2409109 (Refugee) - [2024] AATA 3301

2409109 (Refugee) [2024] AATA 3301 (20 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr Noah Ali Khorami
CASE NUMBER: 2409109

COUNTRY OF REFERENCE: Lebanon
MEMBER:Sophie Manera
DATE:20 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 August 2024 at 12:16pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – particular social group – mixed religious marriage – Sunni marriage to Shia – opposition to Hezbollah and Shia groups – disinheritance by family – criminal convictions in Australia – convictions against a Shia woman – family connections to Hezbollah – fear of killing – access to mental health treatment – delay in applying for protection or raising protection claims – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 57, 65, 424, 499, 501
Migration Regulations 1994, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 669
GLD18 v MH [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Pearson v Minister for Home Affairs [2022] FCAFC 203
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND
Immigration history

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old male. He is a Lebanese citizen. His religion is Sunni Muslim.
The applicant arrived in Australia [in] March 2015 as the holder of a [student] visa.
The applicant married his wife [in] October 2016. On 19 October 2016 the applicant applied for a Subclass 820/801 combined partner visa. On 22 August 2018 the applicant was granted a temporary partner visa (Subclass 820). On 24 October 2018 the applicant was granted a permanent partner visa (Subclass 801).
The applicant has [number] biological children with his wife. He also has a stepdaughter from his wife’s first marriage.
[In] November 2018 the applicant was convicted of assault occasioning actual bodily harm, [number] counts of common assault, and of contravening prohibition/restriction in AVO. The applicant was sentenced, on appeal, to an aggregate [term] imprisonment.
On 27 March 2019 the applicant’s Subclass 801 permanent partner visa was cancelled mandatorily under s 501(3A) of the Act. The applicant applied for revocation of the s 501 visa cancellation. On 29 July 2020 a delegate of the Minister for Home Affairs made a decision not to revoke the s 501 visa cancellation.
On 4 August 2020 the applicant applied for review of the decision not to revoke the s 501 visa cancellation to the General Division of the Administrative Appeals Tribunal (General Division). The General Division affirmed the decision not to revoke the s 501 visa cancellation.
The applicant appealed the General Division decision to the Federal Court of Australia (Federal Court). [In] September 2021 the Federal Court dismissed his application.
The applicant appealed the Federal Court decision to the Full Federal Court of Australia (Full Federal Court). [In] May 2022 the Full Federal Court dismissed his appeal.
[In] December 2022 the applicant was released from immigration detention as a result of the Full Federal Court decision in Pearson v Minister for Home Affairs[1].
[1] Pearson v Minister for Home Affairs [2022] FCAFC 203.
[In] May 2023 the applicant was returned to immigration detention after passage of the Migration Amendment (Aggregate Sentences) Act 2023.
On 31 October 2023 the applicant lodged an invalid application for a protection visa. On 3 November 2023 the applicant was notified of the invalidity of his application.
The current protection visa application
On 6 February 2024 the applicant lodged a new application for a protection visa, which is the subject of this review. The applicant was assisted in this application by his legal representative, Noah Khorami. The applicant provided the following documents to the Department with his protection visa application:
·statement by the applicant dated 4 February 2024 (First Statement);
·copy of his marriage certificate;
·documents relating to his criminal convictions in Australia;
·evidence of his business in Australia;
·country update on Lebanon from the Department of Foreign Affairs and Trade (DFAT) Smart Traveller website;
·DFAT country information report for Lebanon dated 26 June 2023.
A summary of the claims made in the applicant’s First Statement is as follows:
·he fears harm from his family in Lebanon due to his marriage to a woman from the Shia sect. His extended family hold hard-line Sunni Muslim beliefs;
·he fears harm from his wife’s family and associated Shia extremist factions. The applicant has been labelled an aggressor due to his criminal convictions;
·he is opposed to Hezbollah and other extremist Shia groups. He fears reprisals for his outspoken resistance to these groups;
·he fears repercussions arising from the disclosure of his criminal background, particularly as he has been convicted of offences against Shia individuals;
·he is in a vulnerable position due to the sectarian divide between Sunni and Shia. He may attract societal discrimination and ostracism due to his inter-sect marriage;
·his wife and children would be at risk of harm in Lebanon, as their lack of affiliation with either Sunni or Shia communities places them directly in the midst of communal hostilities;
·the amalgamation of religious persecution, familial discord, political position and mental health challenges presents a hostile environment where the applicant’s basic rights and safety are gravely endangered.
The applicant was not invited to attend an interview with an officer of the Department to discuss his claims for protection. Instead, the applicant was sent a request under section 56 of the Act to provide additional information about his claims for protection.
The applicant’s legal representative provided a submission dated 23 February 2024 to the Department in response to the s 56 request. The submission:
·reiterated the applicant’s claims and stated that the applicant had been a vocal critic of Hezbollah;
·stated that the applicant’s uncle discovered that the applicant’s wife was a Shia Muslim after her return to Australia, and as a result the applicant was disowned and deprived of any entitlement to inheritance. The applicant’s cousins vowed violence should the applicant ever return to Lebanon or pursue enquiries regarding his inheritance;
·attached an extract from the Lebanese General Directorate of General Security website stating that individuals are required to disclose their criminal record when applying for a passport and/or to be deported to Lebanon;
·attached a second written statement by the applicant (Second Statement) dated 23 February 2024, providing further details regarding the circumstances of how his extended family discovered his wife’s religion, and providing further detail of the threats he fears from his wife’s extended relatives;
·attached a statement by the applicant’s wife dated 22 February 2024;
·attached evidence of the applicant’s and his wife’s religions.
On 28 February 2024 the applicant was invited under s 57 of the Act to comment on information which did not support his protection visa application. The applicant was asked to comment on why his request for revocation of the s 501 visa cancellation decision did not mention any fears of harm from his relatives, in-laws or Hezbollah, even though the form specifically asked whether the applicant had any concerns about returning to Lebanon.
The applicant’s legal representative provided a further submission dated 29 February 2024 in response to the s 57 request. The applicant also provided a written statement dated 29 February 2024 (Third Statement). In the representative’s written submission, the representative said that the applicant’s focus in his revocation request was presenting his family ties in Australia as a reason for reinstatement of his partner visa. Furthermore, he was suffering from anxiety and stress, which impacted his ability to explicitly raise fears of harm in Lebanon. In the applicant’s Third Statement, he stated that he was advised against discussing his safety concerns in Lebanon by his legal counsel at the time; he was advised to focus on his ties to Australia and the impact the cancellation of his visa would have on his wife and children. The applicant stated that he was consumed by the prospect of being forcibly separated from his wife and children and so his personal safety concerns in Lebanon became secondary.
On 17 April 2024 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa. The delegate refused to grant the visa on the basis that they were not satisfied the applicant had received threats from his uncle, cousins, his wife’s cousin or from anybody else in Lebanon. The delegate was also not satisfied that the applicant’s extended family members hold hard-line Sunni beliefs, or that his wife’s extended family are associated with Hezbollah as claimed, or that they oppose the applicant’s marriage between a Sunni Muslim and a Shia Muslim. The delegate was not satisfied that the applicant was a person entitled to protection in Australia.
The application for review
The applicant applied for review to the Tribunal on 23 April 2024. The applicant was represented in relation to the review by his solicitor, Noah Khorami, and his barrister, [named].
The applicant’s solicitor provided the Tribunal with a letter dated 13 June 2024. Attached to the letter were 22 annexures marked A–V. The annexures are as follows:
·Annexure A – Pre-hearing written submissions by the applicant’s barrister dated 10 June 2024
·Annexure B – Written Submissions – Source 1
·Annexure C – Written Submissions – Source 2
·Annexure D – Written Submissions – Source 3
·Annexure E – Written Submissions – Source 5
·Annexure F – Written Submissions – Source 6
·Annexure G – Written Submissions – Source 7
·Annexure H – [The applicant’s name] – [Health Service 1] Full General Health Summary & Clinical Records Printed 31 May 2024
·Annexure I – [The applicant’s name] – [Counsellor A], [Agency 1] Counsellor Summary of Treatment dated 9 May 2024
·Annexure J – [The applicant’s name] – [Counsellor A], [Agency 1] Counsellor Summary of Treatment dated 9 May 2024 – 1
·Annexure K – [The applicant’s name] – [Counsellor A], [Agency 1] Counsellor, Incident Report & Summary of Treatment Report dated 9 April 2024
·Annexure L – [The applicant’s name] – [Doctor A], Counsellor, Summary of Treatment dated 8 November 2023
·Annexure M – [The applicant’s name] – [Doctor B], Counsellor, Summary of Treatment dated 29 August 2023
·Annexure N – [The applicant’s name] – [Doctor B], Counsellor Summary of Treatment dated 27 July 2023
·Annexure O – [The applicant’s name] – [Psychologist A], Psychologist, Psychological Assessment Report dated 19 June 2023
·Annexure P – [The applicant’s name] – 30 Month [Health Service 1] Health Summary Report To Commonwealth Ombudsman 2022 dated [date]
·Annexure Q – [The applicant’s name] – 24 Month [Health Service 1] Health Summary Report To Commonwealth Ombudsman 2021 dated [date]
·Annexure R – [The applicant’s name] – Mental Health Referral Letter from [Agency 2] dated 3 November 2020
·Annexure S – Applicant’s Wife ([Wife A]) Psychological Treatment Review By [Psychologist B], Psychologist, dated 10 April 2024
·Annexure T – Applicant’s Wife ([Wife A]) Lumbar Spine Disc Condition CT Scan Result dated [in] August 2023
·Annexure U – Applicant’s Children ([named]) asthma condition confirmation – [Doctor C] dated 7 December 2023
·Annexure V – Applicant’s stepdaughter ([named]) [medical] condition diagnoses by [Doctor D] dated 26 April 2023
The barrister’s submission dated 10 June 2024 addressed the issues raised in the delegate’s decision record, advising that it is not possible to obtain documentary evidence to support many of the applicant’s claims as the applicant has limited access to technology whilst in immigration detention and the applicant had only expressed his criticism of Shia extremist groups orally rather than in writing. The submission also stated that ‘factors such as trauma, fear, cultural differences, interview context, evolving understanding of the process, and the complexity of human memory should be taken into account when assessing the credibility of the applicant’s claims’.
On 19 June 2024 the Tribunal invited the applicant in writing under s 424A of the Act to comment on information that would be the reason, or part of the reason, for affirming the decision under review. In the s 424A invitation, the Tribunal invited the applicant to comment on the fact that he had failed to raise any reasons why Australia has protection obligations in relation to him in his General Division application, despite non-refoulement obligations being an express consideration.
The applicant appeared before the Tribunal on 21 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [Wife A]. The applicant’s solicitor and barrister attended the hearing. The applicant’s barrister provided oral submissions at the hearing. During the hearing the Tribunal put the same concern raised in the s 424A invitation to the applicant under s 424AA.
On 25 June 2024 the applicant’s representatives provided post-hearing submissions to the Tribunal, addressing issues discussed at the hearing as well as providing a response to the s 424A and s 424AA invitation.
The post-hearing submissions also attached a screenshot of the [social media] profile of the applicant’s cousin, [Cousin A]. The [social media] profile picture depicted [Cousin A] standing outside, smiling and holding a rifle.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s oral evidence
During the hearing the applicant stated that he was born and grew up in [Town 1], North Lebanon. His grandparents lived in the same building as his parents, and the applicant often stayed with his grandparents to help them out. He lived at home whilst completing a [Qualification 1] in Tripoli. He commuted to Tripoli each day to attend classes. He lived in the family home until migrating to Australia. He has never travelled back to Lebanon since his arrival in Australia in March 2015.
In Australia he has worked in the [Industry 1] and [in a business 1]. He has owned his own [business 1].
He claims that he is a Sunni Muslim, as are his parents and extended family. He has [number of siblings] who reside in [Country 1]. He has [number of siblings] in Lebanon. He is married His biological children are aged [respective ages] years old, and his stepdaughter is [age] years old.
The applicant gave evidence that his parents continue to live in [Town 1]. He is in contact with his mother every one to 2 months. He speaks with his dad approximately every 5 months.
The applicant said that he had owned a house in Lebanon, built on land allocated to his family by the government. There are no title deeds or other proof of ownership. He had started building the house prior to travelling to Australia. One of his uncles ([Uncle A]) finished building the house after the applicant had left Lebanon and currently lives in it.
The applicant said that he suffers from a number of health problems. He has a back problem caused by his bed at the detention centre. He suffers from anxiety, stress, depression, PTSD and [a named] syndrome.
The Tribunal asked the applicant to discuss his immigration history, visa cancellation, revocation request and appeal to the General Division. He said that he spent [period] in jail and his visa was cancelled while he was in jail. He was then taken straight from jail to an immigration detention centre while awaiting an outcome on his revocation request. He was transferred between various immigration detention centres, including at [specified centres]. He was unsuccessful in his revocation request and his application for review to the General Division. He said that he had learned from his mistakes and wanted to fight his case to reunite with his wife and children. He sold his [work equipment] to pay his legal costs. He appealed to the Federal Court and Full Federal Court. He said that he was released from immigration detention in 2022. Upon release from detention, he started up his business again and moved into a new house with his wife and children. Approximately 4 months later he was re-detained.

He said that he initially did not take his visa cancellation that seriously, as he knew he could challenge the visa cancellation decision in the General Division. He said he knew that he had become a better person, and he believed he would win in the General Division.
When asked about his political views, the applicant said that he was raised by his family to believe that Shia Muslims are the enemy. When he started university, he realised it was possible to get along with people of different faiths. His attitude towards religion changed and he formed friendships with Shia Muslims.
The applicant said that he had never expressed his political opinions in public, neither prior to nor after commencing university. When asked about occasions where he expressed his opinions in private, the applicant said that he argued with his family after marrying a Shia woman. The applicant did not give any examples of criticising Hezbollah or other extremist Shia Muslim groups.
When asked why he applied for a protection visa, the applicant responded that he cannot go back to Lebanon. He said that he feared for his life from his uncle and cousins because of his marriage to a Shia Muslim. The applicant said that when he married his wife, no one in his family knew of her religion. He then spoke with his parents over the phone and told them that his wife was a Shia Muslim. At first, his parents did not accept the relationship. However, they reconciled after his wife gave birth to their first child. His wife decided to go to Lebanon to show their [child] to the applicant’s grandfather. She travelled in approximately mid-2018 and spent one month in Lebanon. She stayed with the applicant’s parents and they treated her well. The applicant said that his extended family, including his uncles and cousins, found out about his wife’s religion while she was in Lebanon. The applicant said that his wife telephoned him while she was in Lebanon, reporting that his uncles and cousins had given her funny looks after they found out. They did not visit the house or speak with her after they found out.
The applicant claims that shortly after his wife returned from Lebanon, he had arguments on the phone with his father’s [brother] ([Uncle B]) and cousins. They said they would never accept his marriage to a Shia Muslim. They wanted her to convert to Sunni Islam. The applicant said he would never ask his wife to convert. The applicant was rude to his [Uncle B], which angered his cousins. He said that they threatened to shoot him if they ever saw him.
The Tribunal asked the applicant why his wife decided to go to Lebanon in 2018. The applicant said that they did not think there would be any issues, as the applicant had reconciled with his parents before his wife travelled to Lebanon.
His wife travelled to Lebanon for 1 month. Whilst in Lebanon, she did not have any contact with her Lebanese relatives. Her family was unaware of her trip to Lebanon.
When asked why he feared returning to Lebanon, the applicant said that he feared he would get hurt. He said that his [Uncle B] once shot the applicant’s father many years ago for dating a Christian girl.
The applicant said he could not imagine life in Lebanon. He said that he suffered violence from his family as a child and is traumatised as a result. His father, grandfather, and other male relatives used to beat him and his brothers or burn them with metal skewers. On one occasion as a child, the applicant was locked in the garage for 3 days in the freezing cold.
The applicant also said that he experienced war in Lebanon. In 2006 his family fled to Syria to escape the Lebanon-Israel war. He is traumatised from seeing and hearing missiles.
The applicant said that he could not imagine leaving his children, nor could he imagine his children living in Lebanon.
When asked from whom he specifically feared harm, the applicant responded his [Uncle B] and his cousin [Cousin A], who is one of the sons of the [Uncle B]. The applicant said [Cousin A] has been in and out of jail for shooting people. He last received news of [Cousin A] in 2019, when he came out of jail. The applicant said that [Uncle B] has [number] children, who are all troublemakers.
The applicant said that every time he speaks to his father, his father tells him not to return to Lebanon as he should not leave his family.
The applicant said he also feared harm from his wife’s cousin, [Cousin B], and who he claims has connections in government and Hezbollah. The Tribunal asked the applicant to discuss any threats he had received in as much detail as possible. The applicant said that soon after he and his wife married, his wife received a call from her cousin [Cousin B] in Lebanon. The applicant said his wife was told she had defied her culture, and she was told that if [Cousin B] ever saw the applicant, he would kill him. The applicant said his wife received many similar calls in early 2017. The applicant’s wife stopped contacting her Lebanese family and blocked them.
When asked about experiences of past harm in Lebanon, the applicant said he regularly experienced violence from his father and other male relatives. This continued throughout his childhood and up until he started attending university, when he would spend as much time as possible outside of his home, at university, working, or at friends’ houses. The applicant said he has forgiven his father for this childhood harm.
When asked where he would go if obliged to return to Lebanon, the applicant said that he would have nowhere else to go but his parents’ house in [Town 1].
The Tribunal asked the applicant if he and his wife had planned what they would do if he was obliged to return to Lebanon. The applicant said that he and his wife had not discussed this, however, he believes his wife and children would have to have to follow him to Lebanon.
The applicant’s wife’s oral evidence
The applicant’s wife said that members of her family were Shia extremists, and they would know as soon as she and her husband had arrived back in Lebanon. She said her family had a friend of a friend who worked in the airport.
She said that when she travelled to Lebanon in about mid July 2018, she did not see her Lebanese family members and they were not aware she had travelled to Lebanon.
In Lebanon, she stayed with the applicant’s parents. They assured her she would be safe in North Lebanon. Whilst there, the applicant’s extended relatives came to visit. They asked about her background and discovered that she is a Shia Muslim. Upon their discovery, the atmosphere became tense. The applicant’s wife made an excuse to leave the room. She saw the applicant’s grandparents after this incident as they lived in the same building as the applicant’s parents. She did not see the applicant’s [Uncle B] or cousins again.
In relation to the threats from her family, the applicant’s wife said that shortly after her marriage she received a couple of phone calls from her cousins in Lebanon. They were angry with her and they made threats against the applicant.
The applicant’s wife said that she and the children could not live without the applicant and they would elect to go back to Lebanon with him. However, she said it would be risky for the whole family. Her mental health has deteriorated. She suffers from back pain. It would be difficult to survive in a war-torn country and they would not be able to afford help.
Analysis, findings and reasons
Delay
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to applicants who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Furthermore, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant is not made out.[3] The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[2] MIMA v Rajalingam (1999) 93 FCR 220.
[3] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
The Tribunal has concerns about the credibility of the applicant’s claims due to the significant delay in the applicant applying for protection, raising fears of harm, or raising non-refoulement obligations in earlier proceedings before the Department or General Division. The applicant’s permanent visa was cancelled in March 2019. His attempts to seek merits review ended in August 2020, when the General Division affirmed the decision not to revoke the s 501 visa cancellation. His attempts to seek judicial review ended in May 2022, when the Full Federal Court dismissed his appeal. The applicant did not apply for protection until 31 October 2023, approximately 17 months later, and did not make a valid protection visa application until 6 February 2024.
The Tribunal acknowledges that the applicant was released from immigration detention in December 2022. However, he was returned to immigration detention in approximately March 2023. There is a delay of approximately 7 months, between March 2023 and October 2023, in which the applicant did not apply for protection.
The Tribunal put to the applicant that it appeared he had applied for protection as a last resort, because he had exhausted all other avenues for remaining in Australia. The applicant confirmed this was correct in that this was his last chance, but he nevertheless feared returning to Lebanon. He said that now his situation is very bad and he must talk about it. He said that he had mentioned to his previous lawyers that he feared returning to Lebanon, but his lawyers told him not to mention this in his revocation request. He said he was told that the focus of the revocation process was his character. Furthermore, he was told he would incur further legal costs in raising protection claims or non-refoulement obligations. He also said he was under a lot of mental pressure at the time. The applicant’s barrister submitted at the hearing that it made sense for the applicant to focus on the revocation process, instead of applying for protection.
The Tribunal put to the applicant that it seemed he had done all he could to fight the visa cancellation decision. He had engaged lawyers and a private psychologist. The Tribunal put to the applicant that he must have understood during his General Division application that his right to remain in Australia was at stake. The applicant said his lawyer at that time had told him they had seen more serious criminals get their visa back and so he did not think he would lose his General Division application.
The Tribunal put a specific concern to the applicant pursuant to s 424A prior to the hearing, and put the same concern to the applicant during the hearing pursuant s 424AA. It informed the applicant that his previous representative provided a detailed Statement of Facts, Issues and Contentions to the General Division, in which no non-refoulement obligations were raised. Furthermore, these issues were not raised during his General Division hearing, as evidenced in the General Division decision record, which states ‘the applicant does not make any claims with respect to Australia’s non-refoulment [sic] obligations, and none arise in evidence’.
The applicant has given different explanations for the delay. Essentially, his reasons are threefold: that 2 different lawyers told him not to raise these claims at the revocation stage and General Division stage, that raising protection or non-refoulement claims would incur further costs to him, and that his mental state prevented him from thinking clearly and acting sooner. The Tribunal has considered his explanations. For the following reasons, the Tribunal does not consider the explanations offered by the applicant satisfactory.
In relation to the applicant’s assertion that his lawyers told him not to raise these claims, the Tribunal accepts that his lawyer at the revocation stage told him to focus on the character issue, and his lawyer in the General Division told him that he needed to provide evidence of his claims for protection, to which the applicant informed her he could not do as he did not have documentary evidence.
However, the Tribunal also finds the applicant is a person who took all reasonably possible steps in his endeavour to put forward the best possible case to the General Division. By the time he applied to the General Division, he knew that it may be his last shot at getting his visa back. And yet, he appears to have failed to take any steps to obtain or provide evidence of his fears for harm in Lebanon, such as proof of his and his wife’s religion (which he has since been able to provide to the Department), or written statements by him and his wife explaining the reasons for his fears.
In relation to the issue of cost, on his evidence, the applicant spent a significant amount of money in legal and other professional fees to fight his General Division case. He sold his [work equipment]. Again, it appears he was doing all he could to support his General Division application. The Tribunal finds that had the applicant had genuine fears about returning to Lebanon, it would have been reasonable for him to incur the additional costs in applying for protection or raising non-refoulement obligations.
In relation to the applicant’s claim that his mental health impacted his memory and prevented him from raising this claim sooner, the Tribunal has considered the numerous counselling reports provided by the applicant. The Tribunal notes that while the applicant claims he was under a lot of pressure, he was able to recall incidents of past harm from his father and relatives in Lebanon in detail. He was able to provide details of his experience during the Israel-Lebanon war in 2006, despite the applicant being [age] years old at the time. The Tribunal put to the applicant that despite his claimed memory problems, he was able to provide substantial detail about the trauma he faced as a child in Lebanon, which may indicate he does not appear to have been prevented by his poor memory from raising other instances of trauma. The applicant said that his memory had been affected, and that he had difficulty remembering dates. At the end of the hearing, the applicant’s barrister referred the Tribunal to various pages[4] from the applicant’s clinical records for comments on the impact to the applicant’s memory.
[4] The applicant’s pre-hearing submissions and annexures, provided to the Tribunal on 13 June 2024, at pages 315, 339, 343 and 347.
The Tribunal has considered the applicant’s evidence regarding the impact his memory and mental health have had on his failure to raise his claims for protection sooner. The Tribunal has also considered the barrister’s submission that various factors should be taken into account when assessing the credibility of the applicant’s claims, including but not limited to, the complexity of human memory. The Tribunal accepts that victims and survivors of trauma and serious harm may find it difficult to recount or disclose details of what has happened to them because of the traumatic and sensitive nature of those experiences.[5] However, the Tribunal finds that in the applicant’s case he has not raised any fears of persecution or non-refoulement obligations in any shape or form, not in his revocation request, nor in his application to the General Division. It is not that he has merely omitted names or dates relevant to his claims; there is simply no mention of his protection claims in any migration proceeding until the applicant lodges a protection visa application. The Tribunal finds it implausible that his memory or stress levels would impact him to the extent that it would cause him to entirely forget that he had been the recipient of death threats from people in Lebanon. The applicant’s memory did not prevent him from recounting multiple traumatic incidents experienced in Lebanon. Furthermore, the applicant was undergoing regular treatment for mental health after his General Division application was unsuccessful in 2020.[6] As such, the Tribunal does not accept that the applicant’s memory or mental health have impacted him to such a degree that it would have prevented him from raising his protection claims sooner.
[5] UK Home Office, Assessing credibility and refugee status in asylum claims lodged on or after 28 June 2022, p 46 <
[6] The applicant’s pre-hearing submissions and annexures, provided to the Tribunal on 13 June 2024, at pages 444–467.
The Tribunal has also considered the barrister’s submission that the applicant had an evolving understanding of the protection visa application process, which contributed to his delay in applying for protection. The barrister also submitted that it made sense for the applicant to focus on his revocation request. The Tribunal finds that even if the applicant did not fully appreciate the purpose of a protection visa at the time of his revocation request or General Division application, and he chose to focus on the revocation process instead, this does not explain the applicant’s delay in applying for protection 3.5 years after the General Division affirmed the non-revocation decision, nor the delay of 17 months between the time of his Full Federal Court decision and the lodgement of his first (invalid) protection visa application. It also does not explain why the applicant failed to raise any non-refoulement obligations in his revocation request or General Division application.
The Tribunal cannot reconcile the applicant’s position of being one who faced a significant risk of being removed from Australia, and who seemed to be doing all he could to prevent that, with his decision not to raise any protection claims or non-refoulement obligations at any stage during his revocation or General Division process. The Tribunal finds that the applicant has raised protection claims as an afterthought, after spending approximately 3 years challenging the visa cancellation decision. Were his fears more serious, the Tribunal finds he would have raised them at an earlier opportunity.
The applicant’s failure to take any productive steps to pursue his protection claims or raise non-refoulement obligations, in light of his significant efforts to support his General Division application, raises concerns with the credibility of the applicant’s claims for protection.
The Tribunal also put to the applicant that in the [Agency 1] counselling reports provided by him, there are no mention of fears of persecution arising from his interfaith marriage, despite counselling sessions taking place after he had applied for protection. The applicant said that he told his counsellors why he cannot go back to Lebanon. He also said that the sessions were about how to treat trauma that had happened in the past, rather than thinking about the future.
The Tribunal also finds that it would have been reasonable for the applicant to have mentioned his fears of returning to Lebanon in his [Agency 1] counselling sessions and for this to have been reflected in the counselling reports. The Tribunal has considered the applicant’s response that the sessions were to deal with past trauma suffered, and that in any case he did raise his fears during the sessions. The Tribunal also put to the applicant that in one report,[7] he mentioned his interfaith marriage, with the report stating ‘He described his marriage as peaceful, despite his parents’ disapproval as she was Shia Muslim’. He did not raise any serious concerns arising from his interfaith marriage. The applicant responded that he never thought he would go back to Lebanon. The Tribunal notes that the applicant mentioned feeling ‘uncertain about his future’[8] in a counselling session, but from the context of the counselling notes, this appears to relate to stress arising from his unsuccessful General Division application and ongoing immigration detention, rather than fears of future persecution.
[7] The applicant’s pre-hearing submissions and annexures, provided to the Tribunal on 13 June 2024, at page 500.
[8] The applicant’s pre-hearing submissions and annexures, provided to the Tribunal on 13 June 2024, at page 343.

Even if the applicant did mention his fears, the Tribunal finds it reasonable to expect that they would have been mentioned at least tentatively in the counsellors’ reports. The Tribunal is concerned by the complete absence of any mention of these fears. The Tribunal notes from the [Agency 1] reports provided that the applicant has discussed the trauma arising from his time in detention and the ongoing separation from his wife and children. Considering the applicant claims to have received death threats from his cousin in 2018, and from his wife’s cousin in about 2016, the Tribunal draws the conclusion that the failure of these threats to be included in the counselling reports indicates the applicant was either not traumatised by these events, or they did not occur in the way claimed by the applicant, or they did not occur at all. In any case, they do not appear to have had a significant impact on the applicant. The Tribunal finds this issue adversely impacts the credibility of the applicant’s evidence.
The Tribunal notes the applicant had many opportunities to voice his fears upon returning to Lebanon, and yet he did not do so. The significant delay, and the cumulative impact of the applicant’s failure to raise his protection claims with the Department, General Division, or with his counsellors, adversely impacts the credibility of his claims.
The applicant’s consent to return to Lebanon
The Tribunal put to the applicant that in one of the documents he had provided to the Tribunal, a copy of his clinical records from [Health Service 1] dated 16 January 2021, he stated that he could have signed to return to Lebanon but that he made the decision to fight for his children and needs someone to understand his situation in order to be granted a second chance.[9] The Tribunal put to the applicant that his willingness to return to Lebanon, but for the resulting separation from his children, did not support his claim that he feared for his life in Lebanon. The applicant responded that he could not stand life at [a named] Detention Centre. He said he signed multiple times agreeing to be removed from Australia, and then retracted his signature due to pressure from his wife and parents. The Tribunal accepts that the applicant found living at [this] Detention Centre to be extremely difficult, particularly as he had limited contact with his family at that time and because he was the victim of an assault there. However, the Tribunal notes the applicant did not make mention of retracting his signature due to fears of harm in Lebanon. The Tribunal finds that the applicant chose to retract his signature and remain in immigration detention not because of fears of harm upon return to Lebanon, but because he had not given up hope that he would win at court and eventually be released into the community and reunited with his family. As such, the Tribunal finds the fact that the applicant signed multiple times to return to Lebanon also impacts the credibility of his claims.
What does the Tribunal accept?
[9] The applicant’s pre-hearing submissions and annexures, provided to the Tribunal on 13 June 2024, at page 346.
The Tribunal has considered the claims of the applicant in his original protection visa application, in his responses to requests for further information by the Department, and in his application for review to the Tribunal. The Tribunal has considered the applicant’s claims individually and cumulatively.
While the Tribunal has concerns about aspects of the applicant’s claims, the Tribunal accepts the following:
·the applicant is a Sunni Muslim and his wife is a Shia Muslim. This is evidenced by their oral and written evidence, and documents provided to the Department;
·the applicant’s family were unhappy to hear that he had married a Shia Muslim, and the applicant’s wife’s Lebanese family were unhappy to hear that she had married a Sunni Muslim. This is supported by country information which states that mixed marriages occur in Lebanon between different schools of Islam, though not without tension.[10] This is also consistent with information in the applicant’s counsellors’ reports, where he informed a counsellor, prior to applying for protection, that his parents disapproved of his marriage;
·the applicant’s parents accepted his marriage after his first child was born. This is evidenced by the applicant’s wife’s decision to travel to [Town 1] with her [child] in 2018;
·while in Lebanon, the applicant’s wife’s religion was discovered by the applicant’s extended relatives. The atmosphere became tense and the applicant’s wife left the room. She did not see the applicant’s uncles and cousins again. She did not suffer harm in Lebanon;
·as a child, the applicant faced violence from his father and grandfather. This ceased when he became an adult. This is supported by the applicant’s oral evidence, and the numerous references to this in the applicant’s counsellors’ reports and clinical records;[11]
- the applicant suffers from health problems, caused by his lengthy stay in immigration detention, the assault suffered in detention, ongoing separation from his wife and children, and stress over his legal and immigration issues. The applicant has provided substantial evidence of his physical and mental health condition. Psychiatric reports state that he presents with PTSD, depression and anxiety symptoms;
·the applicant and his wife hope that he can remain in Australia and, as such, they have not formed a plan as to what they would do as a family if the applicant were obliged to return to Lebanon.
[10] ‘DFAT Country Information Report: Lebanon’, Department of Foreign Affairs and Trade, 26 June 2023 at 3.21.
[11] For example, reference to the childhood violence is made in the pre-hearing submissions and annexures at (but not limited to) pages 338, 495, 504.
However, for the reasons detailed below, the Tribunal does not accept:
·the applicant’s cousins made threats to kill him;
·the applicant’s wife’s cousins made threats to kill the applicant;
·the applicant risks repercussions as a vocal critic of Hezbollah;
·the applicant would face societal discrimination and ostracism as a convict;
·the applicant would be denied employment in Lebanon as a convict;
·the applicant’s wife’s family has connections with Hezbollah and Beirut airport staff;
·the applicant has been labelled an aggressor by his wife’s family and Shia extremist groups.
Political opinion and criticism of Hezbollah
In the applicant’s written statements, he claims to fear harm from Hezbollah and extremist Shia Muslim groups. He claims to openly disagree with these groups and to be a vocal critic of Hezbollah.
During the hearing, the Tribunal asked the applicant to discuss occasions where he had expressed his criticism of Hezbollah and other Shia groups. The applicant said that he had never expressed his opinion in public, nor online. He said that his family harboured anti-Shia sentiment and he was raised to believe that they were his enemy. However, his attitude changed when he started university and was exposed to not only Shia Muslims but people from all faiths. He came to disagree with the sectarian discord between Sunni and Shia. For this reason, he had no problem accepting his wife’s faith.
The Tribunal asked the applicant how he would be recognised as a critic of Hezbollah when he has never publicly expressed his views. The applicant said that his wife’s relatives have connections within Hezbollah. The applicant could not explain how or why Hezbollah or other extremist Shia groups would see him as a critic or opponent. The Tribunal finds that the applicant’s decision to marry a Shia Muslim woman would not be seen as a criticism of Hezbollah, other Shia extremist groups, or the Shia faith. The Tribunal finds the applicant has conflated his fears from his wife’s family (and her family’s alleged connections to Hezbollah) with his claimed fear as a critic of Hezbollah.
The Tribunal finds the applicant’s written claim that he is a vocal critic of Hezbollah and other extremist Shia groups to be a significant exaggeration of the applicant’s upbringing in a Sunni household. On the applicant’s oral evidence, the Tribunal finds that the applicant grew up in a family which encouraged the sectarian divide, but he never voiced criticism of any Shia group except many years ago in the confines of his parents’ home. The Tribunal also finds the applicant would not publicly criticise Hezbollah or other Shia groups upon return to Lebanon, considering he has not done so before, and because he does not harbour anti-Shia sentiment. The Tribunal finds the applicant does not face a real chance of serious harm from extremist Shia groups as he has never voiced his opinion in public or online, and has never previously come to the attention of Shia groups as a critic.
Claims of harm from the applicant’s wife’s family
A separate claim, raised by the applicant in his written statements and at the hearing, is that he fears harm from his wife’s extended family in Lebanon. He claims that his wife’s relatives will harm him as he has married a Shia woman and, importantly, he has perpetrated an act of violence against a Shia woman.
The applicant’s wife’s parents are aware of, and have no objection to, the applicant’s religion. The applicant and his wife lived in a granny flat behind his wife’s parents’ house. The applicant was employed in his step father-in-law’s business.[12] The Tribunal accepts that news of their interfaith marriage would have reached the applicant’s wife’s relatives in Lebanon.
[12] Page 13 of the decision record dated 17 April 2024 by the delegate of the Department of Home Affairs, provided to the Tribunal on 20 June 2024.
The Tribunal has considered the applicant’s and his wife’s evidence, but does not find that the applicant faces a real chance of serious harm from his wife’s family, nor from Hezbollah. The Tribunal finds that the applicant’s wife’s family in Lebanon have not made threats of serious harm against the applicant, neither prior to nor after the applicant’s convictions, nor does it find they would attempt to seriously harm the applicant if he returned to Lebanon.
Firstly, the Tribunal notes its abovementioned credibility concerns. The Tribunal finds that if the applicant genuinely feared harm from his wife’s relatives, he would have mentioned it at some point in his immigration proceedings with the Department or General Division, or in his counselling sessions. His failure to do so raises concerns about the genuineness of this claim.
Secondly, the applicant initially claimed that his wife’s extended relatives are aware of his criminal convictions, and they are aggrieved by his violence against a Shia Muslim. However, when pressed during the hearing he said he did not know whether his wife’s Lebanese family members know of his convictions. The Tribunal notes that the applicant was convicted of the domestic violence offences against his wife in 2018. On his and his wife’s evidence, threats were last made against him in late 2016 or early 2017. The applicant did not receive nor was informed of any threats against him from his wife’s family after his convictions. Had the applicant’s wife’s Lebanese family been intent on seeking revenge for the applicant’s offending against a Shia Muslim, the Tribunal finds that news of this would have reached the applicant in Australia, especially considering that on the applicant’s evidence, his wife’s family in Australia is in contact with their relatives in Lebanon. The Tribunal finds that if recent threats had been made against the applicant, they would have been communicated to the applicant or his wife by his wife’s Australian family. The Tribunal draws the conclusion that no recent threats have been made against the applicant. As such, the applicant’s claim that he would be labelled an aggressor and harmed in Lebanon is speculation only.
Furthermore, on the applicant’s evidence, he has never met his wife’s Lebanese relatives, nor ever spoken with them. The applicant’s wife has had no contact with them in approximately 7 years. The Tribunal finds that had his wife’s family been so angered by their interfaith marriage that they threatened to harm the applicant, their threats would have been repeated over the years, particularly after the applicant’s criminal convictions. Even if the Tribunal accepts that they had threatened her husband in late 2016 (which it does not), these threats have not been renewed since then.
Furthermore, the Tribunal does not accept that the applicant’s wife’s family has connections to Hezbollah or within Beirut airport. The Tribunal notes that the applicant’s wife managed to travel to Lebanon in 2018 without her family finding or contacting her, despite her allegation that they have connections in the airport. While the Tribunal acknowledges the applicant’s claim that he is the target and not his wife, the Tribunal finds that if his wife’s family had contacts within the airport, they would have contacted his wife upon her arrival in Lebanon and enquired as to the applicant’s whereabouts. The Tribunal finds that the applicant’s wife’s family did not contact her upon her arrival in Lebanon as they did not know she was there.
The Tribunal put to the applicant its concerns regarding the passage of time since the alleged threats were made. The applicant responded that he heard about the threats from his wife at the time they occurred in 2016. He said they threatened they could get his name from the airport. He said they would not harm his wife as she is a woman. The applicant’s response does not assuage the Tribunal’s concerns. The applicant did not comment on the fact that over 7 years have passed since threats were allegedly made against him by his wife’s family. The Tribunal does not accept that his wife’s family threatened they could get his name from the airport, nor that they could actually get his name from the airport, considering they did not appear to know that his wife had travelled to Lebanon.
The Tribunal finds that the applicant’s wife’s family would not know if the applicant had travelled to Lebanon, nor would they discover him in Lebanon considering his oral evidence that he would have nowhere to go but his parents’ house in North Lebanon. Furthermore, even if the applicant’s wife and children travelled to Lebanon with him, the Tribunal does not accept this increases the risk to the applicant, considering his wife has previously travelled to Lebanon without her Lebanese family contacting her.

100. The Tribunal also does not accept that the applicant’s wife’s family has connections to Hezbollah. The applicant’s solicitor’s submission to the Department dated 29 February 2024 unconfidently states the wife’s family is ‘potentially linked to Hezbollah’.[13] They offered no persuasive evidence to corroborate this assertion. The Tribunal finds this assertion is speculation only and is not supported by persuasive evidence. In the applicant’s and his wife’s oral evidence, they did not specifically state that the applicant faced threats from Hezbollah, rather, they referred to threats from the applicant’s wife’s cousin [Cousin B]. The applicant said that [Cousin B] is connected with Hezbollah, but when pressed to explain the connection further, he said that every family in the south is connected. The applicant could not provide any further explanation as to how [Cousin B] is connected to Hezbollah, nor how Hezbollah presents a threat to him.
[13] Submissions provided by S.A.M. Legal to the Department dated 29 February 2024, in response to the Department’s s 57 request.
101. Based on the above, the Tribunal is not satisfied the applicant faces a real chance of serious harm from his wife’s family, nor from Hezbollah or other Shia extremist groups, as a result of his interfaith marriage or convictions against a Shia Muslim.
Claims of harm from applicant’s family
102. The applicant claimed in his First Statement that his marriage to someone from a Shia Muslim sect ‘triggered strong disapproval’ from his extended family, ‘including parents, uncles and cousins who adhere to hard-line Sunni Muslim ideologies’. The applicant’s First Statement refers to ‘potential harm’. The applicant did not provide specific details in his First Statement as to who specifically he feared harm from, nor what they would do, nor details of any threats previously made. The delegate found the threats from the applicant’s extended family in Lebanon were vague and lacked detail.
103. It was not until the applicant was pressed by the Tribunal that the applicant disclosed the names and whereabouts of the family members from whom he feared harm, and particulars of threats received.
104. The Tribunal accepts that the applicant’s extended relatives disapprove of his interfaith marriage. It accepts that when his extended relatives found out about his wife’s religion, they harassed him over the telephone to make his wife convert. The Tribunal accepts that the applicant argued with his uncle and cousins, harsh words were exchanged, and he cut off contact with them.
105. However, the Tribunal does not accept that the applicant’s uncle and cousins threatened to physically harm or kill the applicant. This is because the applicant did not mention that he had been the victim of such threats until specifically requested by the Department in their s 56 request of 21 February 2024. Even when specifically requested, the applicant could not provide particulars of the threats received. The applicant did not provide details of the exact nature of the threats, when they were received and from whom, until specifically pressed by the Tribunal. The Tribunal is concerned by the applicant’s unwillingness to come forward with this detail.
106. The Tribunal put to the applicant that he had not provided this level of detail to the Department. The applicant responded that he did not want to give the Department names of the persons from whom he feared harm. He thought this would make his problem bigger. When asked, he said he did not understand that information he gave to the Department would be kept confidential. He also blamed his mental health for the lack of detail provided to the Department.
107. The Tribunal does not accept this answer. The Tribunal notes that the applicant has been legally represented throughout his entire protection visa application. The applicant has provided multiple, detailed written statements. His representatives have provided multiple, detailed submissions. The First Statement alleges that he has been an outspoken critic of Hezbollah. The Tribunal finds he would not have written this if he did not believe his written statement was treated as confidential by the Department.
108. Furthermore, the Tribunal refers to its abovementioned credibility concerns and the fact that the applicant failed to raise any threats of harm from his extended family at any point prior to applying for protection. The Tribunal also finds this casts doubt on the credibility of the applicant’s claim.
109. The Tribunal has also considered the passage of time and the fact that the applicant argued with his family members in 2018, approximately 6 years ago. The Tribunal expressed its concern to the applicant about whether he faced an ongoing real chance of harm from his relatives considering it has been many years since he had any contact with them. The applicant responded that no one in Lebanon had his phone number. However, after the hearing, the applicant provided the Tribunal with a screenshot of [Cousin A’s] [social media] profile, with the profile picture showing him holding a rifle. The Tribunal notes from the screenshot that the applicant and [Cousin A] are [social media] friends. The Tribunal notes that had [Cousin A] wished to threaten the applicant, he could have done so on [social media].

110. The Tribunal has also considered the contents of the screenshot, but does not consider this satisfactory evidence that [Cousin A] is intent on shooting the applicant. While there is a small amount of writing in Arabic script on the screenshot, an online translation service states this translates to ‘Thank God’. The applicant is not named or tagged in the screenshot provided. There is nothing in the screenshot provided to indicate that [Cousin A] is a religious extremist or has any vendetta against the applicant. The Tribunal does not accept this screenshot adds any weight to the applicant’s claim.
111. The Tribunal has also considered the applicant’s oral evidence that [Cousin A] once shot his [Uncle A]. The applicant did not explain the reason for this and the Tribunal does not accept it is connected to the applicant’s claims for protection.
112. The Tribunal has also considered the applicant’s oral evidence that his [Uncle B] once shot his father in the leg for dating a Christian woman. The applicant provided little detail about this incident. He did not state when this specifically occurred, the circumstances of the shooting, details of the fight they had, nor how this alleged incident affected their relationship. The Tribunal notes that the applicant’s father and [Uncle B] continue to live in [Town 1]. The Tribunal also notes this claim was not put to the Department nor Tribunal before the hearing. Considering the lack of detail provided and the delay in raising this claim, the Tribunal does not accept that the applicant’s [Uncle B] shot the applicant’s father for dating a Christian girl.
113. Furthermore, the Tribunal notes and put to the applicant that his wife met his uncle and cousins in 2018, and they did not harm, harass or threaten her upon discovering her religion. The Tribunal put to the applicant that this may indicate he may face displeasure or ostracism from those relatives, but he may not face a real chance of conduct tantamount to serious harm. The applicant said that his relatives did not want to hurt his wife and child; he is the one who has wronged their culture. However, the Tribunal also notes from the applicant’s oral evidence that he receives news of his [Uncle B] and cousins from his father. He last received news of his [Cousin A] in 2019, approximately 5 years ago. The applicant said that when he speaks to his father, his father tells him not to return to Lebanon. However, the applicant did not say this was because of threats made against him. Rather, the applicant’s oral evidence was that his father advises him to stay in Australia so as to not abandon his wife and children. The applicant did not mention any threats of harm from his uncle or cousins since the phone calls received in 2018.
114. The applicant said that his father is currently engaged in an inheritance dispute with his brother ([Uncle A]), however, this dispute relates to the house the applicant started to build and in which his [Uncle A] currently lives. While the Tribunal notes the applicant’s representative stated in their response to the s 56 request dated 23 February 2024 that the applicant was disowned and deprived of any entitlement to inheritance after his [Uncle B] discovered his wife was a Shia Muslim, the Tribunal does not accept this assertion as it is inconsistent with the applicant’s oral evidence and, more importantly, the submission states that news of the applicant’s wife’s Shia identity reached [Uncle B] after she returned to Australia. This is inconsistent with the applicant’s and his wife’s oral evidence. As such, the Tribunal finds the inheritance dispute is unconnected to the applicant’s claim regarding his interfaith marriage.
115. Considering the evidence supporting this claim as a whole, the Tribunal finds it does not substantiate a finding that there is a real chance of serious harm to the applicant arising from his [Uncle B] and cousins because of his interfaith marriage. The Tribunal does not accept that the applicant’s [Uncle B] and cousins would seriously harm the applicant if he returned to Lebanon with his wife and children. In reaching this finding, the Tribunal has considered the delay in the applicant raising this fear in his previous migration proceedings, his failure to raise this fear with his counsellors, the passage of 6 years since the applicant had any communication with his [Uncle B] and cousins, the absence of harassment or threats in this time despite the applicant’s [social media] connection with [Cousin A], the absence of threats to the applicant’s wife while she was in Lebanon, the absence of any reports of recent threats, and the fact that the applicant was reticent about the specific details of this claim until specifically pressed by the Tribunal.
Interfaith marriage claim
116. The Tribunal has also considered any wider consequences to the applicant arising from his marriage to a Shia Muslim woman. The applicant claimed in his First Statement that he is in a vulnerable position due to the sectarian divide between Sunni and Shia and may attract societal discrimination and ostracism due to his inter-sect marriage. The Tribunal notes that the applicant did not raise discrimination or ostracism from the wider community during the hearing. When specifically asked who he feared harm from, the applicant named members of his family and his wife’s family, rather than society in general.
117. The Tribunal notes that DFAT is not aware of any reports to suggest that those involved in mixed marriages are subject to any official discrimination. In cases where those involved in mixed marriages have experienced societal discrimination in the form of harassment or ostracism, this is most likely to be the result of specific localised factors (such as a family’s socioeconomic standing or level of social/religious conservatism) rather than being systemic in nature.[14] This country information is consistent with the applicant’s oral evidence that his fears come from members of his or his wife’s family, or extremists connected with his wife’s family. As such, the Tribunal prefers the oral evidence given by the applicant. The Tribunal does not accept the applicant’s written claim that he will face societal discrimination and ostracism due to his interfaith marriage. The Tribunal does not accept the applicant faces a real chance of serious harm from the wider community in Lebanon as a result of his interfaith marriage.
[14] ‘DFAT Country Information Report: Lebanon’, Department of Foreign Affairs and Trade, 26 June 2023 at 3.21.
Religion
118. The applicant’s religious claims arise in the context of his marriage to a Shia Muslim woman, and his alleged vocal opposition to Hezbollah and other Shia extremist groups. He did not raise claims for protection solely on the basis of his religion, and the Tribunal notes that if returned to Lebanon, the applicant said he would return to his parents’ house in North Lebanon, which is a Sunni majority area.[15] As such, the Tribunal does not find the applicant faces a real chance of serious harm in his home area of North Lebanon for reason of his religion.
[15] Ibid at 3.19.
Claims of harm as a result of having to disclose criminal convictions
119. The Tribunal has considered whether the applicant faces harm from the wider Shia Muslim community as a result of his convictions against a Shia woman. The Tribunal put to the applicant that while there may be some social stigma against convicted criminals, this may not render it impossible to find work, nor would low-level discrimination be considered tantamount to persecution. The applicant said that his wife’s family would not accept what he has done and would seek revenge. When asked about the consequences of his convictions, the applicant said that his wife’s family would harm him as they would find out about the convictions from the government.
120. For the sake of completeness, the Tribunal also put to the applicant that even if the authorities or community found out about his convictions, country information indicates that domestic violence offences against women in Lebanon are reasonably common, and women in Lebanon continue to face official discrimination.[16] The Tribunal asked the applicant why anyone would care that he assaulted his wife. The applicant said that the issue was that he is a Sunni and he hit a Shia. The issue was religious sectarianism, rather than gender.
[16] Ibid at 3.62.
121. The ongoing trend in the applicant’s evidence is that his fears come from his wife’s family, or extremists connected with her family, rather than the government or wider community. As such, and in light of the country information, the Tribunal is not satisfied the applicant faces a real chance of serious harm from the government or wider Shia community as a result of being a convicted criminal.
Mental health
122. The applicant discussed his suffering mental health in various contexts in written submissions and during the hearing. The applicant was asked by the Tribunal what consequences he feared if returned to Lebanon as a person with mental health problems. The applicant did not claim to directly fear persecution from the government or any other person because of his mental health diagnoses, rather, he claimed:
·he would not be able to obtain adequate treatment for mental health in Lebanon;
·his poor mental health would impact his ability to find work;
·his poor mental health would heighten his vulnerability in Lebanon;
·he may kill himself in Lebanon.

123. He also alleged his poor mental health impacted his memory and prevented him from raising his claims for protection sooner. The Tribunal has considered the impact of the applicant’s mental health on his inability to articulate his claims for protection at an earlier stage in its above discussion on credibility.
124. The applicant did not raise specific claims of persecution due to his physical health, nor did he raise his physical health as an impediment to finding employment or participating in the community in Lebanon. The Tribunal notes that the applicant suffers from [a named] syndrome but, according to the clinical records provided, this does not stop him from sleeping.[17]
[17] The applicant’s pre-hearing submissions and annexures, provided to the Tribunal on 13 June 2024, at page 141.
Difficulties accessing mental health treatment
125. As stated above, the Tribunal accepts the applicant suffers from anxiety, depression and PTSD. He takes mirtazapine and he is currently receiving face-to-face and video counselling sessions provided by [Agency 1].
126. The Tribunal put to the applicant that his fear of impact to his mental health if returned to Lebanon did not involve any persecutory action on the part of the government or any other agencies or third parties. The applicant said that his mental health is connected to all parts of his story and his life in Lebanon, which the Tribunal takes to mean, as explained in the post-hearing submissions,[18] that his anxiety, depression and PTSD will exacerbate the reasons why he fears returning to Lebanon.
[18] The applicant’s post-hearing submissions, provided to the Tribunal on 25 June 2024 at page 9.
127. The applicant said that he would not be able to receive adequate treatment for anxiety, depression and PTSD as there is no treatment available, and it is expensive. The Tribunal put to the applicant that online information indicates there are telehealth services available in Lebanon, including online counselling. The applicant said he had not heard of online counselling in Lebanon, but said he could not access it in any case due to the lack of internet access. The Tribunal put to him that this was a problem that affected the country as a whole, and not just him. The applicant responded that he would be personally affected as he would not be able to find a job due to his mental health.
128. The Tribunal notes that while information online indicates there are online counselling services available in Lebanon, it also notes that Lebanese internet users have some of the slowest internet speeds in the world, particularly in rural areas.[19] The Tribunal also notes from country information that mental health services are scarce, especially outside Beirut, and the economic crisis has led to a mass exodus of mental health professionals from Lebanon.[20] The country information provided in the representative’s pre-hearing submissions supports this.
[19] ‘DFAT Country Information Report: Lebanon’, Department of Foreign Affairs and Trade, 26 June 2023 at 3.50.
[20] Ibid at 2.17.
129. The Tribunal has considered the fact that he currently receives treatment for anxiety, depression and PTSD, and has assessed whether he faces a real chance of persecution in Lebanon if he cannot continue treatment.
130. The applicant has not claimed that he would be refused mental health care for any particular reason, rather he alleges that if it exists at all it would be very expensive. He also alleges that it would be extremely difficult to access online health care due to widespread internet problems in Lebanon. He alleges that the lack of basic necessities in Lebanon like petrol, power and water would exacerbate his anxiety, depression and PTSD. The Tribunal accepts that medication is expensive, mental health services are scarce, and it would be difficult to access online mental health services. However, the Tribunal finds that the essential and significant reason for the denial of anxiety, depression and PTSD treatment to the applicant is the lack of services available, or inability to access online services. The Tribunal is not satisfied the essential and significant reason for the harm is any of the 5 refugee protection reasons in s 5J(1)(a).
131. The applicant has also claimed that his anxiety, depression and PTSD will prevent him from finding work and will heighten his vulnerability in Lebanon. Again, the applicant has not claimed that he will be discriminated against by employers because of his mental health and there is no persuasive evidence before the Tribunal that someone in the applicant’s position would face such treatment. Rather, he claims that his anxiety, depression and PTSD will hinder his ability to find work. The Tribunal is not satisfied the essential and significant reason for the harm is any of the 5 refugee protection reasons in s 5J(1)(a).
Perception of people with mental health issues
132. As a separate issue, the Tribunal has also considered information in the latest DFAT country information report which states:
In country sources report that people with a mental illness have traditionally been subject to considerable stigma, especially those with more noticeable symptoms, who are perceived as ‘incompetent, aggressive, violent’ and unable to participate in the community. In-country sources told DFAT there is a widespread belief that the mentally ill should simply ‘snap out of it,’ however, also reported that the considerable stresses of the August 2020 port blast had led to an increased openness around mental illness, especially anxiety and depression.[21]
[21] Ibid.
133. The Tribunal is not satisfied the applicant faces a real chance of serious harm from the Lebanese community due to his anxiety, depression and PTSD. Firstly, it notes no express claim has been raised that he will directly face persecution due to his anxiety, depression and PTSD, and there is no persuasive information before the Tribunal that people with these conditions face such a risk. The applicant has not raised any claim that he will be perceived as incompetent, aggressive or violent as a result of his mental health problems. Secondly, the Tribunal finds the applicant’s mental health problems would not prevent him from participating in the community. In reaching this conclusion, the Tribunal notes that the applicant has given some thought to his employment prospects in Lebanon, albeit which he believes are limited due to the economic situation. When discussing work opportunities in Lebanon, the applicant raised issues such as the low wages in Lebanon, or lack of opportunities for [his line of business], rather than his mental health preventing him from finding work. The Tribunal has also considered the fact that the applicant immediately returned to work upon release from immigration detention in December 2022, despite suffering from mental health problems, as evidenced by the clinical reports provided.[22] The applicant claims his wife and children’s presence in Lebanon would exacerbate his stress. However, on the applicant’s oral evidence, he is committed to doing all he can to support his wife and children, and his mental health has been impacted because of his separation from them. The Tribunal finds that if he and his family were reunited in Lebanon, the applicant would try to find work and support them. On his oral evidence, the Tribunal accepts that the applicant would suffer stress in Lebanon, but finds that despite being affected by stress, he would be able to participate in the community, such that he does not face a real chance of serious harm from the community. The Tribunal finds that the applicant would participate in the community and avoid the stigma attached to those with more noticeable symptoms.
[22] For example, at pages 82, 222, 232 of the pre-hearing submissions and annexures.
Risk of suicide
134. The Tribunal has also considered the applicant’s oral evidence that he may kill himself if returned to Lebanon. The Tribunal notes the applicant had not claimed to have suicidal ideation prior to the hearing, and he did not raise suicidal ideation when initially asked about his mental health during the hearing. He only raised it when asked by his barrister later during the hearing. According to the clinical records provided, the applicant has denied plans to harm himself, has denied self-harm or suicide attempts, and has made comments about self-harm out of frustration.[23] According to the [Agency 1] counsellor report dated 9 May 2024[24], as at April 2024 the applicant’s suicide risk has been assessed as low. Furthermore, he submits his primary protective factor is his family, which contributes to his low assessed risk of suicide.[25] The Tribunal finds the applicant will face stress upon return to Lebanon but, on the evidence, he would not be driven to suicide. As such, the Tribunal does not find the applicant faces a real chance of serious harm for this reason. Even if the applicant was driven to suicide, the Tribunal does not consider that this would involve persecution of the applicant by another person for one of the reasons specified in s 5J(1)(a).[26]
[23] See page 232 of the pre-hearing submissions and annexures.
[24] See page 472 of the pre-hearing submissions and annexures.
[25] See page 15 of the pre-hearing submissions and annexures.
[26] CSV15 v MIBP [2018] FCA 669.
Economic claims
135. During the hearing, the applicant said that the economic situation in Lebanon has worsened, and he would not be able to find work. He said there is an 80% unemployment rate in Lebanon, which is why his brothers have gone to [Country 1] to find work. He said that while he has [Industry 1] work experience, wages are low. He also said that due to his criminal convictions he would be denied the ability to work for the government. The Tribunal notes the applicant’s barrister, in his post-hearing submission dated 24 June 2024, states ‘the economic conditions in Lebanon, compounded by his criminal record, would make it nearly impossible for him to find employment and support his family’.
136. The Tribunal put to the applicant that the economic conditions in Lebanon affected the population as a whole, and considering his age, language skills, work experience and education, there was nothing to indicate he faced any particular or personal disadvantage in finding employment. The applicant said that he would be stressed all the time in Lebanon.

137. The Tribunal notes the applicant’s evidence that the reason he would not be able to find work in Lebanon was the high rate of unemployment across the country. He said that if he was able to find work, he would not earn enough money to support his family and they would have a hard life. The Tribunal has also considered the pre and post-hearing submissions made on the applicant’s behalf that his criminal record would compound his inability to find employment. The Tribunal notes the country information referred to in the submissions do not relate to the specific situation in Lebanon, rather they provide general information on systemic barriers to criminals reintegrating into society. The Tribunal places little weight on this evidence as it is general information only and none of the articles refer to the situation in Lebanon specifically. Rather, the articles refer to the situation for convicted criminals in the USA,[27] India,[28] and the Philippines.[29]
[27] Reentry and Reintegration Challenges - Criminal Justice - iResearchNet
[28]
[29]
138. The Tribunal does not find the applicant would be denied employment for reason of his criminal convictions. When asked how an employer would find out about his convictions, the applicant said that his criminal convictions may be disclosed when he arrives at the airport in Lebanon. As set out above, the Tribunal does not accept the applicant’s wife’s family has connections at the airport. In any case, even if the reasons for the applicant’s expulsion from Australia were provided to the Lebanese authorities, the applicant could not explain how this information would make its way to a prospective employer or why he would be denied employment. There is no persuasive information before the Tribunal to suggest the applicant would be denied employment because of his convictions.
139. Furthermore, while ‘serious harm’ may include significant economic hardship that threatens the person’s capacity to subsist or the denial of capacity to earn a livelihood of any kind, whether denial threatens the person’s capacity to subsist, considering the applicant’s personal circumstances, including his work experience, qualifications, age and language skills, the Tribunal does not find the applicant faces a real chance of serious harm tantamount to persecution as a convicted criminal. The applicant has never worked for the Lebanese government, nor did he express any wish to do so during the hearing. He has experience in unskilled labour. According to the latest DFAT Country Report on Lebanon, international media reports estimate that about a third of the labour force is unemployed.[30] Unemployment rates are higher among Lebanese women compared to men. In 2022, the International Labor Organization reported a 32.7% unemployment rate among women compared to a 28.4% rate among men within the Lebanese labour force.[31] Considering the applicant’s personal circumstances, the Tribunal does not find that his absence from Lebanon for approximately 9 years would prevent him from finding work. The Tribunal finds he would be able to find work in Lebanon that would enable him and his family to subsist.
[30] ‘DFAT Country Information Report: Lebanon’, Department of Foreign Affairs and Trade, 26 June 2023 at 2.11.
[31] Siba Mroueh, Lebanon's Unemployment Crisis: Strategies for Job Creation in a Collapsed Economy, Arab Reform Initiative (27 October 2023) <Lebanon’s Unemployment Crisis: Strategies for Job Creation in a Collapsed Economy – Arab Reform Initiative (arab-reform.net)>
The current security situation in Lebanon
140. During the hearing the applicant claimed that he would not be safe in Lebanon due to the risk of war. He claimed he would not be able to survive in a war-torn country where there is a lack of basic necessities like petrol, power and water. He also claimed his experience of witnessing violence during the 2006 Lebanon-Israel war has contributed to his fear of returning to a conflict-ridden environment.
141. The Tribunal accepts that the security situation in Lebanon is precarious and there are rising tensions between Israel and Hezbollah.[32] The Tribunal notes information on the DFAT website which advises Australians not to travel to Lebanon due to the volatile security situation and the risk of the security situation deteriorating further.[33] The Tribunal notes that rocket and missile fire has increased in southern Lebanon, and the conflict could spread to other areas in Lebanon.[34]
[32]
[34] Ibid.
142. While the applicant is from [Town 1] and stated during the hearing that he would return to his parents’ house in North Lebanon if obliged to return, the Tribunal accepts there is a real chance the applicant will be the victim of military action. However, the Tribunal is not satisfied on the evidence that the essential and significant reason for the harm is any of the 5 refugee protection reasons in s 5J(1)(a) of the Act.
Conclusion on the refugee criterion
143. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.

145. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) for reasons of his marriage, religion, political opinion, criminal convictions, mental health conditions or the economy.
146. In relation to the applicant’s claims of being denied mental health treatment, the Tribunal considers that the real risk of being unable to access adequate treatment is one faced by the population generally and not by the applicant personally such that s 36(2B)(c) applies and there is taken not to be a real risk he will suffer significant harm in Lebanon on this basis.
147. The Tribunal also notes the applicant’s evidence he may commit suicide upon return to Lebanon. However, the Tribunal does not consider that this would be harm resulting from the acts or omissions of another person, as is contemplated by the definition(s) of significant harm.[35]
[35] GLD18 v MH [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 699.
148. In relation to the applicant’s claims regarding his fear of war in Lebanon, for the reasons set out above, the Tribunal considers that the real risk of being affected by war is one faced by the population generally and not by the applicant personally such that s 36(2B)(c) applies and there is taken not to be a real risk he will suffer significant harm in Lebanon on this basis.
Member of the same family unit

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
Referral to the Minister under s 417

150. The Tribunal is sympathetic to the applicant and his family. It acknowledges this has been a very difficult time for everyone involved. It accepts the applicant has been traumatised by his time in immigration detention, the uncertainty of his future, and the ongoing separation from his family. This is supported by the medical evidence provided and the applicant’s own evidence. The Tribunal finds that a repeat of this ordeal would be a strong deterrent against the applicant reoffending in the future. The Tribunal also notes the applicant’s wife has been his constant support throughout his revocation request, General Division application, and protection visa application. She gave heartfelt evidence at the hearing about her commitment to the applicant. The applicant has [Australian citizen] biological children, and an Australian citizen stepdaughter who he treats as his own. It is not in the best interests of these children, who have lived in Australia for their entire lives, to relocate to Lebanon with the applicant nor face continued separation from him. Having considered the complexities of this case and the Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J), the Tribunal refers the matter to the Minister for consideration.
DECISION
151. The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
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.
…