2105421 (Refugee)

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.