2004217 (Refugee) - [2025] ARTA 699

2004217 (REFUGEE) [2025] ARTA 699 (30 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Salma Soueid
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2004217

Tribunal:General Member G Deal
Date:30 January 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 30 January 2025 at 9:59am
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion – Sunni – particular social group – mixed-sect parents – forced recruitment to Hezbollah – fear of killing – fear of detention – Australian citizen family – economic and security crisis in Lebanon – delay in applying for protection – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 351, 499
Migration Regulations 1994, Schedule 2
CASES
EZC18 v Minister for Home Affairs [2019] FCA 2143
GLD18 v Minister for Home Affairs [2020] FCAFC 2
SZRSN v Minister for Immigration and Citizenship [2013] FMCA 78; SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a national of Lebanon. He arrived in Australia on a student visa [in] November 2014.
With the assistance of the applicant’s then lawyers he applied for the protection visa (PVA) on 27 March 2017 which included an accompanying statutory declaration (2017 Statement). He attended a protection visa interview on 13 November 2019 (PV Interview).
On 27 February 2020 the delegate refused to grant the protection visa. The delegate accepted the applicant’s father was Sunni and his mother Shia. The delegate accepted the applicant was a Sunni Muslim born in [Country 1], who lived in [Country 2] for a period as a young child before his family settled in [Town 1], Southern Beirut, Lebanon (a Hezbollah stronghold at that time) and that after finishing school the applicant relocated to his father’s house and hometown in [Town 2] in the north of Lebanon. Based on country information indicating Hezbollah did not undertake forced recruitment as claimed, and various other identified issues such as a narrative that was at times very difficult to believe, the applicant’s profile including as a Sunni without any association, training or interest in politics or fighting, and the significant delay in lodging the protection visa application after first arriving in Australia on student visa, the delegate did not accept the applicant and his family were specifically targeted and subjected to severe harassment and mistreatment by Hezbollah as claimed. The delegate considered the applicant’s claim he was viewed as a Hezbollah spy by the…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2004217 (Refugee)

Details

AGLC: 2004217 (Refugee) [2025] ARTA 699
Case: [2025] ARTA 699
Decision Date: 30 January 2025

CaseChat Overview and Summary

The applicant, a Sunni Muslim from Lebanon, sought a protection visa in Australia, citing persecution due to his religious affiliation and fear of forced recruitment into Hezbollah. The case involved assessing whether the applicant met the criteria for a protection visa under the Migration Act 1958. The legal issues revolved around whether the applicant's fear of persecution was well-founded and if the situation in Lebanon amounted to the significant harm required for a complementary protection visa. The court needed to determine if the applicant qualified as a refugee under the Act, considering his personal circumstances, including his family's presence in Australia and his wife's Australian citizenship.

The court found that the applicant did not meet the criteria for a protection visa. It was noted that the applicant had a family in Australia, including an Australian citizen spouse, and had not demonstrated a well-founded fear of persecution in Lebanon. The court highlighted that the applicant had not provided sufficient evidence to substantiate his claims of persecution and forced recruitment. Additionally, the court considered the economic and security crisis in Lebanon but concluded that the applicant had not shown a real chance of significant harm if returned to Lebanon. The court also suggested a referral for Ministerial Intervention under section 351 of the Act due to the applicant's family situation in Australia, which presented unique or exceptional circumstances.

The Tribunal affirmed the decision not to grant the applicant a protection visa. The court noted the potential for Ministerial Intervention due to the applicant's family in Australia, which included an Australian citizen spouse and children, but deferred this decision pending further submissions. The applicant was encouraged to explore the possibility of a referral for Ministerial Intervention, considering the significant impact on his family if he were to return to Lebanon. The court's decision underscored the importance of strong evidence to meet the criteria for a protection visa and highlighted the potential for compassionate considerations in exceptional cases.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 29 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant’s representative attended the Tribunal hearing and made oral submissions at hearing.CONSIDERATION OF CLAIMS AND EVIDENCECriteria for protection visa The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Decision

Reasons for decision

At hearing I noted that in light of the issues raised I may not find the applicant satisfies the criteria for a protection visa. I queried whether given the conflict in Lebanon, and that the applicant now had a family in Australia, he had thought about requesting referral for consideration by the Minister pursuant to s 351 of the Act. Section 351 of the Act gives the Minister a personal non-compellable discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so. It did not appear that the applicant or his representative were aware of s 351 of the Act. His representative said that she would conduct further research into this. The representative advised she would seek instructions and that if they decided to proceed, they would provide the Tribunal with written submissions. I therefore provided them with just under 2 weeks in which to provide further written submissions, although to date none have been received. On the evidence before me it does appear that this case may have unique or exceptional circumstances within the meaning of the ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501)’ (Guidelines) warranting referral. In this regard there may be strong compassionate circumstances that if not recognised would relevantly result in serious, ongoing, and irreversible harm and continuing hardship to an Australian family unit where at least one member of the family is an Australian citizen. As noted above I accept the applicant’s wife is an Australian citizen and I consider that if the applicant were to return to Lebanon that his family may not return with him. The applicant has submitted that if he were to return to Lebanon without his family this would have devastating impacts on them, as he supports them emotionally and financially, his wife stays at home to care for the young children, and that his absence would have long lasting and serious impacts on the children’s development, including emotionally and psychologically. The Tribunal will therefore refer the matter to the Department for their consideration. As an aside I also note that at hearing the applicant advised his wife was an Australian citizen and that he was awaiting the outcome of the review before applying for a Partner Visa. While this is not relevant to the review, the Guidelines indicate this might tend against referral depending on the sort of Partner Visa requested, any relevant conditions, and the circumstances of past applications, if any. I have no other information or documents in relation to his wife, their marriage, the children, or visas other than the protection visa the subject of this review, and as a preliminary, the Department may wish to make further inquiries with the applicant in relation to these matters. DECISION The Tribunal affirms the decision not to grant the applicant a protection visa.Date of hearing: 29 October 2024Representative for the applicant: Ms Salma SoueidATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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