, a local authority.
Lack of effective state protection
I further find that there is little prospect of the applicant receiving protection from the risk posed by his ex-wife’s family by the relevant authorities. Due to the applicant’s ex-father-in-law’s influence over police in the [Town 1] area, who have previously acted as agents of persecution, they clearly cannot be relied upon to protect the applicant from the ongoing threat he faces from his ex-father-in-law and wider family. In other parts of Lebanon, I find that the police and other authorities will be unable to provide him with effective protection from this threat due to their lack of capacity.
The severe strain of multiple compounding shocks on the Lebanese economy and now also in the context of continuing armed conflict and impacts of mass displacement of civilian populations, have degraded the capacities of police and overwhelmed the limited law enforcement capacities that remain functional in Lebanon in trying to maintain basic civic order. Even prior to the escalation of hostilities between Israel and Lebanon, many police had already been pressured by economic factors to desert their posts. DFAT confirms these issues highlighting the lack of effectiveness and functionality of the Municipal Police:
The UNDP reports that Lebanon’s Municipal Police, who answer to local mayors, are ‘known to be the weakest link among Lebanon’s security agencies, and to command little authority and respect. They are considered to play a minimal role in ensuring security in cities, towns or municipalities.’ Municipal police are expected to ask for the support of the ISF ‘in the event of any crime or any disturbance of the public security’. They have been hit especially hard by the economic crisis. Municipalities’ sources of income are tax collection (which has been reduced significantly by the crisis), and central government funding (which, as of July 2022, had not been paid for two years). Sources report that, as at July 2022, most municipal police had not been paid for a year. Many municipalities have laid off police and sources report that their role has, to some degree, been replaced by vigilantism.[3]
[3] DFAT Country Information Report Lebanon, 23 June 2023, [5.7].
A similar pattern of desertion has also plagued the Internal Security Forces (the ISF), the more highly trained and professionalised police force, due to unpaid and low value wages due to the impacts of a multiple compounding crisis. These include the national economic crisis commencing in 2019, ongoing economic and social impacts of COVID-19 and the Beirut Port blast commencing from 2020, and the impact on food prices caused by the Russian invasion of Ukraine from 2022. These pressures have further worsened as the conflict with Israel has escalated throughout 2024 culminating over the last two months in ongoing intensive bombardment. As stated by DFAT in June 2023:
The economic crisis has caused serious difficulties for the ISF and its personnel. Far fewer people have confidence in the ISF than the LAF, and many towns have created their own local patrols or neighbourhood watches to maintain law and order. The impact of the currency devaluation on ISF personnel has also been highly deleterious and led to desertions, with many ISF officers moonlighting in more lucrative roles. As a consequence, ISF command unofficially allows officers to serve only two to three days a week and to take an additional job. Some personnel are reportedly unable to reach their duty stations due to fuel shortages and the rise in transportation costs. [4]
Also reported in the media:
Over 1,000 Internal Security Forces members have deserted the service amidst devaluating wages and forcibly renewed contracts. [5]
[4] DFAT Country Information Report June 2023, at [5.6].
[5]Abou Al Joud, S. 'If I come back I'll be sent to jail': Why solving ISF desertion problem is complicated’ 27 May 2024, L’Orient Today.
Remaining police resources are overstretched managing mass displacement pressures including the heightened sectarian tensions that have resulted.[6] These lacunae in law enforcement capacity provides opportunities for those with criminal intent, such as the applicant’s ex-wife’s family, to commit ‘ordinary’ crimes with impunity, across the country. On the basis of the country information above, I find that the authorities will not be able to provide effective protection to the applicant from the risk of his ex-wife’s family harming him in any location in Lebanon. Should any attack be made upon him, there is little chance that the case would be properly investigated and the offenders brought to justice. This would also deny the applicant effective protection and an effective remedy further signalling a failure of state protection, such as to elevate such attacks against him to the status of a human rights violation. I conclude that the effectiveness of both the ISF and Municipal Police is severely compromised across the country, leaving the applicant, who is known to be at particular risk of crime, unable to access effective protection from state authorities.
Conclusions regarding applicant’s claim to fear harm from ex-wife’s family members
[6] Clashes break out after Lebanese police evict displaced people from Beirut building – video | Lebanon | The Guardian, 23 October 2024.
I accept that the applicant has a well-founded fear of serious harm from his ex-father-in-law and other relatives of his ex-wife in [Town 1] and that they are motivated to harm him and capable of finding him in any part of Lebanon; that the essential and significant reason for this harm is the applicant’s imputed political opinion; that the police are unwilling or unable to provide him with effective protection from this risk in the applicant’s home area and that he cannot relocate and be safe in any other location in Lebanon due to a lack of effective state protection across the whole of Lebanon due to degraded policing capacities. Those police who continue to function are acutely overstretched in the current context of civil upheaval caused by armed conflict, mass displacement and economic collapse and are unable to provide effective protection to the applicant in any part of Lebanon.
Grounds of religion and imputed political opinion due to applicant’s inter-sect marriage to a Shia woman who is the [relative] of a [Hezbollah] political leader
I have also considered the other grounds on which the applicant’s representative claims the applicant is a refugee: namely, that the applicant will be assumed by his family and other Sunnis to be a Shia sympathiser and by extension, a Hezbollah supporter, having married a Shia woman; and that these views will be further exacerbated by his wife being the [relative] of a [Hezbollah] political leader.
I note that based on the applicant’s wife’s evidence, she would not be joining her husband to live in Lebanon should he be unable to remain in Australia. Thus the applicant and his wife would not be living together in a mixed-sect relationship in Lebanon and therefore the impact of being in a mixed-sect relationship would be somewhat diluted as the applicant would not be directly confronted with the reactions of extremist members of either sect (Sunni or Shia) who disapprove of them living together in Lebanon. However, especially given the sectarian nature of Lebanese society, the applicant’s identity as a Sunni person married to a Shia will still be known to those around him. I accept that this may impact on how some Sunni and Shia people may perceive the applicant if he was living in Lebanon, especially at the present time when sectarian tensions are heightened by the conflict and mass displacements being experienced across Lebanon and given the known disapproval of the marriage by some members of the applicant’s wife’s family who exercise significant power in Lebanon.
Risk impacts of applicant’s inter-sect marriage
I note that while Lebanon reportedly has the most inter-religious marriages per capita in the Middle East, this still only represents between two and five percent of all marriages amongst the Lebanese.6 I further note the applicant’s legal representative’s submission that:
Interfaith and inter-sect marriages are often met with significant societal resistance and official discrimination in Lebanon. Individuals in such relationships can face severe societal and official bias, and in some cases, violence. Discrimination frequently stems more from political and sectarian affiliations than from religious differences alone. Community pressure to adhere to sectarian norms can be intense, and there is a tendency for people to be coerced into marrying within their own sect or community.
Inter-sect marriages, such as those between Shia and Sunni Muslims, are particularly contentious. In Lebanon, sectarian divisions deeply influence social attitudes, and there is substantial hostility. For example, Shia communities, including those influenced by Hezbollah, strongly disapprove of marriages involving Sunni partners. Hezbollah and its supporters hold conservative views on sectarian purity, and marriages outside one's sect are sometimes viewed with suspicion or outright hostility. This sectarian intolerance manifests in social ostracism, family conflict, and violence.
DFAT acknowledges the potential for violence against individuals involved in inter-sect marriages due to strong sectarian prejudices. The report highlights that such incidents, while not always publicized in detail, are part of the broader issue of sectarian violence and discrimination in Lebanon.
I do not fully accept the above characterisation of the risks of people involved in inter-religious relationships, nor its attribution to the DFAT report for 2023, the relevant part which is set out below:
Mixed marriages between Christians and Muslims, or between those from different Christian denominations or schools of Islam, sometimes occur in Lebanon, resulting in some religious pluralism within family life, though not without tension. For example, a mixed couple may be ostracised by some members of the extended family. Children of mixed marriages officially take the father’s religion. DFAT is not aware of any reports to suggest that either converts or those involved in mixed marriages are subject to any official discrimination. In cases where converts or those involved in mixed marriages have experienced societal discrimination in the form of harassment or ostracism, this is most likely to be the result of specific localised factors (such as a family’s socioeconomic standing or level of social/religious conservatism) rather than being systemic in nature. [7]
[7] DFAT Country Information Report Lebanon 2023, [3.21].
However I do accept that there may be some situations where families react so strongly in opposition to an inter-sect relationship or marriage that one or both of the parties in the inter-religious marriage may face physical violence. I accept that women in inter-sect marriages may face even greater pressures and possible threats of family violence than men, due to the perception that they may have brought dishonour to their families by marrying across sects.[8] However I note that there are also documented instances where the male members of inter-sect marriages have also been attacked, such as the well-publicised case in 2013 where the family of a Druze woman who had eloped and married a Sunni man, lured the Sunni man to a particular location where they cut off his penis.[9] I also note that violence against other third parties has been known to occur due to inter-sect marriages, as highlighted by a case in 2022 reported in the applicant’s submission where a Shia man reportedly killed a Sunni man after discovering that his daughter had married a Sunni man.[10] However the Tribunal was unable to locate country information supporting the legal representative’s assertion that Hezbollah is known to take a particularly inflexible approach to accepting inter-sect marriages involving Shia parties. I am also not convinced that people in mixed-marriages in Lebanon are somehow sought out to be targeted for harassment or violence by community members or religious groups – even despite the current heightened sectarian tensions and divisions between Lebanese communities caused by the war, which will have a disproportionate impact on people in inter-sect relationships.
[8] Baydoun, A.C. ‘Cases of femicide before Lebanese Courts’, KAFA (enough) Violence & Exploitation, 2011.
[9] The Advertiser, ‘Lebanon man’s penis cut off by in-laws’ July 2013; ‘Al-Jadeed Interviews Rabee Al Ahmad, Man Who Had His Penis Cut Off’, July 2013.
[10] The Daily Star Lebanon, 2022 News - The Daily Star Lebanon.
And also:
For children and women, we welcome everyone, but we're on high alert for every man coming into our neighborhood," says 24-year-old Elee Jaber. [39]
[39] Rezvani, A. ‘Lebanon Christian neighborhood fears Hezbollah hides among war displaced’,13 November 2024.
110. Given the increased background and identity checks of people occurring throughout locations such as Beirut where displaced people are concentrated, it is likely that the applicant’s status as a Sunni married to a Shia will become known, and it will also likely emerge that his wife’s first cousin is a [Hezbollah] political leader. This profile will likely be seen as risky by his neighbours with the threat of continued armed conflict still hanging over them, potentially putting them all at risk and plausibly making it more difficult or even impossible for the applicant to secure housing, even if he were able to pay the ‘war economy’ exorbitant rents that have now become common in Beirut:[40]
[40] Ibid. ‘Even though the arrival of wealthy Shia families from the south and Dahieh have caused rental prices to skyrocket and boosted the incomes of landlords, many are now concerned that they could be members of Hezbollah and potential Israeli targets’.
In this context, some landlords are capitalizing on the situation by claiming exorbitant prices tripling or even quadrupling rates in certain cases, especially for furnished accommodations where displaced individuals can move in immediately.[41]
[41] This Is Beirut, ‘Rising Rentals: Effects of the Israel-Hezbollah Conflict’, 11 October 2024.
Moreover his status as a Sunni man married to a Shia woman related to [Mr B] may make him a target for expulsion at any time from any accommodation he is able to secure, and may also spill over into other forms of discrimination, hostility or even violence directed against him.
111. In addition, the applicant is also an older man, now aged [age], and aside from being alone, he would also have no job or means of earning an income to support himself in Lebanon. The collapsed economy in Lebanon has now further imploded with the escalation in conflict, leaving him with even less options for supporting himself. While his family in Australia may be able to support him for a period, the main source of income has been the applicant’s business in Australia which will no longer continue to function without him, limiting the resources available for his support in the war economy in Lebanon, as well as for his family in Australia.
112. The applicant’s access to food and healthcare may also be at risk in Beirut. Lebanon is already considered to be food insecure including in Beirut:[42]
[42] UN News ‘Lebanon: food insecurity ‘set to worsen’ amid deadly strikes.’ 11 November 2024.
Lebanon’s food insecurity was already at crisis levels and is worsening as conflict disrupts supply chains and closes markets in affected areas like Nabatieh and Baalbek-El Hermel, where 80% and 42% of stores are closed, respectively. The South and Bekaa Valley—Lebanon’s main agricultural hubs—are particularly at risk, with hostilities threatening over 60% of the nation’s food production. As shortages grow, especially in Beirut, families face rising uncertainty about their next meal.[43]
[43] World Vision, ‘Middle East Crisis Sitrep No. 6: 24 September-14 November 2024’, Response Sitrep - 6.pdf.
113. As an older person who is without family support, the applicant will be at considerable disadvantage in trying to access the available food. He will also face increased risks compared to those who are not older, in accessing required health care, because he is more likely to need access to health care and many health care services and infrastructure have been destroyed and health personnel killed.
As of November 15, Israel has killed at least 208 health sector workers and injured 311 others according to Lebanon’s Ministry of Public Health…. And carried out more than 280 attacks on emergency medical facilities over the past year .[44]
[44] Al Jazeera, ‘Mapping Israeli attacks on Lebanon’s healthcare system’, 17 November 2024.
114. Secondly, the applicant as an older person, is at a higher risk than others at being unable to access required healthcare because it will be more difficult for him to access the limited available health care services due to his age and lack of support. Even prior to this escalation of hostilities, older people in Lebanon faced heightened difficulties in accessing health care and other basic necessities for survival:
About 11% of the Lebanese population is considered elderly, with an average lifespan of 78 years for men and 82 years for women (ILO 24/05/2022). Lebanon’s elderly face more challenges in accessing healthcare services because of the absence of strong social support networks and retirement plans, further affected by the socioeconomic crisis in the healthcare sector (MedGlobal accessed 07/08/2023). They are often unable to afford basic needs, such as food, clothing, and medicine. Those who do not have any private or social health insurance are particularly affected and completely rely on their children and relatives. Those without insurance represent about 80% of the country’s elderly, and they struggle the most to obtain their medication or seek urgent treatment (ILO 24/05/2022; Awan 13/04/2023)[45][Emphasis added]
[45] ‘ACAPS (Assessment Capacities Project) ‘Lebanon’ the effect of socioeconomic crisis on healthcare’. 19 October 2023.
Conclusion regarding differential risks faced by applicant in context of current or foreseeable armed conflict, mass displacement and destruction of essential services and infrastructure threatening his access to housing, food and healthcare
115. In conclusion, in the context of the armed conflict between Israel and Lebanon and the real risk of hostilities continuing, I accept there is a real chance the applicant will be at risk of direct consequences of armed conflict. Further, I find that due to the military action to date, he will certainly be a victim of the impacts of mass displacement and destruction of civilian infrastructure and services, threatening his access to housing, food and healthcare. I further find that there are no safe locations in Lebanon to which he could relocate to prevent these risks and that the real chance of persecution he faces relates to all areas of his receiving country, Lebanon due to there being no effective state protection available to shield him from these harms. I find that the harm he may face does constitute treatment amounting to serious harm as defined in s 5J(5) as it may threaten his life, involve significant physical harassment or ill-treatment and may also involve denial of access to basic services and capacity to earn a livelihood that could threaten his capacity to subsist.
116. I further find that the essential and significant reasons why the applicant faces serious harm are due to a combination of his religious identity and his imputed political opinion arising from him being a Sunni man in an inter-sect marriage with a Shia woman, who is also a relative of a [Hezbollah] political leader. These factors elevate the risk the applicant faces beyond those of the general population and makes his fears of harm due to these reasons, to be well-founded. I further find that his status as an older person who lacks support of any family and who has been absent for a protracted period from Lebanon will further enhance the risks he faces.
Conclusion
117. The applicant has established that he is owed protection obligations as a refugee on two bases: first, due to his fear of harm from his ex-wife’s relatives for reason of his imputed political opinion and where there is an absence of effective state protection, and second, due to the interaction between his particular identity and him facing return to a situation of possible continuing armed conflict and where he will certainly face the impacts of mass civilian displacement and destruction of civilian infrastructure and essential services, threatening his access to necessary means of survival, including to housing, food and healthcare. I further find he will be placed at differential risk of these harms due to his religious identity, his inter-sect marriage to a Shia woman who is related to a [Hezbollah] political leader, as well as due to his lack of family support, age and his protracted absence from Lebanon, resulting in a real chance that his basic needs for survival will be threatened.
118. Considering my reasons set out above, I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
119. Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country, and s 36(3) of the Act is therefore not applicable.
DECISION
120. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a).
Date of hearing: 28 August 2024
Representative for the applicant: Ms Rayane Hawli
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
- AGLC
- 2004064 (Refugee) [2024] ARTA 723
- Case
- [2024] ARTA 723
- Decision Date
CaseChat Overview and Summary
The key legal issues before the Tribunal were whether the applicant's fear of persecution was well-founded under the Refugee Convention and, if not, whether the applicant faced a real risk of significant harm due to the lack of state protection in Lebanon. The Tribunal had to assess the credibility of the applicant's claims, the likelihood of future harm, and the effectiveness of state protection in Lebanon. The applicant argued that his marriage to a Shia Muslim, his estrangement from his ex-wife's powerful family, and his perceived support for Hezbollah created a real risk of significant harm if he were to return.
The Tribunal concluded that while the applicant's claims were compelling, the evidence did not conclusively support a well-founded fear of persecution. However, the Tribunal found that the applicant's situation warranted further consideration under the complementary protection criteria. The Tribunal noted that the state protection in Lebanon was insufficient, and the applicant's personal and sectarian issues, combined with the ongoing conflict and displacement, created a real risk of significant harm. Consequently, the Tribunal decided to remit the matter back to the Department of Home Affairs for reconsideration under the complementary protection provisions.
The Tribunal's decision underscored the importance of a thorough assessment of both persecution and significant harm risks in complex cases involving multiple and intersecting vulnerabilities. The decision highlighted the need for a nuanced approach to protection claims, particularly in contexts of ongoing conflict and weak state protection mechanisms. The Tribunal's findings emphasized that, even in the absence of a well-founded fear of persecution, substantial grounds for believing in a real risk of significant harm could still warrant protection under Australian law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decisions under consideration. The current DFAT report is the DFAT Country Information Report Lebanon dated 23 June 2023 (DFAT Report) and its relevant sections are referred to and discussed below.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J in Lebanon and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Lebanon, there is a real risk that the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of nationality The applicant has provided a copy of his Lebanese passport and has consistently claimed to be from Lebanon. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Lebanon. There is nothing before the Tribunal to suggest that the applicant has citizenship of any other country, or any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Lebanon is the receiving country for the applicant and has assessed his claims against that country. Evidence provided by the applicant at hearing The applicant gave evidence that he has [number] children, [genders specified]. [One child] is married with children and lives in [Country 1]. [The applicant] has no contact with [that child]. [One son] lives in Melbourne and despite them living in the same city, he has had limited contact with him, the most recent time was around five months ago. His daughter lives in [Town 1], Lebanon, is divorced and has children. He has had limited contact with her, the last time a few months ago. [Another son] lives in [Country 2] and regularly travels to Lebanon, including most recently in 2024. The applicant is close to him and he has almost daily contact with him. The applicant has had no contact with his ex-wife or her father since he left Lebanon in 2009.