2013087 (Refugee)
[2025] ARTA 1063
•11 March 2025
2013087 (REFUGEE) [2025] ARTA 1063 (11 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2013087
Tribunal:General Member J Ermert
Date:11 March 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 11 March 2025 at 9:43am
CATCHWORDS
REFUGEE – protection visa – Lebanon – political opinion – opposition to the government – anti-Hezbollah opinion – religion – Christian – attacks on demonstrators – economic and political crisis in Lebanon – fear of detention – possibility of another civil war – fear of Islamic State incursions – internal relocation – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33Any 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 16 November 2019. The delegate refused to grant the visa on 18 August 2020 on the basis that the applicant is not a person in respect of whom Australia has protection obligations. On 21 August 2020, the applicant applied for review of the protection visa refusal decision with the Administrative Appeals Tribunal (‘AAT’).
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 3 February 2025 to give evidence and present arguments.
BACKGROUND
The applicant is [an age year] old male from Lebanon who was born in [Village 1] in the Zahle District of the Beqaa Governorate, and he is an Orthodox Christian. He is one of two children in the family with a [sister], who works for an [agency] based in Lebanon. His father worked as [an occupation 1] in [Country 1] but returned to Lebanon at the end of 2019/early 2020 when his employment contract ended. Currently his parents and sister are all living together in Zahle, Lebanon, and he contacts them daily, sometimes several times a day, by video call or messaging service on WhatsApp.
After completing his university degree in [Subject 1] at [University 1] in [specified year], the applicant worked in a [business 1] until his departure from Lebanon.
The applicant first arrived in Australia [in] November 2018 on a Class FA Subclass 600 visitor visa to attend a cousin’s wedding, and he departed Australia [later in] November 2018. [In] September 2019, the applicant returned to Australia on another visitor visa to visit relatives including an uncle who was unwell. Due to the deteriorating situation in Lebanon at the time, the applicant decided to lodge an application for the grant of a protection visa, and he has remained in Australia since.
The Tribunal accepts each of the above matters to be true.
Evidence before the Department
The applicant’s protection claims as articulated in his protection visa application can be summarised as follows. Due to the political instability and worsening economic crisis in Lebanon since the end of the civil war, chaos exists everywhere that detrimentally affects the people of Lebanon who are unable to maintain a decent standard of living. Inflation, cost of living and unemployment rate is high, and there is a severe shortage of essential supplies like fuel, medication and so on, which means people are unable to move freely or warm their houses in winter and hospitals are not able to adequately treat patients. People who take to the streets to protest against the country’s worsening conditions and demand improvements are attacked by pro-government supporters. As someone who sympathised with and supported the protestors, he fears that he would be arrested as soon as he arrived at the Rafik Hariri International Airport if he returned to Lebanon. He would not be able to get any help to protect him from the harm he fears because the corrupt government only helps those in positions of influence and their family members.
In support of his protection claims, the applicant provided links to online reports and articles regarding the excessive use of force against protestors by Lebanon’s security forces to the Department.
The applicant was interviewed in relation to his protection claims on 30 July 2020, during which he reiterated the protection claims he made in his protection visa application. The worsening political and economic situation in Lebanon has led to widespread protests (hereafter referred to as ‘the revolution’). The Lebanese government, which Hezbollah is a part of, cracked down on the protests using heavy-handed measures. As the applicant has posted opinions critical of the government and Hezbollah on social media and as he has participated in a rally [at location 1] in Melbourne, he fears he would be targeted as a sympathiser and supporter of the revolution and that he would be arrested on arrival in Lebanon by Hezbollah which has de facto control of the airport. The applicant also fears for his personal safety because of the possibility of war with Israel as well as the possibility of another civil war in Lebanon caused by sectarian conflict.
The delegate refused the applicant’s protection visa application on the basis that the delegate was not satisfied there is a real chance that the applicant would be targeted or seriously harmed by Hezbollah because of his actual or imputed anti-Hezbollah political opinion. The delegate also found the applicant’s fear of possible civil war, or war with Israel, to be speculative and accordingly the delegate did not accept there is a real chance that the applicant would be seriously harmed because of these armed conflicts. With respect to the applicant’s claimed fear of harm arising from the chaos that accompany the protests taking place across Lebanon, the delegate was not satisfied there is a real chance that the applicant would be seriously harmed for that reason. In particular, because the applicant was already outside Lebanon when the countrywide protests which commenced in October 2019 and continued into 2020 occurred, the delegate was not satisfied that as an ordinary citizen the applicant would be seriously harmed on account of the protests and political instability.
Evidence before the Tribunal
Pre-hearing submissions
The applicant provided a supporting statement alongside his review application. In summary, the applicant feared that firstly, Lebanon and Israel were on the brink of war following the 4 August 2020 explosion in the port of Beirut which Hezbollah has blamed on Israel and threatened retaliation. Furthermore, the applicant feared outbreak of civil war in Lebanon from the Sunni-Shia fissure following the conviction of Hezbollah operatives over their involvement in the 2005 assassination of former Lebanese Prime Minister Rafik Hariri, about which his son Saad Hariri (who was the Prime Minister of Lebanon at the time) has announced that Hezbollah must ‘pay back in blood’.
Second, the applicant feared that because the revolution was ongoing particularly after the explosion in the port of Beirut, he would be at continued risk of harm on arrival at the airport from Hezbollah for being a supporter of the revolution, in circumstances where Hezbollah, as part of the government, was deploying increasingly violent methods to deal with protestors.
Third, because the covid-19 situation in Lebanon was worse than in Australia, returning to Lebanon where there are lax health and safety controls and where there is not an adequate healthcare system would put his personal health and safety at risk.
The applicant also provided links to Facebook posts, many of which the Tribunal is unable to access, relating to use of excessive force by members of the Lebanese security force against civilian protestors in the days following the explosion in the port of Beirut, including a graphic reel of a female protestor who was shot directly in the face by a rubber bullet.
In late 2024 and immediately before the hearing, the applicant provided to the Tribunal additional links to online articles and reports of Israeli attacks on Lebanon, including airstrikes in the applicant’s home region in the Beqaa Valley in purported targeting of Hezbollah strongholds, and articles relating to the 27 November 2024 ceasefire agreement between Israel and Lebanon which, although it has so far held, is fragile as Israel and Hezbollah continue to launch sporadic attacks against each other (more so on Israel’s part than Hezbollah). The applicant also provided two witness statements from individuals who wrote about their on the ground, personal experiences of the conflicts in Lebanon and the miseries and devastation that the conflicts have inflicted on people’s lives.
Evidence at hearing
During the hearing, the Tribunal summarised the applicant’s protection claims made before the Department and at review which the applicant agreed are accurate. The applicant confirmed that, except for the claim relating to the lax covid-19 control measures in Lebanon which he no longer presses because the pandemic is over, he maintains all of the other claims already made, including the poor state of Lebanon’s healthcare system.
In response to the Tribunal’s invitation to elaborate on why he still maintains the agreed protection claims and what he believes would happen to him if he returned to Lebanon, the applicant claimed that his home region of Zahle in the eastern part of Lebanon has been the subject of ongoing airstrikes and bombardment from Israel during the Israeli war against Lebanon, which he claimed has continued despite the ceasefire. In particular, he has major concerns that [University 1] he attended and where he would like to pursue a [further course] if he returned home would be targeted by Israel along with local schools and hospitals in the pretext that there are underground Hezbollah bunkers. The applicant claimed the risk of Israeli airstrikes on the university is exacerbated because the majority of students at the university are Shias many of whom are in some way affiliated with Hezbollah, e.g. as recipients of Hezbollah-funded scholarships.
Furthermore, the eastern border of Lebanon with Syria, which is [distance] away from his hometown of [Village 1] in Zahle, is controlled by jihadist extremists and members of the Islamic State who are now trying to expand their territory into Lebanon. In the few weeks before the hearing, there was fighting between the Islamic State[1] and the Lebanese Armed Forces which were trying to push them back. The applicant fears that if the Islamist State managed to gain ground in Lebanon, they would forcibly recruit and convert Christian men like him to join their cause and fight for them, and if he refused he would be captured as a prisoner of war, or worse still, he could be dismembered or killed (as people on the ground have allegedly witnessed but which the applicant claimed is not reported in the news).
[1] Following the fall of the Assad regime in Syria, parts of Syria bordering Lebanon have fallen under the control of Hayat Tahrir al-Sham (‘HTS’) (Audrey Courty, ‘Syria in a map: who controls what now that Assad is gone’, ABC News, 13 December 2024) which is affiliated with Syria’s Islamist interim administration. HTS has historical connection with Islamic State, as Islamic State leader Abu Bakr al-Baghdadi was involved in the formation of HTS’s predecessor Jabhat al-Nusra (‘Hayat Tahrir al-Sham: Terrorism Backgrounders’, Centre for Strategic International Studies).
The Tribunal asked the applicant why the Islamic State would target Christian men like him in their recruitment drive instead of targeting like-minded Muslim men, to which the applicant responded that it is because the Islamic State wants to expand their numbers and have more people fight for them. In addition, the Islamic State seeks to convert Christians who they perceive as anti-Islam whereby Islamic State militiants or mercenaries forcibly enter Christian homes to destroy Christian artefacts and even smash up bottles of alcohol as a means of enforcing their religious agenda. Anyone who dares to stop them is severely punished, and the Lebanese Army is incapable of preventing this from happening because unlike the situation previously where the security of the border region was maintained by the Assad regime in agreement with the Lebanese army and Hezbollah, the Lebanese army does not have the capacity to maintain border security on its own now that Hezbollah has been immobilised by Israel and the Assad regime has collapsed.
The applicant claimed that it is not possible for him to avoid the risk of harm from Israeli bombardment and Islamic State incursions by relocating away from Zahle because his family is in Zahle and because he does not have the means to buy or rent accommodation in another city. In any event, many parts of Lebanon including Beirut have been under bombardment and there is nowhere he can go where he would feel safe. As [an occupation 2], there would be many opportunities for him to find work if he returned to Lebanon to work on reconstruction projects in cities and areas that have been damaged or destroyed by Israel, but he fears this could exacerbate his risk of harm from Israeli attacks because of Israel’s association of those locations with Hezbollah strongholds.
The Tribunal asked the applicant why it is not possible for him to explore relocation to Tripoli and surrounding regions which have largely escaped Israeli airstrikes, acknowledging but putting aside what he had already said about the difficulties of relocation. The applicant stated that Tripoli and the surrounding regions are predominantly Sunni which is why they have largely avoided Israeli airstrikes targeting Hezbollah whose support base is Shia. Whilst Tripoli and the surrounding areas may have a reduced risk of Israeli airstrikes, he still cannot relocate to those areas due to fears that he would be forced to convert to Sunni Islam and join the Islamic State which he believes is even more likely to happen than in Zahle due to those regions’ mainly Sunni population. Moreover, recent sectarian fighting in Naher al bared between Sunnis from Tripoli and the Lebanese Armed Forces shows that the region is not safe for innocent civilians (including him if he relocated there) who could get caught up as bystander casualties.
In relation to the Tribunal’s query as to why the applicant still believes he would be arrested by Hezbollah as soon as he arrived at the airport on account of his previous criticism of the Lebanese government and Hezbollah in support of the revolution, the applicant claimed that although the Hezbollah leadership has been significantly weakened, Hezbollah is still there and still controls the airport. Further, the gap in their leadership has created opportunities for the Hezbollah rank and file to do whatever they want unchecked which the applicant claimed increases his level of risk of arrest. The Tribunal queried why the applicant would come to Hezbollah attention for criticising Hezbollah (and the government) when he was already in Australia when the revolution broke out in Lebanon, to which the applicant stated although he did not directly criticise Hezbollah as such, his social media posts supporting the revolution could impute to him anti-Hezbollah opinion which would bring him to Hezbollah’s attention.
The Tribunal invite the applicant to comment on information from the DFAT Country Information Report which the delegate had also relied on in their decision which suggests that although Hezbollah targets all perceived adversaries that might represent a threat to its control, it is particularly attuned to and oppressive of critics within its Shia support base and non-Shia criticism is tolerated. The applicant strongly disagreed with this information and referred to Hezbollah’s assassination of former Prime Minister Rafik Hariri who was Sunni, as well as attacks on many other politicians of all religious denominations. The applicant conceded he does not have a high profile like the politicians who were specifically targeted by Hezbollah, but fears that if he returned to Lebanon he could be the subject of ‘revenge attack’ from armed and stupid young men of the Hezbollah rank and file or the Hezbollah support base around his hometown who are ready to step up to fill the void left by those who were taken out by Israel.
With respect to the applicant’s claimed fear of civil war, although it has so far not materialised, the applicant maintains his fear of it because the entire Lebanese population is at the end of its tether after years of political and economic crisis. Against such backdrop, the applicant claimed it would not take much for something as minor as a traffic incident to escalate disproportionately in scale to a full-blown civil war. With Hezbollah still armed (albeit weakened) and with Hezbollah now operating unchecked as a result of the loss of its senior leadership to Israeli attacks, the applicant fears Hezbollah could use small, localised conflicts as the pretext for reigniting major sectarian conflicts. If that were to occur, the applicant fears he would be personally targeted by Hezbollah on the one hand for supporting the revolution, and by Sunni Lebanese on the other hand for hailing from an area of Lebanon which, although it is mostly Christian in population, is near predominantly Shia-populated areas.
The Tribunal and the applicant discussed how the harm he fears would be directed at him personally, given much of the feared harm is also faced by the general population. The applicant claimed as a young man and [an occupation 2], he has an elevated risk of being forcibly recruited (including possible forced religious conversion) to assist with Lebanon’s reconstruction efforts, with the possibility of reprisal if he resisted. The Tribunal and the applicant also discussed the possibility of reform in Lebanon away from sectarian politics following the recent election of President Joseph Aoun who was previously the head of the Lebanese Armed Forces and does not appear to be aligned with any specific side of politics, and Prime Minister Nawaf Salam who was most recently the President of the International Court of Justice at The Hague. The applicant stated that whilst these recent elections offer some hope, he does not believe anything will change substantively because sectarian politics in Lebanon is too deeply entrenched and the new President and Prime Minister’s elections were only political moves aimed at attracting overseas donors and investors.
The Tribunal asked the applicant who made the witness statements he provided pre-hearing and if he is related to the witnesses, given he and the witnesses share the same last name. The applicant confirmed that they are related and that the witnesses are his [sister] and a second cousin.
Post-hearing submissions
Following the hearing, the applicant resubmitted country information reports and articles that he previously submitted pre-hearing in support of his protection claims in PDF format, due to discussions at the hearing in which the Tribunal mentioned that it is only able to access some but not all of the links to the submitted news media reports and articles. The country information reports and articles the applicant provided relate to Israel’s attacks on Hezbollah strongholds including areas near the applicant’s hometown in the Beqaa Valley before the ceasefire deal was struck, as well as Israel’s breaches of the ceasefire agreement by continuing to attack specific targets in Lebanon it claimed are Hezbollah’s weapons storage facilities etc.
The applicant also provided PDFs of additional news media reports, including some that are quite dated, in support of his claims at the hearing relating to his fears of Islamic State incursions across the border into Lebanon following the fall of the Assad regime in Syria and the takeover of control by Hayat Tahrir al-Sham (‘HTS’) which is a militant group designated by the UN Security Council as a terrorist organisation and which is affiliated with Syria’s Islamist interim administration, and his fears of forced recruitment into HTS.
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.
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) of the Act, or a person who satisfies the complementary protection criterion in s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and country of nationality
The applicant has provided scanned copies of his Lebanese national ID card and the biodata page of his 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 these identity documents for which copies were provided to the Department are bogus documents 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 has accepted the applicant’s identity and citizenship of Lebanon as claimed.
The Tribunal has considered the aforementioned identity documents on the applicant’s departmental file. The Tribunal has also had regard to the original of the applicant’s Lebanese passport which was presented for inspection at the hearing and a copy of which was provided to the Tribunal. In the absence of evidence that the applicant is not the person he claims to be, the Tribunal also accepts the applicant’s identity and citizenship of Lebanon.
The Tribunal finds the applicant’s country of nationality and receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Lebanon.
Credibility and findings of fact
The first step in assessing the applicant’s protection claims is to determine the credibility of those claims. The applicant has consistently claimed to be an Orthodox Christian from Zahle in Lebanon. A map of Lebanon’s religious demographics shows that Zahle is an area populated by mostly Christians of different denominations including Orthodox Christians (notwithstanding its proximity to predominately Shia Muslim regions including a significant part of the Beqaa Valley to the north and east of Zahle).[2] At the commencement of the hearing, the applicant made an oath on the Bible to give truthful evidence, and during the hearing, he made brief reference to his regular attendance at [Church 1] [Details deleted.][3] On the basis of all of the above, the Tribunal accepts and finds the applicant is an Orthodox Christian from Zahle as claimed.
[2] Lebanon’s religious demographics, [Source deleted.]
The Tribunal also accepts on the basis of the applicant’s presentation where he spoke articulately and confidently in English during the hearing, and in the absence of evidence to the contrary, that he went to university in Lebanon where he studied [Subject 1]. The Tribunal also accepts based on the coherent evidence given by the applicant, supported by relevant country information, that he last came to Australia [in] September 2019 with the intention at the time he arrived of returning home to Lebanon, but due to the rapidly deteriorating situation in Lebanon following the outbreak of nationwide protests which often turned violent a few weeks after his arrival,[4] [5] [6] he decided to apply for a protection visa in Australia. Furthermore, the Tribunal accepts that he has posted opinions on social media expressing his dismay at the situation in Lebanon and his support for the protestors, and that he has participated in a rally [at location 1] in Melbourne.
[4] ‘Lebanon protests: five things you need to know’, Aljazeera News, 19 October 2019.
[5] ‘Lebanon protests explained’, Amnesty International, 11 November 2019.
[6] ‘Lebanon: excessive force against protestors’, Human Rights Watch, 20 December 2019.
Insofar as s 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of any new claims not raised or new evidence not presented before the delegate made the primary decision without reasonable explanation, and to the extent that the applicant’s claims at the hearing regarding the feared incursions of Islamic State into Lebanon following the collapse of the Assad regime in Syria and risk of forced religious conversion and recruitment into the Islamic State are new claims not raised before the delegate, the Tribunal considers that s 367A does not apply. The Tribunal is satisfied that the applicant has a reasonable explanation for not raising those claims earlier, because the Assad regime was still in place in Syria prior to the delegate’s primary decision and the applicant did not at that time have specific fears of Islamic State incursions over the border. In any event, the Tribunal accepts the applicant’s submissions when this was put to him at the hearing that his claims with respect to fears of forced recruitment by Islamic State are not really new claims per se, but rather they should be viewed as an extension of his original claimed fears of sectarian conflicts plaguing Lebanon and the broader region.
Therefore, having found that the applicant is an Orthodox Christian and [an occupation 2] from Zahle in Lebanon who supports the revolution, and who has expressed his support via the social media and participated in a rally [at location 1] in Melbourne, the question is:
(a)whether the applicant is a ‘refugee’ because of a well-founded fear of persecution in Lebanon; or alternatively,
(b)whether he engages complementary protection because there is a real risk that he would suffer significant harm in Lebanon,
when viewed against the backdrop of Lebanon’s political and economic crisis, the country’s history of sectarian conflict, the Israel-Hezbollah conflict and the subsequent ceasefire agreement, and the recent sudden collapse of the Assad regime in neighbouring Syria and implications for Lebanon.
Assessment of refugee status
To be eligible for the grant of a protection visa on the basis of being a ‘refugee’, 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 there is a real chance that the applicant would suffer serious harm in the reasonably foreseeable future if he returned to Lebanon, 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.
Fear of harm from Hezbollah
For convenience, the Tribunal will deal with the applicant’s claims with respect to fears of harm from Hezbollah first, noting that there are a couple of aspects to his claims – fear of arrest at the airport immediately upon return and arrival in Lebanon, and fear of harm from Hezbollah members or supporters in or around his hometown.
Turning first to his claim that he would be arrested by Hezbollah (which the Tribunal accepts has considerable influence over the operation of the airport, if not de facto control as the applicant claimed)[7] as soon as he arrived back in Lebanon because of their adverse interest in him arising from his online posts supporting the revolution and imputed anti-Hezbollah political opinion, the Tribunal does not accept there is a real chance that such arrest would occur, for the reasons which the Tribunal explains below.
[7] DFAT Country Information Report – Lebanon, Department of Foreign Affairs and Trade, 26 June 2023, [5.22].
The revolution sparked by the 17 October 2019 popular uprising and protests against the Lebanese political leaders’ systemic mismanagement of the country involved Lebanese civilians from all walks of life and across different religions and religious denominations. The refusal by Hezbollah’s then leader Hassan Nasrallah to back the protestors’ call for the government to step down, and his discrediting of protestors by suggesting they were influenced or funded by foreign embassies, triggered anger amongst even Shia protestors and led to clashes between protestors and Hezbollah (and Amal) supporters.[8] [9] [10]
[8] ‘Lebanon’s Nasrallah backs government amid raging protests’, Aljazeera News, 19 October 2019.
[9] Rebecca Collard, ‘Untouchable no more – Hezbollah’s fading reputation’, Foreign Policy, 29 November 2019.
[10] ‘Lebanon protestors and Hezbollah, Amal supporters clash in Beirut’, Aljazeera News, 25 November 2019.
However, notwithstanding the numerous credible reports of excessive use of force by the Lebanese government against protestors whilst the protests continued (including material provided by the applicant himself), the Tribunal has not found any article, report or evidence that suggests Hezbollah has independently or as part of the government systematically targeted, harassed and mistreated protestors and/or protest supporters who were actually or implicitly critical of it and the government after the revolution ended. Nor has the Tribunal found any evidence that Hezbollah arrested, and has continued to target and arrest, returning Lebanese citizens it has identified as having made social media or online posts supporting the revolution.
The Tribunal notes the applicant’s response disputing information from the DFAT Country Information Report that Hezbollah is particularly attuned to and oppressive of critics from within its Shia support base and that it tolerates non-Shia criticism. The Tribunal accepts the applicant’s objection. The Tribunal considers it is plausible that whilst Hezbollah may be particularly attuned to criticism from its Shia support base, its targeting of adversaries and critics is not exclusively confined to Lebanese Shias and extends to non-Shias that it perceives pose a serious threat to its position.
Nevertheless, the applicant has a comparatively low profile which is indistinguishable from that of thousands and thousands of ordinary Lebanese citizens (regardless of religion) who also supported or even participated directly in the revolution. Indeed, the applicant himself conceded in the hearing that his profile is not comparable to that of individuals who were the subject of reported assassinations and other attacks from Hezbollah. Given this, there is nothing that would cause the Tribunal to believe that the applicant’s online posts in support of the revolution and his participation in a rally [at location 1] in Melbourne alone would be considered by Hezbollah to pose a threat, or that these activities have somehow given him a profile more remarkable than that of other ordinary Lebanese citizens who participated in and/or supported the revolution, such that it caused or would cause him to come to Hezbollah’s attention. When this is considered in tandem with the absence of evidence that Hezbollah has independently or as part of the government systematically targeted protestors and/or protest supporters after the revolution ended as the Tribunal earlier noted, the Tribunal finds there is not a real chance that the applicant would be arrested as soon as he arrived at the airport, if he returned to Lebanon.
The second aspect to the applicant’s claimed fear of harm from Hezbollah relates to the risk that young, stupid and armed rank and file members and supporters of Hezbollah in or near his hometown would target him for ‘revenge attacks’ because of his imputed opinion critical of Hezbollah, and that with Hezbollah’s senior leadership mostly gone, they would conduct their revenge attacks in an uncontrolled and unchecked manner. For example, the applicant stated that these Shia young men could decide to go to the university (where he intends to study a [further course] if he returned) and start shooting or beating up people like him.
For the same reasons that the Tribunal does not believe the applicant would be arrested by Hezbollah as soon as he arrived at the airport upon returning to Lebanon because the Tribunal does not believe that his profile and past political activities in publishing online posts supporting the revolution and participating in the protest rally [at location 1] in Melbourne are such that they would cause him to come to Hezbollah’s attention or to be perceived by Hezbollah as a threat that needs to be removed, the Tribunal does not believe Hezbollah’s rank and file members and supporters in or near his home region would be aware of his past political activities and single him out for ‘revenge attack’ for that reason.
For completeness and avoidance of doubt, the Tribunal does not cavil with the possibility that the applicant could be harmed if he returned to Zahle (or indeed any part of Lebanon) in light of the anarchy that has occurred against the backdrop of Lebanon’s ongoing economic and political crisis which is interwoven with sectarian conflicts. However, the Tribunal finds any harm suffered by the applicant is more likely to be the result of him being ‘at the wrong place at the wrong time’ rather than the result of him being specifically and directly targeted by Hezbollah for his real or imputed political opinion arising from his online support of the revolution and participation in the rally [at location 1] in Melbourne.
Fear of harm from war with Israel
The above discussions segway conveniently into assessment of the applicant’s claimed fear of harm from Hezbollah’s war with Israel, so the Tribunal will deal with this claim next. The Tribunal accepts on country information, both that which the Tribunal has found and that which was provided by the applicant, that Israel has fiercely targeted Hezbollah and its strongholds in Lebanon during the war, including areas in the Beqaa Valley near the applicant’s hometown.[11] [12] Even after the ceasefire agreement was struck on 27 November 2024, considerable uncertainties remained over whether the ceasefire agreement would hold as Israel continued to launch aerial attacks on locations it alleged were Hezbollah military sites or weapons storage facilities and engaged in intensive clearing and razing operations in southern Lebanon,[13] [14] and as Israel and Hezbollah accused each other of failing to uphold their respective end of the ceasefire agreement.[15]
[11] ‘Israel-Hezbollah conflict in maps: ceasefire in effect in Lebanon’, BBC News, 28 November 2024
[12] Mohammed Hussein and Hanna Duggal, ‘Mapping over a year of cross-border attacks between Israel and Lebanon’, Aljazeera News, 13 October 2024
[13] ‘Lebanon ceasefire: despite extensive demolition, Israel says its job isn’t finished’, ACLED, 29 January 2025
[14] ‘Israeli airstrikes hit Lebanon-Syria border crossing, alleged Hezbollah sites in Bekaa’, Lebanon News, 10 February 2025.
[15] Ian Aikman, ‘Lebanon ceasefire deal extended as initial deadline passes’, BBC News, 27 January 2025.
Yet despite the uncertainties and Israel and Hezbollah’s accusations toward each other, and despite the ceasefire agreement having passed its extended deadline of 18 February 2025, the ceasefire agreement has so far held and there has been no resumption of or further escalation in armed conflicts between Israel and Hezbollah.
At the recent funeral of its former leader Hassan Nasrallah, despite attempt by Hezbollah’s current leader Naim Qassem to rally its supporters in a show of defiance against Israeli fighter jets fly over that Hezbollah ‘remains strong’ and ‘should not be underestimated’, many analysts consider that with its leadership, infrastructure, financial and military capacity severely weakened, Hezbollah has been left unable to now fight back against Israel in the same way it used to. The fall of the Assad regime in Syria has amplified Hezbollah’s woes and affected its immediate prospect of bounce back by removing a previously powerful ally and cutting off its source of and conduit for weapons supplies, including from Iran.[16] These factors have converged to force Hezbollah to reassess its position and adopt a much more collaborative posture in its relationship with the new Lebanese government formed by Prime Minister Salam, as demonstrated by its recent vote of confidence to the government despite previously not supporting Salam’s nomination for election as Lebanon’s Prime Minister.[17] [18] [19]
[16] ‘Assad’s fall in Syria will further weaken Hezbollah and curtails Tehran’s ‘Iranization’ of region’, The Conversation, 12 December 2024.
[17] Justin Salhani, ‘In post-war Lebanon, Hezbollah grapples with new relationship to the state’, Aljazeera News, 3 March 2025.
[18] Ramzi Abou Ismail, ‘The confidence vote and the hard conversations Lebanon can no longer avoid’, Now Lebanon, 27 February 2025.
[19] Dana Hourany, ‘A confidence boost’, Now Lebanon, 1 March 2025.
Therefore, whilst the Tribunal acknowledges and accepts that the war between Israel and Hezbollah has had a devastating impact on vast areas of Lebanon including areas near the applicant’s home region in Zahle due to its proximity to former Hezbollah strongholds (which is corroborated by witness statements the applicant provided), based on country information available to date regarding Hezbollah’s current situation, the Tribunal does not believe it is likely that the war with Israel would resume. Accordingly, the Tribunal finds there is not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future because of war with Israel, if he returned to Lebanon to his hometown in [Village 1], Zahle.
Even if the Tribunal was wrong and the war with Israel resumed contrary to expectation, similar to the Tribunal’s earlier finding with respect to the applicant’s claims relating to risk of serious harm from Hezbollah, the Tribunal finds that the applicant’s risk of exposure to serious harm or even death would be the consequence of the applicant being in a war zone rather than because of targeted attack directed at him by the warring parties Israel and Hezbollah. The applicant has claimed that as [an occupation 2], his risk of serious harm would be exacerbated by his being recruited to work on reconstruction of areas damaged or destroyed by Israel. However, even in such situation, the applicant’s risk of serious harm or death is no greater or worse than that of other civilians in the same area or elsewhere considered to be Hezbollah strongholds, regardless of his race, religion, nationality or political opinion, and regardless of whether he is a member of the particular social group of ‘[his occupation] in Lebanon working on reconstruction of Hezbollah stronghold locations previously damaged by Israel’.
Fear of civil war
The applicant also claimed to fear possible outbreak of civil war because of Lebanon’s traditional sectarian divide, which he fears would be triggered because of the conviction of Hezbollah operatives over their involvement in the 2005 assassination of former Prime Minister Rafik Hariri (who was Sunni), and because of Lebanon’s chronic and severe political and economic crisis which has put everyone on edge, so that even a minor incident like a traffic dispute has the potential to blow up disproportionately and reignite simmering sectarian tensions.
Turning first to the applicant’s fear of civil war triggered by the conviction of Hezbollah operatives for the assassination of former Prime Minister Rafik Hariri, the Tribunal notes that one of the accused Hezbollah members was convicted in 2020 while the other two accused Hezbollah members were convicted in 2022 on appeal.[20] However, neither of these convictions has led to civil war. Therefore, there is no reason for the Tribunal to believe that the convictions would now cause a civil war to erupt in Lebanon based on the Shia-Sunni divide, particularly given the additional passage of time since.
[20] ‘Rafik Hariri killing: Hezbollah duo convicted of 2005 bombing on appeal’, BBC News, 11 March 2022.
As for the applicant’s fear of civil war arising from the Lebanese people’s sustained suffering under the country’s political and economic strife interwoven with the stresses of conflicts with Israel, the Tribunal has considered and weighed recent articles written by various Middle East analysts on the prospect of civil war in Lebanon. There are certainly concerns that the displacement of tens of thousands of Lebanese, mostly Shias from Hezbollah’s support bases in southern Lebanon, could lead to social fracturing along sectarian lines as reports surface of people from other neighbourhoods barring displaced Shia families from renting their homes due to fear of becoming targets of Israeli drones (or possibly out of simple discrimination). Whilst Lebanese people have largely shown each other solidarity against Israeli aggression during the war, the struggle to accommodate the displaced and provide care is fraying nerves and testing patience as well as placing strain on Lebanon’s already weakened infrastructure (including the healthcare system, which the Tribunal discusses later) on the brink of collapse after years of the country’s economic mismanagement.[21] [22]
[21] Sebastian Shehadi, ‘The haunting spectre of another Lebanese civil war’, New Statesman, 11 October 2024.
[22] Timour Azhari, ‘Mass displacement in Lebanon war revives spectre of sectarian strife’, Reuters, 16 October 2024.
In addition, there are divergent views on whether the new Lebanese President and Prime Minister should leverage Hezbollah’s diminished capacity to disarm it and shut it (and its sister party Amal) out of government. On the one hand, there is concern that if President Aoun and Prime Minister Salam do not take advantage of Israel’s degradation of Hezbollah to consolidate its setback, Hezbollah will simply regroup and reassert its dominance,[23] and the US deputy special envoy for the Middle East has stated in her recent visit to Lebanon on 7 February 2025 that “US has set clear red lines that Hezbollah must not be part of the new Lebanese government in any form.”.[24] On the other hand, there is the view that given Lebanon’s dire economic state, its postwar reconstruction needs, and the balance of political power in Lebanon, Prime Minister Salam is unlikely to meaningfully confront Hezbollah and risk escalating internal conflict and civil war which could last years and devastate the entire Lebanon.[25] Given Lebanon’s complex political dynamics and sectarian landscape, these are questions in respect of which it is difficult to predict with certainty what would happen in the future.
[23] David Schenker, ‘Lebanon headed towards promised sovereignty’, The Washington Institute, 8 January 2025.
[24] Sally Abou Aljoud, ‘US draws ‘red line’ over including Hezbollah in Lebanon’s government, new envoy says’, AP News, 7 February 2025.
[25] David Daoud, ‘Lebanon’s Prime Minister-designate is unlikely to confront Hezbollah’, Atlantic Council, 29 January 2025.
Notwithstanding the inherent volatility of the sectarian political situation in Lebanon and the difficulty in predicting the country’s future outlook, on balance the Tribunal finds there is not a likelihood of civil war in Lebanon in the reasonably foreseeable future. The Tribunal takes this view based on Hezbollah’s decision to grant a vote of confidence to Prime Minister Salam’s government and back a ministerial statement that omits ‘armed resistance’ and affirms the Lebanese state’s sole authority to bear arms and defend Lebanon.[26] Of course, such a concession contrary to Hezbollah’s longstanding position may simply be a temporary and tactical retreat by Hezbollah for self-preservation in circumstances where it does not currently have full control over its destiny – and what it does in the long term, and whether it is able to convince its base to accept a move away from militarism, is unknown. However, by extending an olive branch to Prime Minister Salam’s government and creating that extra bit of space for the government to focus on reform and reconstruction, the Tribunal considers that it would at least lessen the pressure from Israel and other foreign powers on the government to squeeze out Hezbollah and reduce the risk of alienation of Lebanon’s Shia population. Any improvement from the government’s efforts on reform and reconstruction would, in turn, ameliorate sectarian relations and reduce the prospects of civil war.
[26] Ramzi Abou Ismail, ‘The confidence vote and the hard conversations Lebanon can no longer avoid’, Now Lebanon, 27 February 2025.
For the reasons discussed, the Tribunal therefore finds there is not a real chance that the applicant would be seriously harmed in the reasonably foreseeable future because of the outbreak of civil war, if he returned to Lebanon. To the extent that any outbreak of civil war might cause the applicant to be exposed to serious harm and even possible death, the Tribunal finds such risk would be a risk faced by all of Lebanon’s population and is not a risk specific or personal to the applicant because of his race, religion, nationality, membership of a particular social group or political opinion.
Fear of religious conversion and recruitment into Islamic State
The Tribunal will now turn to the applicant’s claimed fear of being forcibly converted and recruited by members of the Islamic State from Syria, i.e. the HTS.
Open source searches online indicate that since the Assad regime in Syria collapsed, there have indeed been clashes along the Lebanon-Syria border between HTS militants affiliated with the new Islamist administration of Ahmed al-Sharaa and members of Shia Lebanese clans living in villages on the Syrian side of the border. [27] [28] [29] The clashes, which were ostensibly for the purpose of clearing out villages that were used as Hezbollah’s drug and weapons smuggling routes between Lebanon and Syria, have prompted the Lebanese army to step up security measures along the border by increasing the number of checkpoints, surveillance posts and patrols to curb Syrian incursions.[30] The clashes also led to a phone call between President Aoun and the interim Syrian President Ahmed al-Sharaa agreeing to coordinate efforts in securing the border region,[31] which was re-affirmed when the two leaders met on the sidelines of an Arab summit in Cairo on 4 March 2025.[32] Given such reports of border clashes, and given the proximity of the applicant’s hometown to the Lebanese-Syrian border, the applicant’s concerns of Syrian Islamist incursions into Lebanon are not baseless.
[27] ‘HTS militants, Qusayr residents clash, captives exchange completed’, Al Mayadeen (English), 6 February 2025.
[28] Rosaleen Carroll, ‘Four killed in Syria-Lebanon border clashes between HTS and clans: what to know’, AL Monitor, 7 February 2025
[29] ‘2 killed, 10 injured in clashes between Syrian militants, Lebanese tribes along border’, Xinhua, 8 February 2025
[30] ‘Why is the Lebanon-Syria border tense and is Hezbollah involved?’, The New Arab, 10 February 2025.
[31] Nader Durgham, ‘Border clashes prompt Shia clans to leave Syria for Lebanon’, Middle East Eye, 10 February 2025.
[32] ‘Lebanon, Syria leaders commit to managing border incidents’, Arab News, 5 March 2025.
Despite this, the Tribunal does not accept the border clashes and the possibility of spill over into the Lebanese side of the border means there is a real chance that the applicant would be forcibly converted to (Sunni) Islam and be recruited into the HTS. There is nothing in the media reports to suggest that the clashes involving HTS militants were carried out with the direct or indirect aim of expanding the Syrian Islamist administration’s territory into Lebanon or for the purpose of forcibly recruiting Lebanese citizens to swell its ranks, over and above the expulsion of Lebanese Shia residents from border villages said to have been used by Hezbollah for drug and weapons smuggling. Further, contrary to the applicant’s assertion that the Lebanese army is not capable of maintaining border security on its own without Hezbollah, the media reports indicate that forces of the Lebanese army rushed to the border have managed to keep the clashes from escalating out of control, and there is now agreement at the highest level of leadership from both Lebanon and Syria to coordinate security efforts at the border.
Based on this, the Tribunal finds that despite HTS and its predecessor Jabhat al-Nusra’s appalling past reputations for (among other things) mistreatment and persecution of religious minorities in Syria including Christians which explain the applicant’s fears,[33] [34] the Tribunal also finds that there is not a real chance that the applicant, as a Lebanese Christian, would be forcibly converted to Sunni Islam and recruited by Syrian HTS militants in the reasonably foreseeable future, if he returned to Lebanon back to his hometown in [Village 1], Zahle. In other words, the Tribunal finds there is not a real chance of such harm because the Tribunal finds there is not a real chance that the cross-border incursions feared by the applicant would occur without effective resistance from the Lebanese army.
Claim relating to state of healthcare in Lebanon
[33] ‘Factsheet – Religious Freedom in Syria’, US Commission on International Religious Freedom, November 2022.
[34] Natacha Danon, ‘Shades of grey: Aleppo’s Christians between HTS promises and painful memories’, Syria Direct, 5 December 2024.
Finally, the Tribunal will deal with the applicant’s claim relating to inadequacy of healthcare in Lebanon generally, rather than specifically in relation to covid-19 which he no longer presses due to the passing of the pandemic.
DFAT’s Country Information Report includes the following information in relation to healthcare in Lebanon:
“The Lebanese health system is a mix of private and public services. The system has been badly affected by the recent economic crisis. International media reported that it was ‘on the brink of collapse’ in January 2022, noting an outflux of doctors and nurses, as well as widespread corruption. Because of the economic crisis, many Lebanese who previously had private health insurance can no longer afford it and are relying on the public system. The economic crisis has affected supply chains for pharmaceuticals and basic medical supplies, which are often unavailable. According to Bertelsmann Stiftung, about half of the Lebanese population cannot access healthcare. Even those who can access healthcare are not always able to access medicines, which are either unavailable or very expensive.
In Lebanon, the National Social Security Fund (NSSF) is a form of mandatory insurance which covers formal employees and their dependents and is intended to meet the bulk of health expenses of the roughly 25 per cent of Lebanese who are covered by it. However, the NSSF has come under increasing pressure as Lebanon experiences its economic crisis; from 2020, it is increasingly unable to meet its commitments. In July 2022 local media reported that, on the assumption that the NSSF will never pay, hospitals are refusing to treat NSSF subscribers, unless they are willing to pay out of pocket, at market rates.”[35]
[35] DFAT Country Information Report – Lebanon, Department of Foreign Affairs and Trade, 26 June 2023, [2.15]-[2.16].
The dire state of Lebanon’s healthcare system reported by DFAT is corroborated by more recent reports from other international organisations which have also commented on the impact of the war with Israel. A news release by the World Health Organisation indicates that since the war with Israel commenced, more health workers and patients have been killed proportionally in Lebanon than in Ukraine and Gaza.[36] Médecins Sans Frontières has similarly raised concerns about the destruction of medical facilities which has exacerbated pressures on Lebanon’s healthcare system already overburdened by the economic crisis,[37] while Amnesty International called for Israel’s attacks to be investigated as a war crime, following its investigations into four Israeli attacks in Beirut and southern Lebanon in a single week between 3 and 9 October 2024 that killed or wounded multiple healthcare workers and damaged or destroyed multiple ambulances and two medical facilities.[38]
[36] ‘Lebanon: a conflict particularly destructive to health care’, World Health Organisation, 22 November 2024.
[37] ‘Lebanon on crisis’, Médecins Sans Frontières Australia, 4 October 2024.
[38] ‘Lebanon: Israeli attacks on health facilities, ambulances and paramedics must be investigated as war crimes’, Amnesty International, 5 March 2025.
The Tribunal finds on the country information that the state of Lebanon’s healthcare system is so dire that, should the applicant find himself in need of healthcare whether for illness or injury, there is a real chance he would not be able to access the care needed, and that even if he obtained the care, it is likely to be insufficient or inadequate because of the healthcare system’s severely compromised capacity.
However, although the Tribunal accepts that the inability to access sufficient and adequate healthcare could be serious harm that threatens his life, the Tribunal finds that the real chance of such serious harm is not for reason of the applicant’s race, religion, nationality, membership of a particular social group or political opinion. The inadequacy of Lebanon’s healthcare system, which is buckling under strains caused by Lebanon’s economic crisis and war with Israel, is a problem faced by all members of the Lebanese society and is not confined to and directed at the applicant alone for any of the enumerated reasons.
For all the reasons discussed above, the Tribunal finds there is not a real chance that the applicant would suffer serious harm in the reasonably foreseeable future from Hezbollah, the war with Israel or Lebanese civil war, or HTS militia affiliated with Syria’s Islamist interim administration, if he returned to Lebanon. To the extent that there is a real chance the applicant would suffer serious harm from not being able to access adequate healthcare when needed if he returned to Lebanon, the harm is not directed at the applicant for reasons of his race, religion, nationality, membership of a particular social group or political opinion. It follows, therefore, that the applicant does not have a well-founded fear of persecution in Lebanon and he does not meet the definition of ‘refugee’.
As the applicant is not a ‘refugee’, he does not meet s 36(2)(a) of the Act.
Complementary protection assessment
Having found the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered whether there are substantial grounds for it to believe that if the applicant was removed from Australia to Lebanon, there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of that removal.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court found that the ‘real risk’ test for the purpose of the complementary protection criterion imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion.
For the same reasons that the Tribunal finds there is not a real chance the applicant would suffer serious harm in the reasonably foreseeable future because of Hezbollah, the war with Israel or civil war, or HTS militia affiliated with Syria’s Islamist interim administration, the Tribunal finds there is not a real risk the applicant would suffer significant harm because of these reasons. As the Tribunal also discussed in the Refugee Status Assessment, even if the Tribunal was wrong in its assessment of the real chance of the feared harm, the Tribunal finds the harm to be the result of the applicant getting caught up in armed conflicts and being ‘in the wrong place at the wrong time’ rather than as a result of the persecuting agents – whether Hezbollah, Israel, other Lebanese of different religious faith or denominations, or HTS militia – targeting him because of some attributes personal to him.
As for the dire state of Lebanon’s healthcare system where there is a real risk that the applicant would be denied access to adequate service if it was ever needed, the Tribunal does not consider it to be ‘significant harm’ because it does not involve arbitrary deprivation of life or the carrying out of the death penalty. Nor is it torture or cruel, inhuman or degrading treatment or punishment because the Lebanese healthcare system’s likely inability to meet the applicant’s healthcare needs would be simply a symptom of its severely depleted capacity and not something done with the intention to inflict on the applicant severe physical or mental pain or suffering or to cause him extreme and unreasonable humiliation. As a problem that is faced by the Lebanese population generally rather than the applicant personally, the Lebanese healthcare system’s depleted capacity is also something that, even if it was ‘significant harm’, it would be excluded pursuant to s 36(2B)(c).
Accordingly, the applicant also does not meet s 36(2)(aa) of the Act.
Other criteria – member of same family unit
Finally, the applicant has not claimed to be a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa of the same class as that applied for by the applicant. There is also no evidence suggesting otherwise to the Tribunal. Therefore, the Tribunal finds that the applicant also does not meet s 36(2)(b) or s 36(2)(c) of the Act.
In conclusion, and notwithstanding the Tribunal’s sympathy for the applicant’s desire to remain in Australia due to the volatile security situation in Lebanon and due to the country’s political and economic situation which only time will tell whether President Aoun and Prime Minister Salam would be able to successfully reform and steer back on track, the Tribunal finds the applicant does not meet the criterion for protection visa in s 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 3 February 2025
ATTACHMENT - Extract from Migration Act 19585 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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