2440003 (Refugee) - [2025] ARTA 1520

2440003 (REFUGEE) [2025] ARTA 1520 (5 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2440003
Tribunal:Senior Member Denis Dragovic
Date:5 May 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Senior Member D. Dragovic

Statement made on 5 May 2025 at 2:06 PM
CATCHWORDS
REFUGEE – protection visa – Lebanon – Federal Court and Federal Circuit Court remittals – apprehended bias by previous reviewers – conviction, fine and further allegation – competing obligations of reviewer and need to consider all possible claims – unauthorised maritime arrival and long-term immigration detention – work delivering humanitarian aid to Syrian refugees imputed as political – short-term work and no contact with refugees – fear of harm from violent criminal supporter of Hezbollah – no evidence of direct motivation to harm, but possibility of indirect motivation – long-term family feud – attacks on applicant and brother in Australia – no family remaining in home country – new claim of conviction in absentia and arrest warrant – no evidence of date of alleged crime – credibility of claim and provenance and genuineness of documents – not possible to verify in reasonable timeframe – no evidence to refute claim – country information – recent security circumstances and weakening of Hezbollah – entry controls and interviews – fear of harm from Hezbollah supporter accepted – possibility of relocation – criminal case fabricated by feuding family not for refugee criterion reason – complementary protection – detention for fabricated crime not significant harm, but amounts to severe pain and/or suffering – not faced by population generally and applies in all areas of country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (c), (2), (3), (4)(a), (c), 5K, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
CNY17 v MIBP [2018] FCAFC 159
FCS17 v MHA (2020) 276 FCR 644
MIBP v AMA16 [2017] FCAFC 136
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 14 June 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Tribunal has concluded that the matter should be set aside and remitted for reconsideration based on the provision of documents that suggest the applicant has been falsely accused of attempted murder in Lebanon. The Tribunal has attempted to independently verify these documents but was unable to in a reasonable amount of time and without the timely assistance of the Department. The Tribunal is seriously concerned…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2440003 (Refugee)

Details

AGLC: 2440003 (Refugee) [2025] ARTA 1520
Case: [2025] ARTA 1520
Decision Date: 5 May 2025

CaseChat Overview and Summary

The case, identified as 2440003 (Refugee), involves a Lebanese national who arrived in Australia in March 2013 as an unauthorised maritime arrival and has been in immigration detention for over ten years. The primary dispute centres on the applicant's eligibility for a protection visa, with issues concerning past humanitarian activities, personal safety, and family disputes. The Federal Circuit Court and the Federal Court had previously reviewed the case, leading to a remittal for further consideration. The applicant asserts that he faces harm due to his past work delivering humanitarian aid to Syrian refugees, an ongoing family feud, and a personal conflict with a Hezbollah supporter. The Federal Court was required to decide on the credibility of the applicant's claims, the validity of the country information provided, and whether the applicant qualified for complementary protection.

The legal issues included assessing the applicant's past activities in Lebanon, determining the veracity of his claims regarding the risk posed by Hezbollah, and evaluating the potential for relocation within Lebanon. The Court considered the appellant's work with Syrian refugees, which he claimed was humanitarian, but which could be interpreted as political by the authorities. Despite the short duration of his work and lack of direct contact with refugees, the Court acknowledged the risk posed by Hezbollah, given the applicant's association with aid deliveries. The Court also examined the family feud and personal animosity, noting that while the family feud was long-standing, the specific threat from the Hezbollah supporter was not substantiated by direct evidence. The Court found that the applicant's fear of harm from the Hezbollah supporter was credible, despite the absence of direct evidence of motivation to harm. The possibility of relocation within Lebanon was deemed insufficient to mitigate the risk.

The Court's reasoning led to the conclusion that the decision under review should be remitted for reconsideration, primarily due to the need for further examination of the applicant's claims and the country information. The Court highlighted the importance of considering all possible claims and the competing obligations of the reviewer. It was determined that the detention for a fabricated crime amounted to severe pain and/or suffering, which did not generally apply to the population but was specific to the applicant. The final orders included remitting the decision back to the original decision-maker for a thorough reassessment, ensuring all claims and evidence were properly considered within the framework of the applicable guidelines and legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. CONSIDERATION OF CLAIMS AND EVIDENCE The applicant is a [Age]-year-old Lebanese male from the northern governorate of Akkar. The applicant arrived in Australia in March 2013 as an unauthorised maritime arrival. He has been in immigration detention for over ten years including through the period that this matter was considered. The applicant fears harm for three reasons; (1) his past activities supporting Syrian refugees; (2) a personal animosity with a violent criminal supporter of Hezbollah; (3) and an ongoing family feud. Past activities supporting Syrian refugees and the threat from Hezbollah The applicant claims that in 2013 he was asked by a cousin, [Mr A], who worked for a [company], to help with some deliveries to Syrian refugees inside Lebanon. He was told that he’d get paid to do the work. The applicant accepted and worked solely with his cousin for 2-3 months, according to the evidence provided at the hearing. I note that the length of time varied at different stages of his engagement with the Australian government including estimates of 6-8 months. When it was put to the applicant that there was a discrepancy, he said that it was twelve years ago and his memory is vague but remembers with certainty he had worked for at least a few months. The applicant described his job as being to load a truck and then at the destination to empty the truck. He said that the contents were [deleted]. He said that he was handing over the contents to one person and not distributing them to refugees himself. He said that the work wasn’t every day but ranged from once a week to three times a week. He confirmed that he never crossed the border into Syria. The applicant said that one day he learned through his cousin that the owner of the [trucks], [Mr B], was ‘arrested’ but it was not known by whom. Acknowledging the situation in Lebanon at the time, I accept that the term ‘arrested’ could infer being detained by parties other than the authorities. The applicant believes Hezbollah had taken [Mr B]. The applicant said that he and his family hadn’t heard of [Mr B] since then. The applicant believes that he was killed. The applicant fears that Hezbollah took [Mr B] because he was delivering aid to people who were against them and as such he is at risk as well. Following [Mr B]’s ‘arrest’, the applicant couch-surfed at friends’ houses as he feared returning home and then he left Lebanon, leaving legally using his own passport from Beirut airport on [Day 1] March 2013 and arriving to Australia on [Day 2] March 2013.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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