2105421 (Refugee)

[2023] AATA 2655

2105421 (Refugee) [2023] AATA 2655 (18 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rayan Hazim (MARN: 1685918)

CASE NUMBER:  2105421

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Mark Bishop

DATE:18 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 18 May 2023 at 3:06pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – Federal Circuit Court remittal – particular social group – children suffering with mental health issues – Autism Spectrum Disorder (ASD) – Attention Deficit Hyperactivity Disorder (ADHD) – anxiety – availability of state protection – access to necessary specialist medical services – ongoing economic crisis – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 January 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Lebanon applied for the visas on 20 April 2016. The delegate refused to grant the visas.

3. The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court of Australia (FCCA). The matter is now before the Tribunal pursuant to an order of the Court. The order of the FCCA was expressed as follows:

   oThe first respondent (the Minister) concedes that the decision of the second respondent dated 2 September 2020 (AAT case number 1701714) is affected by jurisdictional error. Specifically, the Minister concedes that the second respondent failed adequately to consider the claim that the applicants would face harm due to Lebanon's economic situation as it would be difficult for their parents to find work (the subsistence claim) against the complementary protection criterion in paragraph 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

   oThe second respondent rejected the subsistence claim against the criterion in paragraph 36(2)(a) of the Act by finding that it was not satisfied that the claimed difficulties 'constituted a well-founded fear of persecution for a refugee reason' (at [82]) or that the applicants faced a real chance of serious harm on this basis for any of the reasons outlined in subsection 5J(5) of the Act (at [83]). The Minister concedes that these findings were based on concepts solely relating to the assessment of the criterion in paragraph 36(2)(a) of the Act.

   oThe second respondent then proceeded to assess the subsistence claim against paragraph 36(2)(aa) of the Act by adopting its anterior findings without any additional consideration specific to the complementary protection criterion (at [90]). In doing so, the Minister concedes that the second respondent has failed to address the subsistence claim against the complementary protection criterion by reference to the language of the statute and by reference to its particular findings of fact: cf. SZSGA v Minister for Immigration and Multicultural Affairs and Citizenship (2013) FCA 774 at [54]–[56] per Robertson J.

4. The applicants appeared before the Tribunal on 18 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant’s husband, [Mr A], gave evidence to the Tribunal. At the conclusion of the hearing the solicitor for the applicants made oral submissions to the Tribunal.

5. The applicants were represented in relation to the review. For detail see coversheet.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

12. On 11 May 2023 the applicants provided legal submissions[1] to the Tribunal accompanied by autism reports[2], speech pathology reports[3] and occupational therapy reports[4] relating to the second applicant.

    [1] Doc ID number 11050699

    [2] Doc ID number 11050697

    [3] Doc ID number 11050698

    [4] Doc ID number 11050723

13. The legal submission addressed the following:

    Family background

    ·The applicants were both born in Australia and currently reside with their parents and siblings. The two applicants are currently [age] and [age] years of age. Two siblings aged [age] and [age] are part of the family unit.

    ·The applicants claims at the time of their protection visa application are set out in the Statutory Declaration dated 11 April 2016, legal submission dated 27 February 2020, and post hearing submission, in support of their application.

    ·On 20 April 2016, the Applicants applied for a protection visa application. Such application was refused by the Minister’s Delegate on 27 January 2017, as the Delegate was not satisfied that the Applicants were owed protection obligations as set out in subsections 36(2)(a) and (aa) of the Act.

    ·[In] April 2021, the (then) Federal Circuit Court remitted [5]to the Tribunal, further to an order by his Honour Judge Riethmuller.

    [5] See paragraph 3 above.

    Serious harm

    ·It is submitted that the Applicants will suffer serious harm as members of the particular social group of ‘children with mental health disorders in Lebanon.’

    ·In the case of the second applicant the detail of the harm relates to Autism Spectrum Disorder (ASD)[6], speech and occupational therapy[7] on an ongoing basis, an assessment of suffering from mild delay and a requirement of substantial support. In terms of the child’s markers on the Social Responsiveness Scale (SRS-2), the results indicate a severe rating in terms of social communication & interaction, restricted interests and repetitive behaviours. It further indicated definite dysfunction in social participation, hearing, body awareness, balance and motion, planning and ideas.[8]

    [6] See paragraph 12 of legal submissions in Doc ID number 11050699

    [7] See paragraph 13 of legal submissions in Doc ID number 11050699

    [8] See paragraph 14 of legal submissions in Doc ID number 11050699

    ·In addition the second applicant suffers from Attention Deficit Hyperactivity Disorder[9] (ADHD), for which he is medicated.

    [9] See paragraph 15 of legal submissions in Doc ID number 11050699

    Grounds of harm

    ·The Applicants will suffer harm in Lebanon on the following grounds:

    1.Their membership of a particular social group, namely being children suffering with mental health issues including autism, ADHD and anxiety;

    2.Complementary protection on the grounds of the degrading and humiliating treatment as people suffering with mental health issues;

    3.The inability of their parents to subsist in any corner of Lebanon in light of the country’s dilapidating economic and security situation.

    Relevant criteria

    ·The applicants submitted their claims satisfied both s 36(2)(a)[10] and s 36(2)(aa) of the Act, outside country of nationality[11] and a well-rounded fear of persecution.[12]

    [10] Australia’s protection obligations. See paragraph 22 of legal submissions in Doc ID number 11050699

    [11] See paragraphs 25 and 26 of legal submissions in Doc ID number 11050699

    [12] See paragraphs 27 to 32 of legal submissions in Doc ID number 11050699

    ·In particular the applicants submitted their fear of being persecuted because of their membership of a particular social group – being children the subject of a family dispute and being individuals with mental health problems. They will be unable to subsist in Lebanon without their parents. Their parents cannot subsist in Lebanon  due to their inability to locate employment. In addition, the Applicants fear that their mother and sister[13] will be persecuted because of their membership of a particular social group – being women in Lebanese society.

    [13] The Tribunal notes the mother and sister of the applicants are not applicants in the current review application.

    ·In addition the applicants submitted if they are forced to return to Lebanon, there is a real chance that they will be persecuted by their grandfather, the Lebanese community, and will be unable to access mental health treatment, including medication crucial to treat [the second applicant’s] ADHD diagnosis. In light of the current instability in Lebanon and the ineffectiveness of state agencies, the Applicants will not be afforded protection by the state[14].

    [14] See paragraphs 30 to 32 of legal submissions in Doc ID number 11050699

    Country Information (CI) – Lebanon

    ·The applicants made extensive reference to CI, academic articles, various government reports and various NGO reports that addressed in detail current economic conditions in Lebanon, the impact of this continuing deterioration in the  economy of Lebanon on children particularly as to accessibility of health treatment for specialised disorders due to the lack of availability of relevant trained professionals, the growth of academic, cognitive, and psychosocial problems experienced by children exposed to extreme poverty as well documented in the literature and a summary finding by the International Monetary Fund in its report dated 23 March 2023 titled Lebanon: Staff Concluding Statement of the 2023 Article IV Mission as follows:

    oLebanon is at a particularly difficult juncture. For over three years, it has been facing an unprecedented crisis, with severe economic dislocation, a dramatic depreciation of the Lebanese lira and triple-digit inflation that have had a staggering impact on people’s lives and livelihoods. Unemployment and emigration have increased sharply and poverty is at historically high levels . The provision of basic services like electricity, public health, and public education have been severely disrupted, and essential social support programs and public investment have collapsed. More broadly, capacity in public administration has been critically weakened. Banks are unable to extend credit to the economy and bank deposits are mostly inaccessible to customers. The presence of a large number of refugees exacerbates Lebanon’s challenges.

    oDespite the severity of the situation, which calls for immediate and decisive action, there has been limited progress in implementing the comprehensive package of economic reforms, set out in the Staff Level Agreement, notwithstanding some efforts

    oby the government. This inaction disproportionately harms the low-to-middle-income population and undermines Lebanon’s long-term economic potential. The Government, Parliament, and the Central Bank (BdL) must act together, rapidly and decisively to tackle longstanding institutional and structural weaknesses to stabilize the economy and pave the way for a strong and sustainable recovery.

    oThe economy remains deeply depressed . After contracting precipitously by about 40 percent since the start of the crisis, economic activity appears to have stabilized somewhat in 2022, driven by some recovery in tourism, further deleveraging of the corporate sector, and continued strong remittances inflows, which have supported consumption. However, many economic trends remain negative.

    oInflation is in triple digits, driven by a dramatic depreciation of the Lebanese lira, reflecting a lack of confidence in the Lebanese financial system, large increases in money supply, and the complex interplay of BdL circulars that gives rise to multiple exchange rates and speculative arbitrage.

    oThe collapse in budget revenue has forced a drastic and disorderly cut of public spending to minimal levels. Still, the government relies on central bank financing, accumulation of arrears and some donor assistance to support a budget deficit of over 5 percent of GDP. The deficit could be even higher, if the ongoing quasi-fiscal operations by the central bank—such as provision of FX at subsidized rates—are included.

    oThe banking sector is under enormous strain with an eroding capital position and substantial unrealized losses looming ahead.

    oAfter sharply improving in 2020-21, the current account deficit is estimated to have widened significantly to over 25 percent of GDP in 2022, mainly due to high oil and food prices and accelerating imports ahead of an expected exchange rate adjustment for tax purposes. The weak external position and ad hoc monetary policy decisions have

    oled to a steady decline in foreign reserves to about US$ 10 billion as of December 2022 (excluding gold), compared to US$36 billion prior the crisis.

    oLebanon is at a dangerous crossroads, and without rapid reforms will be mired in a never - ending crisis. Poverty and unemployment will remain high, and economic potential will continue to decline. A continuation of the status quo would further undermine trust in the country’s institutions and additional delays in implementing reforms will keep the economy depressed, with irreversible consequences for the whole country, but especially low-to-middle income households. High uncertainty will further weaken the external position and the BdL will continue to lose scarce international reserves. Exchange rate depreciation and spiralling inflation will remain unabated, accelerating the already high cash dollarization of the economy. The informality of the economy will further increase, reducing the scope for taxation and further depressing budgetary spending, while increasing the risk of illicit activities becoming entrenched in the economy. Without acknowledging and credibly addressing the large financial gap in the banking sector, the banks will not be able to provide meaningful credit to support the economy, and small depositors will continue to incur large losses on their FX withdrawals, while medium-to-large deposits will remain indefinitely locked. Emigration, particularly of skilled workers, would accelerate, undermining future growth prospects even further.[15]

    Health Care in Lebanon and Discrimination

    ·The applicants referred to supporting documentation that addressed the medical conditions of the second applicant inclusive of anxiety for both applicants.

    ·The applicants submitted “…the mental health care services in Lebanon are primarily provided by the private sector and are ‘skewed to specialised outpatient and inpatient care.’ DFAT’s country information report states that in ‘few cases’ will multiple mental health specialists work in multidisciplinary teams to provide services. There are ‘eight psychiatric wards in general hospitals that provide inpatient mental health services, and five active mental health hospitals.’ DFAT’s country information report notes that ‘mental health care has been an increasing public concern, particularly given Lebanon’s long and traumatic civil war…’. It is submitted that the already existing poor health care system in Lebanon has deteriorated further, due to the economic crisis and civil unrest in Lebanon. According to Human Rights Watch, ‘Lebanon’s medical practitioners and public officials are warning that hospitals may soon not be able to provide patients with life-saving surgery and urgent medical care because of a financial crisis.[16]”

    [15] See paragraph 35 of legal submissions in Doc ID number 11050699

    [16] See paragraph 40 of legal submissions in Doc ID number 11050699

    Gender Inequality, Violence against Women

    ·The Applicants fear that their mother and sister will be subjected to violence and ill treatment in Lebanon, by their grandfather. The Applicant’s mother has instructed our office that her father has conservative views about a women’s place in society: he expects women to wear the niqab, to pray five times a day, to be obedient to males and to strictly follow their religion. It is feared that should they be forced to return to Lebanon, the Applicants’ mother and daughter will subjected to physical violence by their grandfather, should they not obey him[17].

    ·According to DFAT’s country information report, the state detaches itself from civil affairs and personal status, ‘especially relating to women’s civic rights, family matters and gender relations. According to the Institute for Women’s Studies in the Arab World, by keeping family matters within the jurisdiction of religious courts, the Constitution detaches itself from its role as guarantor of equal rights and creates a buffer between citizen and state. Human rights observers have argued that, inspired by religious discourse, the religiously-based legal structure necessarily places women as second class citizens, treating them as minors in decisions governing their own lives.[18]’

    [17] See paragraph 43 of legal submissions in Doc ID number 11050699

    [18] See paragraph 44 of legal submissions in Doc ID number 11050699

1. In evidence the mother of the two applicant advised as follows:

   ·She and her husband jointly came to Australia in 2009 and have resided in this country since 2009. On one occasion in 2010 she returned to Lebanon. Otherwise neither her nor her husband have returned to Lebanon. She has 4 children the last two boys, aged [age] and [age], being born in Australia.

   ·She and her husband have a family business. Her husband has not been able to work in the business since he was attacked in the family home by unknown men and severely injured in 2019. He receives ongoing medical treatment inclusive of physiotherapy on a regular basis and whilst his physical condition is improving he cannot physically work. In any even he has a no work condition attached to his bridging visa. She is now the principal worker in the family business and acts as the main subcontractor to ensure work is done properly for clients.

   ·She comes from an ultra-conservative Islamic family and her father holds a senior position in his mosque and is effectively the leader of a very large Islamic family in their town. He is the local town leader and his word is effectively a direction to all of his many followers.

   ·Her father as sheik, is grossly dissatisfied with the way she has raised her 4 children in Australia and has expressed his concern and dissatisfaction on many occasions to her husband and herself. He has repeatedly demanded she return to Lebanon with her children so he can ensure they are brought up in a proper manner, unlike their current upbringing in Australia.

   ·Absent an order from the Tribunal she has no intention of ever returning to Lebanon and will continue to reside in Australia with her own family and raise her own children as she thinks appropriate.

   ·The second applicant suffers from severe autism[19] and ADHD. He was the subject of continuing bullying at his initial school as was the first applicant on account of the fact for 1 year the two siblings attended the same school. The second applicant is now at [named] primary school and is in receipt of extensive assistance inclusive of a dedicated teacher’s aide who acts to control the regular proclivities of the second  applicant to engage in physical attacks on his classmates.

   ·The first applicant is learning at a very slow rate, but is improving because of the extensive assistance provided by the school. In addition he ha been set relatively minor goals as an aid to his learning and is progressing at a satisfactory rate.

   ·She is fearful of the direct harmful consequences to the two applicants if they should be forced to return to Lebanon. These consequences for the family and the two applicants include being forced to live away from their father as her own father holds him in contempt, being the subject of gross bullying and physical attacks by family, schoolmates, and townspeople because in Lebanon autism is regarded as being crazy and crazy people are ostracised. She similarly fears the first applicant as a sibling of the second applicant will suffer similar treatment on an ongoing basis.

   ·None of her children (4) can speak Arabic. None of her children have received any instruction in reading and writing Arabic. The family in Australia use English as the main form of communication. Since the two applicants were placed in childcare and now in primary school they have only been exposed to the English language.

   ·The two applicants are dependent upon each other in Australia for friendship and protection from those who might bully the second applicant.

   ·Treating experts have advised her the second applicant’s growth and development will improve over time but his autism and ADHD are severe and will need ongoing attention and support from trained professionals. .She has reviewed the available literature and gone online to learn about the economic situation in Lebanon as well as the availability of relevant professional services that the second applicant will need if the family returns to Lebanon.

   ·She explained to the Tribunal there was limited work in her town, unemployment was high, people were leaving the town at every opportunity, medical services were virtually non-existent and the types of services needed by the second applicant were simply not available in her town.

   ·She provided reasons as to why she and her family would be unable to live separate from her father. She had no option but to live with 2 other families in the same building giving a total family community of 17 persons in the one residence owned and controlled by her father.

   ·She has a family community of almost 400 people in Australia and knows from remarks made to her that her own analysis of the economic situation in Lebanon and availability of medical services is shared by most in that community in Melbourne.

   [19] Full details can be found in the written submissions.

2. The applicant’s husband gave evidence to the Tribunal as follows:

   ·He confirmed the family situation in both Lebanon and  Australia. He advised the couple had married in Lebanon with the approval of both sides of their respective families. It was only after the grandmother of the two applicants visited Australia after the birth of his oldest child that the situation in Australia started to become a matter of concern.

   ·As might be expected the grandmother provided a damning report to her husband in Lebanon as to the way the parents of the two applicants were raising their family in Australia. The husband’s evidence was unremarkable in all respects except for the degree of offence taken by the visiting grandmother and consequential activities involving threats of violence[20] from her husband in Lebanon.

   ·He is fearful of losing his family if he should return to Lebanon. He advised he had discussed this likelihood with his own father and his own father said he would not be able to intervene and provide protection because his father-in-law in Lebanon was effectively in control of these matters.

   ·The parents of the two applicants are first cousins. They grew up in towns and villages within 10 minutes of each other. The father of the two applicants acknowledged his father-in-law was the effective law in the main town of [Town 1] (population 50,000) about 10 minutes from the village of [Village 1] (population 10,000).

   ·In very recent times his father-in-law has rung him from Lebanon and demanded that he return his children to Lebanon so they can receive proper instruction and be taught properly unlike the case in Australia.

   ·He confirmed he was fearful for the future of his children in Lebanon as he would be unable to find work, he would be forced to live apart from his own family and the needs of the second applicant could not be addressed because they were not available as they are in Australia. He said he was constantly impressed with the level of services the second applicant received by way of assistance at his primary school.

   [20] The Tribunal notes a full account of these threats and practices is outlined in the various submissions provided to the Tribunal in case numbers 1301220, 1701714 and 2005785 which are all related cases.

3. At the end of the hearing the solicitor for the applicant addressed the Tribunal on economic conditions in Lebanon, the unavailability of necessary specialist medical services, the prohibitive cost of such services, the oppressive state sanctioned regime  and laws in Lebanon that forced women to accept a second rate position in the wider community and inability to relocate within Lebanon because work is not readily available in other parts of Lebanon.

4. The Tribunal has given consideration to all of the above.

5. The Tribunal finds the applicants fear of harm is based upon membership of a Particular Social Group (PSG), namely being children suffering with mental health issues including autism, ADHD and anxiety and will face serious harm should they be required to return to Lebanon.

6. This serious harm arises because of their poor mental health and consequent fear of being bullied and physically ill-treated when people in their family and village become aware of the state of their mental health. The Tribunal accepts that in these circumstances there is a strong likelihood of employment based discrimination in the future that will affect their ability to financially subsist.

7. As persecution involves the infliction of harm and this implies an element of an attitude on the part of those who persecute which leads to the infliction of harm. In short people are persecuted for something perceived about them or attributed by their persecutors. In this case it is the poor state of their mental health. In this case it is the view in Lebanon that children who suffer from autism is akin to being crazy.

8. This persecution would amount to systematic and discriminatory conduct. This is because the harm that would be inflicted on the applicants, should they return to Lebanon, would be deliberate, intended and motivated[21]. Such infliction of harm would be on the basis of their membership of the particular social group as outlined above.

   [21] SZTEQ v MIBP (2015) 321 ALR 44 [72]; Ram v MIEA (1995) 57 FCR 565, 568.

9. The applicants have a well-founded fear of being persecuted. Such fear is subjective in light of the harm experienced by their family as a result of disobeying their grandfather. Their fear of persecution is also objective, in light of the above country information.

10. The High Court has held that the test for the availability of state protection is that the state is obliged to take reasonable measures to protect the lives and safety of its citizens, and those measures would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and judicial system.[22]

    [22] Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 [26]

11. There are few, if any, effective protection measures available to the applicants should they be required to return to Lebanon. According to DFAT’s country information report[23] on Lebanon, “the ability of the Lebanese authorities to provide effective protection depends on the area concerned. Several areas in Lebanon are not under effective state control, owing to the broader security situation. These include areas of effective Hizballah control and Palestinian camps, from which Lebanese authorities are largely absent. Agents of the state, are known to torture and inflict cruel and inhumane punishment.[24]”

    [23] DFAT, Country Information Report: Lebanon’ (2019) 36   us/publications/Documents/country-information-report-lebanon.pdf>

    [24] US Department of State, ‘Country Reports on Human Rights Practices for 2018’ <

    >

    The Tribunal accepts in light of the subject matter, being a family dispute of a private nature and the current economic crisis and civil unrest in Lebanon, effective state protection is virtually non-existent and will not be available in Lebanon.

12. The Tribunal accepts that medical services of the particular type required by the second applicant are at best only available on a limited basis in Lebanon. More likely the individual tailored attention required on an ongoing basis is likely to be cost-prohibitive. More importantly because of the ongoing economic recession in Lebanon it is highly unlikely the father of the two applicants will be able to get work in a country that barely functions. Hence the possibility of sufficient income coming into the family unit is highly problematic.

13. The Applicants cannot safely relocate to another area of Lebanon. The Applicants fear that given their grandfather was able to harm their family in Australia, regardless of where they relocate to in Lebanon, he will be able to find them, due to his connections and status as a Sheikh. The Tribunal accepts given Lebanon’s economic crisis, their family will not be able to afford accommodation and will experience difficulty obtaining employment to ensure their financial subsistence. In light of this information, the Tribunal accepts the applicants cannot relocate to another area of Lebanon.

    Concluding paragraphs

14. Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information and numerous current and topical government and NGO reports, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicants would be subjected to serious harm for reasons of membership of a Particular Social Group (PSG), namely being children suffering with mental health. The Tribunal is satisfied the applicants would be subjected to serious harm for these reasons that meet the provisions of s 5J(1)(a) of the Act if they are removed to Lebanon now or in the reasonably foreseeable future. Accordingly, the applicants satisfies the criterion in s 36(2)(a) of the Act.

15. Consequently, the Tribunal is satisfied the applicants have a well-founded fear of persecution for a reason specified in s 5J(1) of the Act  and that the applicants meet the definition of refugee as set out is s 5H of the Act.

16. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

    Mark Bishop

    Senior Member

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

(Gleeson CJ, Hayne and Heydon JJ).