2012191 (Refugee)
[2025] ARTA 1160
•13 March 2025
2012191 (REFUGEE) [2025] ARTA 1160 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Harjeet Singh Chahal (MARN: 1688913)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2012191
Tribunal:General Member J Ermert
Date:13 March 2025
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 13 March 2025 at 5:18pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion – Alawite – particular social group – identified security forces officer – fear of killing – physical assault – fall of the Assad regime in Syria – internal relocation – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 to refuse to grant the applicant a Class XA Subclass 866 protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Lebanon, applied for the visa on 22 January 2020. On 9 July 2020, the delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. The applicant applied for review of the protection visa refusal decision with the Administrative Appeals Tribunal (‘AAT’) on 28 July 2020.
On 14 October 2024, the 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 appeared before the Tribunal on 7 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother [Brother 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, although the representative did not attend the hearing.
BACKGROUND
The applicant is [an age] year old male from Lebanon. His protection visa application indicates he was born in [his home town] in the Akkar Governorate in Lebanon to a family of [number] children, including [genders specified]. The protection visa application also indicates that with the exception of [two siblings] who remain domiciled in Jabal Mohsen in Tripoli, Lebanon, the rest of his siblings along with his parents are all living in Australia. The applicant confirmed at the hearing that this remains the case.
The applicant claims to be an Alawite. He moved with his family to Jabal Mohsen in Tripoli in 2003 when he was in [grade]. As a result of the sectarian-political clashes between Alawite residents in Jabal Mohsen and Sunni residents in the neighbouring district of Bab al-Tabbaneh from 2008 to 2014, the applicant and his family experienced significant socio-economic hardship and other forms of challenges during this period which limited the family members’ educational and employment prospects.
The applicant joined the Lebanese Armed Forced (‘LAF’) in [year] and served 3 years in south Lebanon. [Later], the applicant secured a job in the Internal Security Forces (‘ISF’) as an officer where he served in the riot control unit until his departure from Lebanon. [In] November 2019, the applicant arrived in Australia on a Class FA Subclass 600 visitor visa. He has remained in Australia since.
Evidence before the Department
The applicant’s protection claims before the Department are that, following the mass protests and civil unrest that erupted on 17 October 2019, he and other colleagues in the riot control unit of the ISF were deployed to safeguard the area around [Location 1] in Beirut and stop protestors from blocking roads and damaging shops and other properties in the area. The applicant and his colleagues clashed daily with protestors who fought against them with gas grenades, fireworks and rocks, which the applicant and his colleagues responded to with batons, water cannons and tear gas.
During one of the clashes in which the applicant claimed he and his colleagues were under order to use batons to beat back protestors ‘in self-defence’, he had unknowingly beaten some protestors from Bab al-Tabbaneh on the head. He was shocked to discover afterwards that some of the Bab al-Tabbaneh protestors had recognised him as hailing from Jabal Mohsen. The applicant claimed that thereafter, he was personally targeted when working in [Location 1] area where he was called by name, followed by cars and threatened with death. He requested to be transferred from the riot control unit but his transfer request was denied due to the volatile situation in Lebanon at the time which was anticipated to deteriorate.
The applicant stated he cannot return to Lebanon to his job as an officer in the riot control unit of the ISF due to the threats to his life by the local protestors who he believed would kill him. Attempts to relocate would be futile as the protestors could still find him.
The delegated refused the applicant’s protection visa application because the delegate did not accept the applicant’s claims with respect to what happened to him in Lebanon to be plausible. The delegate found the applicant gave a different account at interview of how the protestors from Bab Tabbeneh discovered where he came from which cast doubts on his credibility. Whereas the applicant stated in the protection visa application that any person can get access to information and data, including the names and positions of officers in the riot control department, at interview the applicant stated that protestors had heard other officers calling him by name, and they then asked their friends in the ISF about him and, upon realising where he came from, the protestors allegedly chased his car when he drove home to Jabal Mohsen and tried to kill him.
The delegate did not accept that the protestors had the interest or the capacity to find out the name and address of individual officers of the ISF. The delegate found no information to suggest that protestors harassed or targeted individual ISF officers, including when they were off-duty. The delegate also did not accept the applicant’s claim that his ISF colleagues would only protect him during shifts but would otherwise not be willing and able to protect him at other times. In doing so, the delegate relied on country information that both the ISF and the LAF are competent and trained to maintain Lebanon’s security, except in areas under Hezbollah control. Further, the delegate noted that the Lebanese government placed Tripoli under the command of the LAF in December 2013 to end the sectarian fighting between Sunni Bab al-Tabbaneh and Alawite Jabal Mohsen and restore calm to the area, and that Tripoli has remained stable since 2015. The delegate concluded that given the government’s investment in and commitment to security in Tripoli, there was no basis for believing that the ISF would not be willing and able to protect one of its own members (i.e. the applicant) from targeted threats.
Evidence before the Tribunal
Evidence before and at the hearing
Prior to the hearing, the applicant submitted a statutory declaration outlining the historical background to the conflicts between the Alawite neighbourhood of Jabal Mohsen and the Sunni neighbourhood of Bab al-Tabbaneh in Tripoli, by way of explaining how those conflicts were connected to and influenced protestor behaviour during the riots of October 2019 which continued into 2020. The statutory declaration also included multiple links to social media posts related to the riots, including posts from the ISF’s X (formerly Twitter) account. The applicant also provided a translated copy of a contract of sale for a property in Jabal Mohsen where the applicant was the purchaser, which was signed [in] October 2018.
Upon mentioning at the hearing that the Tribunal is unable to open social media links and that no screenshots of the social media posts referred to by the applicant in his statutory declaration have been submitted despite the Tribunal’s request to the applicant’s representative for the screenshots to be provided in lieu of links, the applicant’s [Brother A] forwarded the screenshots to the Tribunal directly. The screenshots included photos of clashes between protestors and the ISF, and photos of injuries sustained by various officers of the ISF during the riots.
At the hearing, the Tribunal and the applicant discussed the circumstances leading to his coming to Australia, as it seemed rather convenient that he just happened to hold a valid visitor visa for Australia enabling him to escape Lebanon after the riots broke out. The applicant gave evidence he held a visitor visa because he had applied for it prior to the outbreak of the riots to attend his [sister’s] wedding.
In relation to the reasons he applied for protection after arriving in Australia, the applicant maintained his original claims that he was identified by Sunni protestors from Bab al-Tabbaneh during the 2019 riots in downtown Beirut at [Location 1] where he and his ISF colleagues were ordered to push back the protestors. The applicant claimed some of the protestors recognised him by his name as he and his colleagues called out to each other during the chaos and violence that ensued during the clash. When asked how the protestors could have done this, the applicant claimed the protestors filmed the clash and they asked around later to identify who was who in the videos, including by doing research on members of the riot control unit which the applicant claimed was possible because his unit is well known and well recognised.
The applicant claimed he was returning home to Jabal Mohsen in a taxi on one of his days off when he realised he was being followed. He claimed the people who followed him yelled for the taxi to stop. They also yelled they knew he was at the protests and beat them, and they were going to do the same to him and beat him up. The applicant claimed he realised his pursuers were from Bab al-Tabbaneh when they followed his taxi as far as the intersection of the street separating Jabal Mohsen and Bab al-Tabbaneh and turned away towards Bab al-Tabbaneh. The applicant claimed although he recognised his pursuers’ faces from the protests, he did not know them and had not spoken with them at all. When asked whether he had encountered his pursuers subsequently on other occasions, the applicant stated the taxi trip was the only time he was followed and threatened.
The applicant claimed he fears he would be recognised by his pursuers and attacked if he returned to Lebanon. The Tribunal asked why he believes this would happen given the taxi incident was a one-off incident that occurred more than 5 years ago. The applicant stated that everyone knows about the history of animosity between Jabal Mohsen and Bab al-Tabbaneh. Due to this history, as an Alawite from Jabal Mohsen, he would be in danger of serious harm from the protestors who followed him because they are Sunnis from Bab al-Tabbaneh, and he believes this even though both the protests where he beat the protestors ‘in self-defence’ and the taxi incident happened more than 5 years ago.
The Tribunal asked whether the residents of Jabal Mohsen and Bab al-Tabbaneh tend to know each other, to which the applicant responded “Yes”. The Tribunal asked whether the people who pursued him have targeted his [siblings] residing in Jabal Mohsen after he left Lebanon, to which the applicant said “No”, and clarified that his pursuers would not have known about his sibling relationship with his [siblings], because whilst they would know as local residents the background of other residents they would not know details of their personal relationships at an individual level. The applicant does not believe he would be able to obtain effective protection from the ISF if he were to be targeted or attacked on return to Lebanon because the ISF would not know who attacked him, given he does not know the identity of his pursuers and only recognises them by face. When it was put to the applicant that the ISF could apprehend and charge his pursuers and attackers based on his identification of them by face, the applicant responded it would be impossible for the ISF to protect him 24/7.
The Tribunal invited the applicant to comment on country information it found that suggests things are now relatively peaceful and stable in Tripoli between residents of Jabal Mohsen and Bab al-Tabbaneh, and that through the efforts of a not-for-profit NGO called March, the residents of both communities have been getting together to bridge their past differences and improve relations by participating in activities that included the installation of solar-powered street lights, football tournaments, and community street festivals. The applicant responded that although things might appear okay according to the country information and other media reports, the facts on the ground are different. Given the fragility of the security situation in Lebanon, even a police officer issuing a traffic infringement notice could be attacked and things could escalate very quickly. The applicant also said he found out from social media that one of his ISF colleagues was killed in 2020 by protestors. As Jabal Mohsen is only a small neighbourhood in Tripoli, people would know as soon as he returned there through family and friends.
The Tribunal also took evidence from the applicant’s [Brother A] who appeared as a witness. Although Alawites are represented in the Lebanese Parliament, they do not have anyone in the government itself to represent their interests as a minority group. The history of religious sectarian conflicts and the tit-for-tat culture is so deeply embedded in Tripoli that any minor dispute can lead to a serious injury or death-inflicting clash, and as a minority group the Alawites in Jabal Mohsen cannot go anywhere without going past non-Alawite neighbourhoods like Bab al-Tabbaneh and exposing themselves to hostility and risk of harm. Even though some country information might paint a superficially peaceful picture about the situation in Jabal Mohsen and Bab al-Tabbaneh following LAF intervention, the local Arabic social media posts for which translations would be provided demonstrate a very different reality on the ground and show ISF officers attacked by residents. Some Sunni residents from Bab al-Tabbaneh have connections with radicalism and with terrorist groups now in control in Syria, and the situation in Tripoli is not just localised but is a microcosm of the broader regional conflict. The fall of the Assad regime in Syria has stoked fears of revenge attacks against Alawites including in Lebanon, and the concerns have even been highlighted by politicians in Australia. Non-Alawite groups are against Alawites because of the negative association with the Assad regime, when in fact ordinary Alawites like the applicant (and himself) struggle just as much in life and just want to be given the opportunity to live peacefully without harm. The applicant was unfairly targeted for doing his job as an ISF officer during the protests and his risk of harm was increased just for being an Alawite.
Post-hearing submissions
Following the hearing, the applicant provided additional documents in support of his protection claims. They include an article about the implications of the fall of the Assad regime in Syria on the Alawite population in Lebanon, translations of four Arabic social media posts with a date range of 2019 to 2023 relating to attacks on ISF personnel, and a colour digital photograph of the applicant’s ISF identity card with translation.
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.
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 decision under consideration.
Country information
2019 protests or the ‘October Revolution’
The Lebanese government’s proposal in 2019 to introduce a tax on internet chat application WhatsApp served as an initial trigger for anti-government demonstrations that quickly turned nation-wide and shocked the ruling political class, as Lebanese of all religious sects, regional backgrounds, ages, and social classes took to the streets to protest against not only the tax, but also to demand the removal of the government and wholesale reforms to Lebanon’s confessional political system which many saw as the underlying cause of the corruptions that crippled the economy and brought Lebanon to its knees.[1] [2] Riots broke out during protests as police used physical force, water cannons and tear gas to disperse protestors who attempted to block traffic,[3] [4] and many human rights observers have accused the authorities and security forces of using excessive force.[5] [6]
Alawites and sectarian conflicts in Tripoli
[1] ‘The Lebanon uprising: causes and ramifications’, Arab Centre for Research and Policy Studies, 24 October 2019.
[2] ‘Lebanese protests explained’, Amnesty International, 11 November 2019.
[3] ‘Clashes rock Beirut protest for second night’, France 24, 15 December 2019.
[4] ‘Lebanese protests: 40 injured as violence flares again in Beirut’, The Guardian, 15 December 2019.
[5] ‘Lebanon: UN experts decry incidents of excessive force against protestors’, OHCHR Press Release, 26 November 2019.
[6] ‘Lebanon: excessive force against protestors’, Human Rights Watch, 20 December 2019
There has been historical communal violence between Alawites and Sunnis in Tripoli, centring on Syria Street which divides the Alawite suburb of Jabal Mohsen from the neighbouring Sunni majority suburb of Bab al-Tabbanah.[7] The civil war in Lebanon led to clashes in the neighbourhood that were partly rooted in Syrian military intervention in Lebanon, where Alawites in Jabal Mohsen aligned themselves with the Syrian regime and fought against the Sunni Islamist Tawheed Movement mostly in Bab al-Tabbaneh.[8] Violence flared up again after the outbreak of the Syrian war, comprising pro and anti-Syrian government sides, and around 200 people were killed.[9]
[7] Raphaël Lefèvre, ‘The Roots of Crisis in Northern Lebanon’, Malcolm H Kerr Carnegie Middle East Centre, 15 April 2014.
[8] Reva Bhalla, ‘Making Sense of the Syrian Crisis’, Geopolitical Weekly, 2011.
[9] ‘Lebanon: Sectarian Attacks in Tripoli’, Human Rights Watch, 19 December 2013.
The security situation in the area has reportedly been relatively more stable since the Lebanese Armed Forces implemented a security plan and re-established a presence there in 2014/2015. There were reports of violent clashes in Tripoli in 2022 leading to fears of a resurgence in Alawite/Sunni violence, and security forces were deployed to restore calm.[10] In its most recent Country Information Report, DFAT stated that sources reported regular armed clashes between rival families and crime gangs, but in-country sources also reported in December 2022 that ‘the situation in Tripoli has improved following a targeted recruitment campaign designed to broaden LAF’s representation and improve local confidence in the LAF’.[11]
[10] ‘Army completes deployment in Bab al-Tabbaneh, Jabal Mohsen as ISF vows zero tolerance’, Naharnet, 31 August 2022.
[11] DFAT Country Information Report – Lebanon, Department of Foreign Affairs and Trade, 26 June 2023, [2.34].
Otherwise, the DFAT Country Information Report does not include reports of Alawites in Lebanon being targeted. There is also a similar absence of such reports in publications from other human rights and religious freedom monitors, including but not limited to the US Department of State 2023 Report on International Religious Freedom,[12] US Department of State 2023 Country Reports on Human Rights Practices,[13] and Human Rights Watch World Report 2025: Events of 2024.[14] On the contrary, there have been recent media articles and reports of successful peacebuilding efforts between residents of Jabal Mohsen and Bab al-Tabbaneh and the Lebanese army.[15] [16] Numerous other similar examples of peacebuilding in the two neighbouring communities can also be found on the website of the Tripoli-based Lebanese not-for-profit NGO March
[12] 2023 REPORT ON INTERNATIONAL RELIGIOUS FREEDOM – LEBANON, US DEPARTMENT OF STATE.
[13] 2023 Country Reports on Human Rights Practices – Lebanon, US Department of State, 22 April 2024.
[14] World Report 2025: Events of 2024 – Lebanon, Human Rights Watch.
[15] 'In Tripoli’s Bab al-Tabbaneh and Jabal Mohsen, ex-rival fighters light up former frontlines with solar energy', L’Orient Today, 14 March 2024.
[16] 'Women-led peacebuilding creates bridges across rival Tripoli neighbourhoods', L’Orient Today, 08 March 2024.
Worryingly, however, there has been a rapid escalation in violence in recent days in the predominantly Alawite Syrian provinces of Latakia and Tartus. During fighting between security personnel of Syria’s interim Islamist government and al-Assad loyalists, which started when rebel forces ambushed security patrol, armed groups supportive of the interim Islamist government were accused of carrying out mass revenge killings of Alawite civilians, as a result of which thousands of Syrian Alawites have fled into Lebanon’s Akkar province.[17] [18] [19] The violence has reignited fears of sectarian violence in Jabal Mohsen and Bab al-Tabbaneh, prompting the Lebanese government to deploy security forces to Tripoli and surrounding areas where they have so far managed to maintain calm and prevent any alarming clashes.[20] [21] In Syria, the interim President has announced the establishment of an independent committee to investigate the incidents in Latakia and Tartus.[22]
[17] David Gritten, ‘Syria says operation against Assad loyalists over after deadly violence’, BBC News, 11 March 2025.
[18] Stephanie March, ‘Violence flares as Assad loyalists clash with forces of Syria’s new government’, ABC News, 11 March 2025.
[19] ‘Syria announces end of military operations against ‘Assad loyalists’ in Latakia, Tartus’, Middle East Monitor, 10 March 2025.
[20] Mohamad Ali Harisi, ‘Lebanon fears sectarian violence as 10,000 Syrian Alawites flee across border’, The National, 10 March 2025.
[21] ‘Lebanese forces 'heavily focused' on preventing conflict as Syrian Alawites flee across border’, Tehran Times, 12 March 2025.
[22] Murat Basoglu and Mohammad Sio, ‘Syria forms independent committee to investigate Latakia, Tartus incidents’, Anadolu Ajansi, 9 March 2025.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because he is either a refugee who satisfies the refugee criterion in s 36(2)(a) or a person who satisfies the criterion for complementary protection in s 36(2)(aa).
For the reasons discusses below, the Tribunal has concluded that the decision under review should be set aside and the application remitted to the Department for reconsideration, with the direction that the applicant satisfies s 36(2)(a) of the Act.
Identity and country of nationality
The applicant provided uncertified digital colour scans of a Lebanese passport bearing his claimed full name and date of birth to the Department in connection with his protection visa application. In the absence of evidence that the passport is a bogus document as defined in s 5(1) of the Act, and given checks of relevant departmental systems did not raise concern that the applicant has provided a false identity, the delegate accepted the applicant’s identity and citizenship of Lebanon as claimed.
The Tribunal has considered the aforementioned identity documentation in the applicant’s departmental file. The Tribunal has also had regard to the original of the applicant’s Lebanese passport which he presented for inspection at the commencement of the hearing. The Tribunal also accepts the applicant’s identity and citizenship of Lebanon.
The Tribunal finds the applicant’s country of nationality and his receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) is Lebanon.
Credibility and findings of fact
The first step in assessing whether the applicant engages Australia’s protection obligations is to determine the credibility of his claims and evidence. The applicant has consistently claimed to be an Alawite. On the basis that he has lived in Jabal Mohsen which is well-known to be an Alawite neighbourhood of Tripoli since he was in [grade], and in the absence of evidence to the contrary, the Tribunal accepts he is an Alawite.
The Tribunal accepts on the basis of the translated digital photograph of the ISF identity card the applicant provided that he worked in the Lebanese ISF as claimed. The Tribunal accepts that, as an officer of the ISF working in the riot control unit, the applicant was involved in dispersing protestors who have gathered around [Location 1] in Beirut during the 2019 protests, and that he had beaten protestors with his baton during the riots that erupted. The Tribunal accepts that the protestors he beat included Sunnis, and whilst this is comparatively more speculative, the Tribunal nonetheless finds it is reasonably plausible that some of the Sunni protestors turned out to be residents from Tripoli, and even from Bab al-Tabbaneh specifically.
The Tribunal has doubts about the reliability of the evidence that the protestors who followed the applicant recognised him as hailing from Jabal Mohsen by conducting research on members of the riot control unit of the ISF, because it does not seem plausible that the ISF would make details of its rank and file officers readily and publicly accessible lest it places its officers under unnecessary security risk. However, the Tribunal is prepared to give the applicant the benefit of the doubt and proceed on the basis that if his image had indeed been captured on photo or video by protestors filming the riots, then his image could have been shared and viewed by lots of people through social media platforms, and it is possible that someone recognised him at some point as a person who may be an Alawite from Jabal Mohsen, even if they did not or were not able to positively identify him.
Assessment of refugee status
To satisfy the definition of ‘refugee’ for the purposes of s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Lebanon, and owing to that fear, is unable or unwilling to avail himself of the protection of Lebanon. This requires the Tribunal to be satisfied that if the applicant returned to Lebanon, there is a real chance he would suffer serious harm in the reasonably foreseeable future for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
‘Real chance’ is one that is not remote, insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Claims based on 2019 protests
The Tribunal has considered the claims and evidence advanced by the applicant as well as the witness statement provided by his brother. As the applicant was followed and threatened by the Sunni protestors from Bab al-Tabbaneh once only without any further instances of stalking and actual or threatened harm before he left Lebanon, despite the protestors’ confirmation that he is indeed an Alawite from Jabal Mohsen, it raises questions as to whether those protestors genuinely intended to harm him or whether they simply meant to intimidate him without a real intention to follow through. When this is considered in tandem with the fact that the stalking and threat incident happened more than 5 years ago, the Tribunal does not believe there is a real chance that the applicant would now or in the reasonably foreseeable future be targeted for serious harm by those protestors because of what happened during the 2019 protests, if he returned to Lebanon.
In forming this view, the Tribunal has had regard to the screenshots of social media posts from ISF’s X (formerly Twitter) account provided by the applicant in relation to the riots, including photos of protestors attacking ISF officers and photos of injured ISF officers, as well as the applicant’s evidence regarding his personal experience of being attacked on duty and that one of his former colleagues died in 2020 from injuries inflicted by protestors. The Tribunal also took into account the translated Arabic social media posts from local news outlets which the witness stated would more accurately demonstrate the frequency of attacks against ISF officers on the ground including in situations not otherwise ‘big enough’ to be picked up and reported by international media. The Tribunal does not dispute the fact that there were violent clashes between protestors and ISF during the riots that erupted from the 2019 protests. The Tribunal does not dispute that many ISF officers were attacked and seriously injured during the clashes and that some were even killed (in the same way that many protestors were violently dispersed and injured and that some were killed). Nor does the Tribunal dispute the fact that being subjected to abuse and threats while on duty is a hazard of working in law enforcement and public security, and that it can happen more often than is acceptable, particularly in Lebanon where people have a shorter fuse after many years of suffering because of the country’s political and economic crisis.
However, the fact that attacks and injuries occurred during the chaos of the 2019 protests and riots does not mean that ISF officers generally would now face a real chance of being attacked by protestors who took part in the 2019 protests, or in the applicant’s case, that he would now or in the reasonably foreseeable future face a real chance of being specifically targeted by the Sunni protestors from Bab al-Tabbaneh who in the 2019 protests just happened to be beaten by the applicant. To the extent that being subjected to abuse and threats on duty is a job hazard that the applicant could reasonably anticipate happening from time to time so that there is a real chance of it occurring, the applicant could remove that real chance by finding alternative employment. The Tribunal acknowledges that finding alternative employment could be difficult especially in Lebanon’s current economic situation and the applicant may have no option but to remain in the ISF (if he is even still in the ISF after being absent from duty for over 5 years). However, there is nothing to suggest that the applicant could not – if he is still in the ISF – at least reduce his real chance of being exposed to conflict situations by seeking reassignment away from frontline positions.
Therefore, the Tribunal finds the applicant does not have a well-founded fear of persecution because of what happened during the 2019 protests and ensuing riots.
Alawites and fall of Assad regime in Syria
Finally, the Tribunal has considered the applicant’s statutory declaration, his brother’s witness statement, and the article submitted by the applicant regarding the implications of the fall of the Assad regime in Syria. More importantly, the Tribunal has considered the implications of the events of last few days in the Syrian coastal provinces of Latakia and Tartus where large numbers of Alawite civilians were arbitrarily attacked and killed and more than 10,000 surviving Alawites fled across the border into Lebanon.
The Tribunal is cognisant of the history of Jabal Mohsen and Bab al-Tabbaneh as a microcosm of the broader conflicts between Sunni Islamists and Alawites who dominated and ruled Syria for decades under the Assad family, and for that reason the Tribunal is very aware of the potential implications of the fall of the Assad regime. Events of recent days show that the fears of reprisal from Syrian Alawites after the fall of the Assad regime are not unfounded, and they have undoubtedly elevated the already heightened state of anxiety in Tripoli. In the context of what has happened, the Tribunal finds that there is a real chance – in that it is not remote or far-fetched – that there could indeed be a resurgence of sectarian tensions in Tripoli. In particular, the Tribunal considers that the influx of Syrian Alawites into northern Lebanon would – unless external assistance is provided – stretch the resources of local areas which are already amongst some of the poorest in Lebanon, and this could breed and exacerbate resentment towards Alawites (both Syrian and Lebanese) even amongst moderate Sunni Lebanese. In turn, this could reignite simmering sectarian tensions from the past which have been effectively contained in Tripoli in the last decade. If this happened, there is a real chance that if the applicant returned to Lebanon, he would face harm directed at him not from the Sunni protestors of Bab al-Tabbaneh because of what he did as an ISF officer in the 2019 protests, but simply because of his profile as an Alawite.
However, the applicant will not be considered to have a real chance of serious harm if there is effective state protection available to him. The applicant is an officer of the ISF. There is no reason for the Tribunal to believe that his ISF colleagues would not support and protect him as one of their own. Even if the applicant is no longer part of the ISF because of his extended absence of more than 5 years from duty, there is still no reason for the Tribunal to believe that the ISF would not protect him as a member of the Lebanese Alawite community and as a member of the general Lebanese population. Furthermore, the Tribunal notes that in the wake of recent violence in Syria and to prevent the feared resurgence of sectarian violence in Tripoli from materialising, the Lebanese government has deployed additional security forces to Tripoli to bolster existing LAF that have already been working on the ground building bridges between Jabal Mohsen and Bab al-Tabbaneh residents to maintain calm and order in the area, and that they have managed to keep things under control so far.
Notwithstanding this, in weighing the protective measures available against information in the DFAT Country Information Report about the effectiveness of state protection in Lebanon, the Tribunal finds on balance that the applicant is not able to remove or reduce his risk of harm to something less than ‘real chance’. In particular, the Tribunal notes the following from the DFAT Report:
“Lebanon’s economic crisis has meant that members of the security forces have suffered the same slump in real income as have other civil servants, affecting their ability to support themselves and their families. Security forces have been struggling to manage the consequences of compounding crises, with LAF officers and soldiers needing to increase and intensify operations across Lebanon since 2019, despite a more limited resource environment and increasing desertions. According to military sources cited in international media, desertions from the LAF since 2019 may be as high as 5,000. In-country sources report that members of the security forces have been among those who attempted irregular migration from Lebanon.
Security forces in Lebanon are factionalised and often fail to coordinate effectively, sometimes competing openly and even clashing within and across units and services. Private security firms are reportedly on the rise in Lebanon, and are typically affiliated with powerful political figures, acting with some level of impunity. Sources suggest that some businesses do not find the police to be reliable in protecting them.
International media sources report that the salary of a junior officer in the LAF in July 2021 was worth about 7.5 per cent of what it was a year earlier and that many soldiers had resorted to growing their own food due to supply limitations. The LAF is reportedly worried that soldiers will go absent without leave (AWOL) in order to support themselves and their families. DFAT has no information about recent punishment for being AWOL. In-country sources report that end-of-service pensions, normally an incentive for long-term loyal service, are effectively worthless due to the currency devaluation and that some LAF are joining other Lebanese and Syrian refugees in exploring migration options, including irregular migration. In September 2022, retired servicemen clashed violently with security forces outside Parliament as a protest against their financial situation.
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.”[23]
[23] DFAT Country Information Report – Lebanon, Department of Foreign Affairs and Trade, 26 June 2023, [5.2]-[5.3], [5.5]-[5.6].
The economic crisis affecting Lebanon has not improved in the time since the DFAT Report was released almost 2 years ago. Whilst the recent election of a new Lebanese President and new Prime Minister offers hope for reform and reconstruction, any improvement is not going to be immediate which means the deficiencies in the security forces’ capacity caused by the economic crisis of the last few years can be anticipated to continue for some time. In circumstances where the LAF is now also expected to take over security responsibility for south Lebanon following Hezbollah’s degradation after the war with Israel as part of the ceasefire agreement, it is not unreasonable to think that the LAF’s resourcing and capacity is fairly thinly spread. Whilst security forces have so far managed to keep a lid on things in Tripoli, the possibility of Tripoli becoming a flashpoint yet again is not inconceivable, for the reasons the Tribunal already discussed. Should this occur, it is possible that the security forces would not be able to provide adequate and effective protection from sectarian-based harm to the minority Alawites, including the applicant if he returned to Lebanon.
Accordingly, the Tribunal finds there is a real chance that the applicant would be harmed in the reasonably foreseeable future for the essential and significant reason of his religion as an Alawite. The Tribunal finds that the harm would likely involve serious physical harassment and ill-treatment amounting to persecution, and that the persecutory conduct would be systematic and discriminatory in that it would part of a course of systemic and discriminatory conduct directed by Lebanon’s Sunni population to the Alawite community generally and to the applicant specifically because he would be identified as part of that community.
Further, the Tribunal finds that it is not possible for the applicant to avoid the feared harm by relocating to other parts of Lebanon. The fact that the applicant is an able-bodied young man unencumbered by family responsibilities, and that he has previously lived in south Lebanon as part of his LAF deployment, are matters that weigh in favour of possible relocation. However, in circumstances where Alawites in Lebanon consist of less than 0.6% of the population[24] and they are all concentrated in Jabal Mohsen in Tripoli, the Tribunal considers it would be unreasonable to expect the applicant to relocate elsewhere where he does not have any religious and social links and would likely be unable to establish new religious and social links because of his profile as an Alawite (unlike when he was part of the LAF and therefore had at least a miliary support network around him). It is also not possible to expect or require the applicant to avoid the feared harm by concealing the fact that he is an Alawite, since behavioural modifications that involve alteration of religious beliefs, including by concealing one’s true religious beliefs or ceasing to practise one’s faith, are expressly prohibited under s 5J(3)(c) of the Act.
[24] 2023 Report on International Religious Freedom: Lebanon, US Department of State.
For the reasons discussed, the Tribunal finds the applicant has a real chance of suffering serious harm in the reasonably foreseeable future because of his religion as an Alawite, if he returned to Lebanon. His fear of persecution is well-founded and he meets the definition of ‘refugee’ for the purposes of s 36(2)(a) of the Act.
Right of entry to third country
Finally, as there is no evidence before the Tribunal that the applicant has a right to enter and reside in a country apart from Australia, the Tribunal finds that s 36(3) of the Act does not apply to him.
DECISION
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) of the Migration Act.
Date of hearing: 7 February 2025
ATTACHMENT - Extract from Migration Act 19585 (1) Interpretation
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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.
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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.
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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.
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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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