2005628 (Refugee)
[2024] ARTA 928
•19 December 2024
2005628 (REFUGEE) [2024] ARTA 928 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2005628
Tribunal:General Member D Hughes
Date:19 December 2024
Place:Melbourne
Decision:The Tribunal affirms the decision under review in relation to the fourth named applicant.
The Tribunal sets aside the remaining decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders:
(i)that the first and second named applicants meet s 36(2)(aa) of the Migration Act; and
(ii)that the third named applicant satisfies 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 19 December 2024 at 5:58pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – particular social group – woman – gender-based violence – family violence – fear of forced marriage – internal relocation – complementary protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Australian Citizenship Act 2007, s 12
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
FCS17 v MHA (2020) 276 FCR 644
MIAC v MZYYL (2012) 207 FCR 211
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any 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 13 March 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be nationals of Lebanon, applied for the visas on 23 September 2015. The delegate refused to grant the visas on the basis that they did not satisfy the criteria for grant of a protection visa.
The applicants appeared before the Tribunal on 24 September 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 applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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.
BACKGROUND
The first, second and third named applicants arrived in Australia from Lebanon in December 2009. The fourth named applicant was born in Australia on [date]. The applicants applied for protection visas on 23 September 2015.
Evidence before the Department
As part of their application for protection visas, the applicants provided certified copies and translations of their identity documentation, confirming the parentage of the first named applicant, and the nationality of each of the applicants. Submissions were also provided in support of their claims to have faced family violence from the husband of the first named applicant.
A statutory declaration from the first named applicant discusses her and her family’s history in Lebanon and Australia. She details the history of her issues with her husband, who she claims became increasingly swayed by his extremely religious and traditional family, particularly his own father. She refers to the growing threat she experienced with her husband in Lebanon, and an extensive history of family violence that followed when he also travelled to live with her in Australia.
The applicants provided documentary evidence of the claimed family violence, including a ‘notice of hearing’ from 2015; an Interim Intervention Order against the husband/father from 2015; a family violence safety notice from 2015; and an Intervention Order from the same year.
The first named applicant was interviewed by the delegate in 2019. Post interview submissions were also provided by the representative, which included medical evidence (x-rays) relating to injuries suffered by the first named applicant in Lebanon, as well as evidence of the threat she faced from her husband’s father and family.
In refusing to grant the applicants protection visas, the delegate identified a number of concerns. They were not satisfied the first named applicant genuinely feared returning to Lebanon, or that her father-in-law or other family members would pose a risk to her. The delegate considered the ‘domestic dispute’ with her husband had resolved. The delegate was also concerned about her delay in applying for protection.
A copy of the delegate’s decision was provided to the Tribunal.
Evidence before the Tribunal
The representative, Ms Rayane Hawli, provided a comprehensive legal submission to the Tribunal, which addressed the factual and legal issues arising in this review. The submission also included legal and policy guidance on decision making in this context, and country information relevant to their claims and the situation in Lebanon.
Those submissions were supplemented by the following evidence:
·A 2024 statutory declaration from the first named applicant, detailing her family’s experiences, including instances of family violence committed against her by her husband and his family. She details her reconciliation with her husband, her pregnancy, and the ongoing violence she faced from him, her subsequent approaches to police, an interim intervention order, and the written undertaking from her husband, effectively ending her contact with him.
·A 2024 statutory declaration from the second named applicant, detailing her family’s experiences, instances of family violence and coercive control by her father, the impact on her and her family, and her concerns and fears in relation to her father’s family in Lebanon and what would happen if she and her family returned there.
·Statutory declarations from [three witnesses], corroborating their claims and past experiences.
·Additional corroborative evidence of the applicants’ concerns relating to family violence including from [Agency 1] (2022); a July 2022 letter from [Ms A], a Case Worker, confirming the first named applicant has received financial support from the [named] Support Program; and a July 2022 letter from [name], a Case Manager at [Agency 2], confirming the organisation has provided assistance to the applicants on an ongoing basis.
·Evidence of further legal proceedings relating to the issuance of an Interim Intervention Order in August 2022; and a signed 2024 undertaking from the first named applicant’s husband that he would not commit family violence against the applicants, or approach them or their home.
·Medical evidence relating to the first named applicant’s health concerns and ongoing treatment, including anxiety; and 2024 psychological reports from [Ms B] relating to the first named applicant’s mental health.
·Advice from [Doctor A] relating to the paediatric health concerns for the first named applicant’s youngest child ([named]) who is not a party to this review.
·Evidence of the first and second named applicant’s employment, and the schooling of the second, third and fourth named applicants.
The Tribunal also took evidence from the first and second named applicants at the hearing. As far as relevant to this review, evidence from the hearing is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria 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.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
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.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicants are owed protection. For the following reasons, the Tribunal has concluded that in relation to the first, second and third named applicants, the matter should be set aside and remitted for reconsideration. In relation to the fourth named applicant, the decision under review should be affirmed as he can no longer meet the criteria for grant of a protection visa as an Australian citizen.
Identity
I have no concerns with the identity of the applicants. They have provided documentation in support of their identity, nationality, and the first named applicant’s parentage of the second, third and fourth named applicants. The fourth named applicant has since provided evidence of his Australian citizenship. I have dealt with that separately below.
Based on the oral and documentary evidence before me, I am satisfied the first, second and third named applicants are nationals of Lebanon.
There is nothing before the Tribunal to suggest the first, second and third named applicants have citizenship of any other country, or that they have any right to enter and/or reside in any third country. Based on the information before me, I am satisfied s 36(3) of the Act does not apply.
In terms of the first, second and third named applicants, I am satisfied that Lebanon is their receiving country and have assessed their claims against that country.
Citizenship of fourth named applicant
While the fourth named applicant child was assessed as a national of Lebanon at the time of the visa application and at the date of the delegate’s decision, the evidence before the Tribunal indicates he has become an Australian citizen by operation of Australian law.
The fourth named applicant was born in Victoria, Australia in [specified year]. Under s 12(1)(b) of the Australian Citizenship Act 2007 (Cth), a person born in Australia is an Australian citizen if the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
The fourth named applicant has produced to the Tribunal a letter from the Department of Home Affairs, indicating the fourth named applicant’s application for Australian citizenship was approved [in] May 2023. Movement records before the Tribunal confirm the fourth named applicant’s status as an Australian citizen.
The issue of the fourth named applicant’s citizenship was discussed at the hearing. On 9 October 2024, the representative confirmed that they would not withdraw the application in relation to the fourth named applicant and requested the Tribunal proceed to make a decision in relation to the Australian citizen child.
As the fourth named applicant is an Australian citizen, he is unable to satisfy any of the alternative criteria in s 36(2) of the Act, as they each require the applicant to be “a non-citizen in Australia”. It follows that I am not satisfied the fourth named applicant satisfies any of the protection visa criteria in s 36(2).
Claims for protection
The applicants in this matter claim to fear harm from the first named applicant’s husband (T), who is also the father of the second, third and fourth named applicants. The applicants also fear harm from the family of her husband in Lebanon, who they contend are violent and religiously conservative people, and who are aggrieved with the first named applicant because of her separation from her husband, and her actions in imposing intervention orders against him to protect herself and her children.
The delegate did not accept that the applicants were at threat from the first named applicant’s family. The delegate also considered the domestic dispute between the first named applicant and her husband had resolved.
While I acknowledge the delegate’s concerns as identified in their decision, the Tribunal has had the benefit of considerably more evidence and information about the claims and issues under consideration, including clear evidence that indicates that the family violence continued after the delegate’s decision, significantly impacting the first named applicant and her children.
In her written and oral evidence, the first named applicant gave evidence about her past experiences, the reconciliation of her relationship with her husband, the birth of their youngest child, and the continued deterioration of their relationship, and the ongoing violence and abuse she experienced from him. The first named applicant provided clear advice about her motivations in reconciling with her husband, the impact of the sustained family violence on her and her children, and her eventual recognition (through the assistance of her children) that the relationship was untenable, and that it was again necessary to seek the intervention of the police and judicial system.
While at times I considered there were issues with her evidence and the timeline of her claims, I was also conscious of the impact of her past experiences and her ongoing health concerns. I was also conscious that her desire to reconcile the relationship, for the wellbeing of her children, and her decision to remain in proximity to him, were well intended.
The second named applicant provided comprehensive and persuasive written and oral evidence. She provided cogent support for her mother’s claims and the past experiences of the family. I considered her evidence in the hearing was central to this review.
The second named applicant provided a coherent picture of their concerns on return to Lebanon. She explained that her father’s family has always had enmity towards her mother, however this was compounded when her mother separated from him and obtained intervention orders against her father.
The second named applicant indicated her own concerns in being separated from her mother if they return to Lebanon, being forced to marry one of her conservative cousins, and the impact on her safety and wellbeing. She provided a coherent account of how her father and relatives in Lebanon forced her to speak with her cousin, and that she was told she would have no choice but to return to Lebanon and marry one of her relatives. She claimed she and her siblings would be separated from her mother and not permitted to see her. She feared she would not be able to study or work and would be forced to abandon her career aspirations. She also indicated that violence is normalised in her father’s family and she would also suffer violence if she was forced to return to Lebanon.
The second named applicant said she has not seen her father or contacted him since 2022. She does not know where he currently is. She claimed she and her family are not currently at threat from her father, but this was due to the intervention order (undertaking) in place. She indicated that if they returned to Lebanon they would no longer have those protections.
As listed above, the representative provided detailed and comprehensive evidence in support of their claims, the ongoing nature of the family violence the family has faced from the husband/father, and the impact of these issues on the family.
While I have some concerns with aspects of the first named applicant’s narrative and timeline, the evidence before the Tribunal overwhelmingly supports their protection claims. The independent evidence corroborates their past experiences, and indicates that these issues are ongoing, albeit they are presently being protected by legal mechanisms (the intervention order and legal undertaking).
In all the circumstances, I accept the applicants’ claims. I accept the first named applicant suffered extensive and ongoing family violence and coercion from her husband. I accept these issues arose in Lebanon, including threats and violence from his family, and worsened when her husband travelled from Lebanon to live with her in Australia. I accept the sustained family violence has also impacted the children, albeit less directly. Equally, I also consider that the father has been regressive and coercive to the applicant children in this matter, and he has clearly indicated that he intends for the second named applicant to return to live in Lebanon and marry a close relative without her consent. I accept her father’s family is religiously conservative and violent, and that the second named applicant fears violence from her father’s family.
The advice before the Tribunal indicates that family violence and gender based violence remains a serious issue in Lebanon, with high incidences of violence against women and girls.[1] The representative has also highlighted the risks to women and girls in Lebanon, including one report which suggests that more than 30 percent of women in Lebanon had experienced intimate partner violence.[2]
[1] International Commission of Jurists, Gender-based Violence in Lebanon: Inadequate Framework, Ineffective Remedies, 12 July 2019
[2] Sophia Akram, It’s Time to Talk About Violence Against Women in Lebanon, Middle East Eye, 9 March 2018
DFAT states the following about honour killings, which was also cited by the representative in her own submissions:
In-country sources confirm that so-called ‘honour killings’ of women (the murder of a woman or girl) by male family members, due to the perpetrators' belief that the victim has brought dishonour or shame upon the family) occur in Lebanon but are not common, with very few such killings reportedly occurring in the last few years. However, killings of women, frequently by partners or family members (but not honour killings) are more common. In-country sources reported that eight femicides had occurred in the three months, prior to August 2022.[3]
[3] DFAT, Country Information Report – Lebanon, 26 June 2023
While I accept that incidences of honour killings are assessed by DFAT as low, in the particular circumstances of this case, where her husband and his family are religiously conservative and violent, and the first named applicant has rejected her husband, and taken legal action against him, the chance or risk of her facing harm on such a basis is more elevated. In terms of the second named applicant, if she sought to reject her father’s family and their demands for her to marry a family member, I consider the risks for her could also compound.
In terms of other aspects of their claims, there is clear support in the country advice. There is evidence of forced marriage as a practice in Lebanon, albeit more common within Syrian refugee communities. Around 6 percent of girls in Lebanon are married before they turn 18, and one percent before the age of 15.[4] In terms of the children, women in Lebanon face discrimination in custody of their children, with fathers having priority for guardianship. Women also have limited rights to initiate divorce, particularly in some religious contexts, including where there is spousal abuse.[5]
[4] Organisation for Economic Co-operation and Development (OECD), Social Institutions & Gender Index 2019 – Lebanon, 1 December 2018; Save the Children, Married by exception: Child marriage policies in the Middle East and North Africa, 25 June 2021
[5] Human Rights Watch, Unequal and unprotected - Women’s Rights under Lebanese Personal Status Laws, 19 January 2015
Refugee assessment
If the applicants returned to live in Lebanon, I consider they would return to live in the first named applicant’s home region in (M) in Northern Lebanon, where she has family and religious connections. I accept this area has some proximity to her husband’s home area.
If the first named applicant and her children were to return to this part of Lebanon, I consider there are credible risks to the first and second named applicants from her husband’s family. I accept the first named applicant experienced threats and violence from them in the past, and there are clear risks that the family would seek to take her children from her and/or would subject her to violence or death. I also consider there are credible risks of her husband returning to Lebanon and posing a threat to the first named applicant and her children if she herself returns to Lebanon.
If the first and second named applicants were to return to (M) in Northern Lebanon, I consider there is a more than real chance that they would face family or gender based violence or harm amounting to serious harm, including threats to their life and liberty, and significant physical harassment and ill treatment.
However, for reasons given in the complementary protection assessment below, I am not satisfied that the real chance of persecution relates to all areas of the receiving country Lebanon. I consider the real chance of harm is localised to the first named applicant’s home region in Northern Lebanon. For those reasons, while I accept there are serious risks to the applicants, I am not satisfied any of the applicants in this matter have a well-founded fear of persecution as provided for under the refugee criteria.
Complementary Protection assessment
For the reasons that follow, I am satisfied the first and second named applicants satisfy the criteria in s 36(2)(aa).
I accept there is a credible and ongoing threat to the first and second named applicants from the first named applicant’s husband and his family. If they returned to live in their home area (M) in Northern Lebanon, and given its proximity to her husband’s home area in the same region, I consider there is a real risk that the first and second named applicants would face violence and harm from her husband’s family, and potentially her husband himself if he also returned to Lebanon. Given past evidence of the harm faced by the first named applicant, and their coercive and concerning attitude to the second named applicant, I am satisfied that the harm the first and second named applicants fear would amount to significant harm. I am satisfied the first named applicant may be arbitrarily deprived of her life because of her rejection of her marriage and the legal actions she has taken against her husband. I am satisfied the first and second named applicant may face severe pain or suffering, in terms of family and gender based violence, which I consider would be intentionally inflicted. If the second named applicant were forced to marry a relative against her will, I consider that too would constitute significant harm as defined, in terms of degrading treatment.
While I accept that there is a real chance or risk of the first and second named applicants facing serious or significant harm if they returned to their home area, I consider the risks are localised to their home region in Northern Lebanon. Their evidence indicated that the first named applicant’s family is a malignant and violent force, however there was no contention that these family members would seek to travel and harm the applicants if they returned to live in another part of Lebanon, for example in Beirut or other parts of Southern Lebanon. I consider the threat of harm is localised, in the sense that it would be contingent on the applicants returning to this region and being identified and targeted by her husband’s family for family violence, retribution, or custody of the applicant children.
It follows that I am satisfied there is a real risk of the first and second named applicants facing significant harm if they return to live in their home region in Northern Lebanon. I have therefore considered the qualifications in s 36(2B) of the Act.
In terms of relocation, DFAT indicates there are no limitations on movement for Lebanese nationals, and that Lebanese that relocate will often seek to do so to an area with people of the same religious group, and where there are more opportunities for employment, access to services and protection.[6] DFAT relevantly states:
The ease with which an individual can relocate internally depends to a large degree on their individual circumstances, including whether they have family or community connections in the intended area of relocation, and their financial situation. Internal relocation is generally easier for men and family groups. Single women, particularly those fleeing family violence, are less likely to have access to sufficient support services and are likely to face societal discrimination in the form of harassment, particularly in rural and more conservative areas.
[6] DFAT, Country Information Report – Lebanon, 26 June 2023
Separate from her protection claims, I consider the first named applicant is a particularly vulnerable person. She is a woman who has provided clear evidence of her ongoing health and psychological concerns, in part linked to her extended history as a victim of family violence. While she is educated, she has limited skills and work experience. I consider her health and limited work experience would be a strong barrier against her relocating.
These concerns would be compounded by her responsibility for her four children. She has no family support outside of her home area, and the Tribunal considers that she would struggle to support and provide for her children. Their circumstances would be further exacerbated by her profile as a woman without male support, and fleeing family violence, and as such I accept there are additional risks of societal discrimination or harassment.
The second, third and fourth named applicants, and their youngest sibling, have also spent the majority of their formative years living in Australia. While I accept they are intelligent and capable young people, I also consider they would be emotionally vulnerable in returning to live in Lebanon. The youngest child, who is not an applicant, also has health concerns that would further complicate any potential relocation.
In all the circumstances, the Tribunal is not satisfied it would be reasonable for the applicants to relocate to an area of Lebanon where there would not be a real risk that they will suffer significant harm.
In terms of whether the first and second named applicants could obtain protection from the authorities, the weight of advice before me indicates there remain significant shortcomings for women and girls seeking protection from family and gender based violence.
Domestic violence is against the law in Lebanon, and there are some indications in the country advice of advancements in the legal protections for women in Lebanon facing family violence. Domestic violence laws were amended in 2020 to provide for protection of women against ex-spouses (as well as current spouses) and there has been an extension of protection orders to children up to the age of 13.[7] However, the advice suggests that there remain barriers to accessing such protection:
While sources report the law is being implemented to an extent, the intersection of civil rights with religious courts remains a challenge. Differing provisions on divorce, custody of children and property can make it difficult for women to leave abusive relationships. In-country sources report that many police still regard domestic violence as a family matter, with municipal police, in particular, reluctant to investigate.[8]
[7] DFAT, Country Information Report – Lebanon, 26 June 2023
[8] DFAT, Country Information Report – Lebanon, 26 June 2023
The perception that family violence is a personal matter, and not one for the authorities, was also identified in the representative’s submissions.[9]
[9] Immigration and Refugee Board of Canada, Lebanon: Domestic violence, including legislation, state protection, and services available to victims, LBN103847.E,14 November 2011
Further barriers to obtaining protection were identified in a 2019 report from the International Commission of Jurists (ICJ), which relevantly stated the following:
Women’s access to justice is also impeded by obstacles in the administration of justice, such as the lack of effective gender-sensitive investigations, lack of coherent and effective prosecutions, and lack of adequate competences and resources, as well as discriminatory policies, practices and gender stereotypes on the part of justice sector actors. [10]
[10] International Commission of Jurists, Gender-based Violence in Lebanon: Inadequate Framework, Ineffective Remedies, 12 July 2019
The ICJ also highlighted other barriers to women accessing justice or protection, including economic, cultural and social barriers, social stigma and family pressures against bringing legal claims.[11]
[11] International Commission of Jurists, Gender-based Violence in Lebanon: Inadequate Framework, Ineffective Remedies, 12 July 2019
While I acknowledge there have been some improvements in legal protections for women and girls facing violence in Lebanon, the advice also indicates clear limitations and barriers. I also consider those limitations and barriers acutely mirror the circumstances of the applicants in this case, involving the breakdown of a marriage, a vulnerable mother, custody of children, and a conservative and violent religious family in a regional area. In that full context, I am not satisfied that if the first and second named applicants returned to Lebanon, they could obtain from an authority of the country protection such that there would not be a real risk that she would suffer significant harm.
Given the personal nature of these circumstances, as well as the vulnerable position of the first and second applicants, I am satisfied that the real risk of harm faced by the first and second named applicants is faced by them personally, and these are not risks faced by the population of Lebanon generally.
As none of the exceptions in s 36(2B) of the Act apply, it follows that the Tribunal is satisfied that there is a real risk that the first and second named applicants will suffer significant harm if they were to return to Lebanon from Australia.
Conclusion
As discussed above, as the fourth named applicant is now a citizen of Australia, they are no longer a non-citizen. It follows that they are unable to satisfy any of the criteria in s 36(2) of the Act, which each require an applicant to be a non-citizen.
The Tribunal has no choice but to affirm the decision under review in relation to the fourth named applicant.
In consideration of the assessment above, the Tribunal is satisfied there is a real risk of the first and second named applicants facing significant harm for the reasons claimed, as a necessary and foreseeable consequence of them being removed from Australia to Lebanon.
The Tribunal is satisfied that the first and second named applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal is satisfied that the third named applicant is the dependent child of the first named applicant, and a member of the same family unit.
As the Tribunal is satisfied the first named applicant satisfies s 36(2)(aa), the Tribunal finds that the third named applicant satisfies s 36(2)(c)(i) of the Migration Act.
DECISION
The Tribunal affirms the decision under review in relation to the fourth named applicant.
The Tribunal sets aside the remaining decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders:
(i)That the first and second named applicants meet s 36(2)(aa) of the Migration Act; and
(ii)that the third named applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Hearing date: 24 September 2024
Representative: 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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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