2109636 (Refugee) - [2025] ARTA 1546

2109636 (Refugee) [2025] ARTA 1546 (1 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2109636
Tribunal:General Member C Graydon
Date: 1 June 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 01 June 2025 at 9:38am
CATCHWORDS
REFUGEE – protection visa – Lebanon – religion – Sunni Muslim – renounced Islamic faith – father will not accept liberal lifestyle – fears family violence and arranged marriage – fears Sharia Court – does not have a well-founded fear – volatile security situation – village location less at risk of conflict –protracted economic crisis – have their own land – well-established employment record – able to subsist – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), Explanatory Memorandum
Migration Regulations 1994 (Cth), Schedule 2
CASES
2010120 (Refugee) [2025] ARTA 550
Chan Yee Kin v MIEA (1989) 169 CLR 279
Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
SZBEL v MIMIA (2006) 228 CLR 152
SZTAL v Minister for Immigration and Border Protection
SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Lebanon, applied for the visa on 7 June 2019.
The applicant sought review of the delegate’s decision to refuse to grant him a protection visa with the then Administrative Appeals Tribunal (AAT) on 29 July 2021. The applicant was represented throughout the review by Mr Sam Issa, Principal Lawyer at Firmstone and Associates, as he was for much of the Department stage of his case.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 4 February 2025…

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.

Continue reading 2109636 (Refugee)

Details

AGLC: 2109636 (Refugee) [2025] ARTA 1546
Case: [2025] ARTA 1546
Decision Date: 1 June 2025

CaseChat Overview and Summary

The Tribunal was required to determine whether the applicant, a Lebanese Sunni Muslim who renounced his faith, met the criteria for a protection visa under Australian law. The Tribunal found sufficient information to determine the applicant's claims without a hearing, noting the applicant's assertions that he would face persecution if returned to Lebanon due to his liberal lifestyle and abandonment of Islam. The applicant's father and uncle had cut off support and threatened him with harm if he did not return to Lebanon and conform to their expectations. The Tribunal needed to assess whether these claims substantiated a well-founded fear of persecution if the applicant were to return to Lebanon.

The Tribunal concluded that the applicant did not have a well-founded fear of persecution on the grounds of his religious beliefs or family obligations. The Tribunal considered the applicant's socioeconomic status, which included owning land and having a stable employment record, indicating he could easily reintegrate into Lebanese society. The Tribunal also noted that the applicant's village, while not immune to conflict, was less volatile compared to other regions in Lebanon. The Tribunal found that the applicant's fears of state persecution were unfounded as there was no evidence to suggest that Sharia courts would not protect his rights or that he would be unable to relocate within Lebanon. The Tribunal determined that the applicant's claims did not meet the statutory criteria for a protection visa.

The Tribunal affirmed the decision of the Department of Home Affairs to refuse the applicant's protection visa application. The Tribunal found no merit in the applicant's claims and upheld the decision based on the available evidence. The applicant's well-founded fear of persecution was deemed unsubstantiated due to the lack of credible evidence supporting his claims of family violence and state persecution if he were to return to Lebanon.

Orders

Orders of the court

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Background

Background to the litigation

In this case it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of a hearing. The Tribunal has before it a copy of the Department’s file. This includes a copy of the applicant’s identity documents and his protection visa application form, which contains his biographical information and a Statutory Declaration by the applicant dated 30 May 2019 setting out his protection claims. Contained in the Department’s file is also an audio recording of the applicant’s interview with a delegate of the Department of Home Affairs on 29 October 2020 and the Department’s decision, which also sets out some of this information. Based on this information the Tribunal is able to determine the applicant’s identity and receiving country. It is also able to form conclusions about whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Act without seeking further evidence or submissions from the applicant, noting that the applicant has previously informed the Tribunal several times that he has no further documents or other information to submit to the Tribunal in support of his case.[2] In a recent decision made by the President and two Deputy Presidents of the ART, a distinction was confirmed between the Tribunal finding there is sufficient information to adequately determine the issues, yet still able to determine that there is insufficient evidence to substantiate the applicant’s protection claims.[3] That is the case in the current review. The Tribunal finds there is sufficient information to adequately determine the issues in this case in the absence of the parties in accordance with s 106(3)(c), while also determining that the applicant’s protection claims are not substantiated. [2] Letters sent to the applicant on 2 August 2021, 4 February 2025, 18 February 2025, requested the applicant to provide any additional evidence relevant to their application as soon as possible however no additional information was provided in response to any of these requests. [3] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) [60].BACKGROUND According to information contained in the protection visa application form the applicant is [age] years of age. He is from [Village 1], Akkar Governorate, Lebanon. He came to Australia in October 2017 on a student visa. He is a Sunni Muslim. His parents [and siblings] continue to live in [Village 1]. Evidence before the DepartmentProtection visa applicationIn his protection visa application form and accompanying Statutory Declaration of 30 May 2019, the applicant made the following claims. ·His family are strict Sunni Muslims, although he does not have a strong faith himself. His father allowed him to study in Australia on condition that he live with his uncle, he left Lebanon to study in Australia and that he stayed with his uncle, who is also a strict Sunni Muslim. ·His uncle imposed on him expectations and restrictions that he did not agree with, such as demanding that he regularly attend the mosque and restricting his social life. ·He moved out of his uncle’s home and his father cut off his financial support to him and demanded that he immediately return to live in his uncle’s house. He further threatened that he would seriously harm him on his return to Lebanon. ·The applicant did not return to his uncle’s house. He enjoyed his personal freedom to do things prohibited in Islam such as going out and socialising, drinking alcohol, maintain relations with women and attending the mosque. He informed his uncle that he had stopped practising his Islamic faith and this increased the hostility between him and his father. ·If he is forced to return to Lebanon he fears he will be forced to publicly pronounce his faith pretend to be religious by attending the mosque and abstaining from drinking, socialising and having relations with women. He fears his parents will pressure him into an arranged marriage. He fears he could not exercise his freedoms and chosen lifestyle without serious or significant harm being imposed on him by his parents and close relatives. He fears that his liberal lifestyle would be unacceptable to his father who may harm or kill him, as may fundamentalist Muslims who do not accept his lifestyle. ·He would not receive effective state protection from these risks because religious or family disputes are dealt with by Sunni Sharia Courts, who would not protect his freedoms. ·He is unable to relocate elsewhere in Lebanon as he fears his father or close relatives will track him down and harm him and radical Islamists live throughout the country, and the lack of state protection applies to the whole of Lebanon. The applicant also provided as part of his application a certified copy of his full Lebanese passport valid for a five-year period from [2017] to [2022]. Interview with the delegate

Evidence

Evidence Before The Court

According to information contained in the protection visa application form the applicant is [age] years of age. He is from [Village 1], Akkar Governorate, Lebanon. He came to Australia in October 2017 on a student visa. He is a Sunni Muslim. His parents [and siblings] continue to live in [Village 1]. Evidence before the DepartmentProtection visa applicationIn his protection visa application form and accompanying Statutory Declaration of 30 May 2019, the applicant made the following claims. ·His family are strict Sunni Muslims, although he does not have a strong faith himself. His father allowed him to study in Australia on condition that he live with his uncle, he left Lebanon to study in Australia and that he stayed with his uncle, who is also a strict Sunni Muslim. ·His uncle imposed on him expectations and restrictions that he did not agree with, such as demanding that he regularly attend the mosque and restricting his social life. ·He moved out of his uncle’s home and his father cut off his financial support to him and demanded that he immediately return to live in his uncle’s house. He further threatened that he would seriously harm him on his return to Lebanon. ·The applicant did not return to his uncle’s house. He enjoyed his personal freedom to do things prohibited in Islam such as going out and socialising, drinking alcohol, maintain relations with women and attending the mosque. He informed his uncle that he had stopped practising his Islamic faith and this increased the hostility between him and his father. ·If he is forced to return to Lebanon he fears he will be forced to publicly pronounce his faith pretend to be religious by attending the mosque and abstaining from drinking, socialising and having relations with women. He fears his parents will pressure him into an arranged marriage. He fears he could not exercise his freedoms and chosen lifestyle without serious or significant harm being imposed on him by his parents and close relatives. He fears that his liberal lifestyle would be unacceptable to his father who may harm or kill him, as may fundamentalist Muslims who do not accept his lifestyle. ·He would not receive effective state protection from these risks because religious or family disputes are dealt with by Sunni Sharia Courts, who would not protect his freedoms. ·He is unable to relocate elsewhere in Lebanon as he fears his father or close relatives will track him down and harm him and radical Islamists live throughout the country, and the lack of state protection applies to the whole of Lebanon. The applicant also provided as part of his application a certified copy of his full Lebanese passport valid for a five-year period from [2017] to [2022]. Interview with the delegate A delegate of the Department interviewed the applicant on 29 October 2020. During the interview the applicant added the following further information to his claims: · He arrived in Australia [in] October 2017 on a student visa to study a [course]. His father sold family land to pay for his expenses. The first period of study went well. · He moved out of his uncle’s house after around 12 months in October 2018 when his uncle placed unreasonable restrictions on him. · His father cut off his financial support from that time and so he did not continue with his studies. He got a job as a [Occupation 1], which is the work he continues to do. He initially moved in with friends, and once he had a secured a full-time job around three years ago, he moved into his own accommodation. · He reiterated that his parents and [siblings] all live in Lebanon and are all strict Muslims, including wearing Islamic dress, observing Ramadan, going to the mosque, maintaining distance from the opposite sex and not drinking alcohol.· His father had a strict and authoritative style of parenting and used to beat him and his siblings for not doing homework. He used to be a soldier in the Lebanese Armed Forces for [a number of] years. He was in the [classification] rank of the army when he retired and he now lives on an army pension. · After he left his uncle’s house, his mother asked him to go back to his uncle and to follow the rules of his father. He has maintained contact with her after the falling out with his father. She kept calling him when his father was not around from his sister’s phone, as she does not have her own phone. He contacts her by texting his sister to call him when she can. He is not in touch with any siblings except for this sister. He has not had further contact with his father or his uncle in Australia since the falling out in October 2018. · He has other relatives living in Australia including two aunties from his father’s side of the family and one uncle from his mother’s side. He only remains in touch with his uncle. · He does not want to return to Lebanon because he will be unable to maintain the lifestyle he has chosen to socialise with his friends including going to parties and clubs, and he will be unable to have relationships with girlfriends or drink alcohol as his family would abuse him and go against him if he did so. · He was asked why he could not still maintain his chosen lifestyle in Lebanon. He said that he could only do so if he moved to the city. The delegate asked him if there were any reasons why he could not move to the city, given he was an adult and had significant employment history as a [Occupation 1] to help him start a new life in Lebanon. He responded that there was no government support available and that he would find it difficult to find a job and support himself without support from his family.· He said he feared he would be in trouble with the Sharia Court for renouncing his religion based on him adopting an un-Islamic lifestyle. The Government would not help him as it was about changing his religion. · He reiterated that he did not want to live according to his faith background and that he no longer has that faith. · The delegate asked him why he had waited so long to lodge a protection visa application, having only applied in June 2019. He responded that his family had stopped supporting him and that he tried many ways to return to university study, including asking for help from his uncle on his mother’s side, but he could not assist him. As he did not want to return to Lebanon and wanted to ‘get on with my life in my own way’ in Australia, he applied for the visa. · The delegate asked him when the last time was he spoke to his father. He said it was after he stopped supporting him but he could not recall the details of the last conversation they had, as he has tried to forget it as he just wanted his father out of his life. He recalled that they had talked about his father sending money to support him but his father had refused and said he must listen to his uncle as he was doing things that brought shame on the family. · The delegate asked him how he knew that his father wanted to physically harm him on his return. He responded that his mother had warned him that his father wants to punish him and hurt him and he fears his father may punch him. His mother also told him that in Lebanon he would need to go back to being a Muslim again in front of the community. He clarified to the delegate that his father had never directly threatened him and they had never talked since the falling out. ‘Because he is a strong man, a hard man, he does not respect me or my freedom or my right to live my life.’ · The delegate asked if there were any other reasons he feared returning to Lebanon. He reiterated that he was worried he would lose his personal freedom and may be subjected to an arranged marriage and that he would be forced to revert to Islam and attend the mosque against his will. He confirmed that he had not converted to any other religion but he did not want to be a practising Muslim anymore. · The delegate asked him if his siblings in Lebanon were already married. He said none were married yet but that in Lebanon the age of marriage is around eighteen or nineteen years old and he is already beyond that and that in Lebanon he would just have to marry whoever his parents wanted him to. · His representative, who was present throughout the interview, added that as the applicant had renounced Islam to his uncle this means that if he returned to Lebanon he would have to publicly pronounce his reversion back to Islam, which he does not want to do.

Decision

Reasons for decision

Nothing further has been heard by the Tribunal from the applicant or his representative since that date, 29 April 2025, to the date of this decision. Circumstances in which the Tribunal may reach a decision without a hearing The circumstances in which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act). They include where an applicant requests the Tribunal to make its decision without holding a hearing of the proceedings: s 106(3) ART Act, which states:(1) The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies...3) This subsection applies if:(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and(b) either:(i) the decision is wholly in favour of the applicant; or(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.Based on ‘a request’ by the applicant In order for the Tribunal to consider exercising its discretion to make a decision without holding a hearing where the decision is not wholly in favour of the applicant, the Tribunal must be satisfied under s 106(3)(b)(ii) that the applicant has made a ‘request’ to be provided with a decision, without a hearing. In this case the applicant had twice earlier indicated to the Tribunal via his legal representative an intention to attend the scheduled hearings. This remained the position of the applicant until five days before the third re-scheduled hearing, when his representative sent an ‘Authority to request a decision’ from the applicant requesting a ‘decision on the passport’. When this was not accepted by the Tribunal as a request for a ‘decision on the papers’, the representative then submitted a completed Tribunal form indicating a request for a decision on the papers but signed by himself and not by the applicant, contrary to the Tribunal’s request. The last-minute change in the applicant’s position reversing his earlier stated intention to attend the hearing, combined with the less-than-ideal paperwork submitted by his representative, have made it more difficult for the Tribunal to be satisfied that the applicant made a clear ‘request’ for a decision on the papers, and where the applicant has a legal representative, that the request has been made in accordance with the applicant’s instructions. The meaning of the requirement that ‘the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding’ in s 106(3)(b)(ii) of the ART Act is clear. However, difficult factual issues may arise in its application in some cases. For example, where an applicant’s representative purports to make a request in accordance with s 106(3)(b)(ii) of the ART Act contrary to the applicant’s instructions, such a request would not be an effective request for the purposes of that section.[1][1] See 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) [34].

Ratio Decidendi

Legal Principle Established

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