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

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

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: 2105421 (Refugee) [2023] AATA 2655
Case: [2023] AATA 2655
Decision Date: 18 May 2023

CaseChat Overview and Summary

The Federal Circuit Court considered the protection visa applications of two children born in Australia, who claimed they would suffer serious harm if returned to Lebanon. The Minister's Delegate had previously refused their application, finding they did not meet the criteria for protection under subsections 36(2)(a) and (aa) of the Migration Act 1958. The matter was remitted to the Tribunal by the Federal Circuit Court in April 2021.

The core legal issues before the court were whether the applicants would face persecution or significant harm as members of a particular social group, specifically "children with mental health disorders in Lebanon." This included assessing the second applicant's Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD), and the general anxiety experienced by both applicants. The court also had to consider the availability of state protection in Lebanon, the capacity of the applicants' parents to subsist there given the ongoing economic crisis, and the potential for degrading or humiliating treatment due to their mental health conditions.

The court's reasoning focused on the severe economic and social crisis in Lebanon, as evidenced by reports from the International Monetary Fund and other bodies. It considered the applicants' submissions regarding the inadequacy of mental health services in Lebanon, the lack of multidisciplinary teams, and the general deterioration of the healthcare system due to the economic collapse. The court also noted the applicants' fear of persecution by their grandfather and the Lebanese community, and the state's limited capacity to provide protection. The court acknowledged that if the applicants did not meet the refugee criterion under s 36(2)(a), it would then consider the complementary protection criterion under s 36(2)(aa), assessing the real risk of significant harm upon removal.

The decision under review was remitted to the Tribunal for further consideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 11050699Grounds 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 11050699Country 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 effortsoby 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 haveoled 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 11050699Gender 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

Evidence

Evidence Before The Court

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 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 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 11050699Grounds 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 11050699Country 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 effortsoby 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 haveoled 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 11050699Gender 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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence 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 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 11050699Grounds 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 11050699Country 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 effortsoby 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 haveoled 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 11050699Gender 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