2440003 (Refugee)
[2025] ARTA 1520
•5 May 2025
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 remittedLEGISLATION
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 2CASES
CNY17 v MIBP [2018] FCAFC 159
FCS17 v MHA (2020) 276 FCR 644
MIBP v AMA16 [2017] FCAFC 136Any 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 about the veracity of these claims. This decision turns on the documents being genuine.
The applicant is a national of Lebanon. He applied for the visa on 28 September 2015.
The delegate refused to grant the visa on 14 June 2016.
The matter was appealed to the Immigration Assessment Authority and the reviewer affirmed the decision in May 2019.
The applicant appealed the IAA decision to the Federal Circuit Court of Australia. A decision was made to dismiss the matter. The applicant appealed to the Federal Court.
The matter was heard as [deleted] by [Judge 1] . The judge quashed the decision of the lower court referring to the decisions of Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 and CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159.
Both cases involved evidence of the appellants having been charged by police and this evidence being before the reviewer. The question in both was whether the presence of this information before the reviewer exposed the decision to apprehended bias.
In AMA16, Griffiths J noted that the IAA reasons were ‘simply silent’ on the relevance or irrelevance of this information. That it was provided and yet not engaged with opened the door to a finding of apprehended of bias.
The relevant prejudicial material in this matter, which I note was only available to me via the judgement of [Judge 1], was that the IAA had an email with information that the applicant had been ‘convicted of assault of a child under 16 yrs and Indecent assault with a child under 16 yrs. A fine has been imposed of $2500.00 and he has been placed on the Sex Offender Register for 8 years,’ and that he was furthermore wanted with regards to an alleged attempt at perverting the course of justice.[1]
[1] At [7]
The matter was remitted to the IAA to be heard a second time.
The second IAA reviewer affirmed the decision. Relevantly, this reviewer engaged with the police investigation into the applicant’s alleged offending as well as the allegations of an attempt at perverting the course of justice. The reviewer did not interview the applicant about these matters.
The applicant appealed this decision to the Federal Circuit Court of Australia. The matter was heard by [Judge 2]. In that matter several relevant High Court and Federal Court cases were considered and how the facts of the present case distinguished it from those before. Ultimately, [Judge 2] found that:
Weighing up all of these matters, I consider that a fair-minded, fully-informed lay observer might reasonably have thought that the second Authority might not have brought an impartial mind to this matter. The allegations of attempting to pervert the course of justice can be disregarded, because, by the time of the second Authority’s decision, they had been resolved in the applicant’s favour. The Authority said it accepted that, and this court can take that acceptance as not having had even a subconscious bearing on the Authority’s deliberations.
However, the second Authority had information that the applicant had been convicted of an assault of a child under 16 years and the sexual assault of a child under 16 years. This is very prejudicial information, which could have a subconscious effect on the Authority’s deliberations. The fact that the applicant was actually convicted of these offences, rather than there being mere allegations of offences, is significant.
Unfortunately, it is not clear from the judgement what the preferred course of action for an administrative decision maker is after the details of the offending are included in the judgement that remits the matter for reconsideration.
[Judge 2] engaged with CNY17 by writing, ‘Nettle and Gordon JJ noted at [99] that, in that case, the Authority had not said that it had put the prejudicial material to one side. However, their Honours did not expressly state that such an assertion would have been sufficient to dispel a reasonable apprehension of bias.’ No, but they did offer an alternate course of action. The majority found that in a situation where prejudicial information was provided by the Secretary then the better course of action by the reviewer would have been to invite the applicant to comment on the adverse information (see [102]).
Noting this convoluted pathway, when the matter was constituted to this Tribunal the Departmental file was not provided. Presumably, this was intentional. As such, the original decision and the protection visa application form were not available along with any other material provided to the Department including the original sources of information pertaining to the convictions and subsequent allegation. A request was made, and subsequently fulfilled, to have them provided but only those documents and no others.
The Tribunal Registry, being a bureaucracy, prepared a file as is their remit for this matter. This file included not only the judgement of [Judge 1] , as noted earlier, but also that of [Judge 2] in which similar details of the prejudicial evidence was included.
As such, the Tribunal finds itself in the situation that [Judge 2] had concluded has a subconscious effect on its deliberations. In considering how to approach this conundrum I considered the following options:
a)To clean the files and then request reconstitution of the case to another member.
b)To proceed with the matter
I chose the second option for the following reason. While I acknowledge the findings in both judgements noting that they were engaging with the unique circumstances in each case at that time, I also note that there are certain competing obligations that remain in tension.
On the one hand, as noted by [Judge 2] a fair-minded, fully-informed lay observer might consider the decision maker to have been biased based on the information known to the decision maker regarding the applicant’s conviction of assault and indecent assault of a child under 16 years of age. But I also note that the applicant has applied for protection fearing return to Lebanon. It is the Tribunal’s responsibility to consider all basis upon which the applicant might face persecution including unarticulated claims that arise from the facts. In this case, that the applicant has been convicted of assault and indecent assault of a minor may, depending on the circumstances, be a basis of a claim—How would the applicant’s community react? Would the information be shared with the Lebanese government and if so, how would that impact him? Would Hezbollah, a state within a state that abides by strict Islamic jurisprudence act on the information? By pursuing option (1) it would deny the applicant a possibility for the entirety of his claims to be considered. But by pursuing option (2) because of the prejudicial evidence there is a risk that a ‘fully-informed lay observer might’ consider me to have a subconscious bias against the applicant.
In further considering this situation, I note that there are other cases that come before the Tribunal that have a degree of repugnancy and could influence the subconscious. It is not unusual for the Tribunal to have cases where applicants have married under the age of 16; been members of gangs that have committed violent crimes; or in their roles as elders, imposed punishments that would not be tolerated in Australia. All of these could potentially be perceived to act subconsciously on the member’s mind, but it is the role of Tribunal members to consider all possible claims upon which there could be a basis that the applicant faces a well-founded fear of persecution.
Noting that the details of the assault and sexual assault are not known to the member but that the sentence appears relatively minor being without a term of imprisonment, I believe the subconscious impact of this information to be minimal and easily managed by way of the reasoning process and general procedural fairness.
To avoid doubt, while the below decision does not engage with this matter further, as I have remitted it for reconsideration, I note that at the hearing the applicant’s past convictions were discussed.
The applicant appeared before the Tribunal on 6 December, 17 December 2024 and 28 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from his two brothers. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for 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 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.
The applicant said that he didn’t know any others who worked for [Mr B], but he knew of a man named [Mr C] who regularly visited while they were working. He wasn’t sure whether [Mr C] had a similar business, and they worked together, or if [Mr C] worked for [Mr B].
I asked the applicant why he thought that anyone would care that he was providing support to Syrian refugees in 2012/13 as there is plenty of information that suggests that a large part of the Lebanese community at that time was helping.[2] The applicant acknowledged that a lot of people were helping Syrians. But he said that he believes that Hezbollah thought that he was delivering things other than food aid. He reasons this because they took [Mr B], and the only reason they would take him is because they thought he was helping with something other than food aid.
[2] “DFAT Country Information Report - Lebanon", Department of Foreign Affairs and Trade (DFAT), 18The applicant claimed that as people know each other in the area, someone who knows others in Hezbollah heard that they were searching for people who were helping Syrian rebels against the Syrian government. I put to him that’s not surprising considering Hezbollah was a staunch and long-time supporter of the al-Assad regime. He responded by returning to the claim that they arrested [Mr B].
The applicant claims that one of Hezbollah’s supporters, [Mr D], started looking for him. The applicant provided information about [Mr D] describing him in effect, as a thug and enforcer for Hezbollah with national reach and a posse of supporters. The applicant provided the following evidence about [Mr D]:
a.An article describing the involvement of [Mr D] in the killing of a senior Lebanese Christian, [Mr E].
b.[Social media] videos showing a bearded man with drugs and weapons. The [Social media] video was under the name of [Mr F].
c.Photos of a bearded man in various poses next to weapons, military vehicles and a car painted in support of Bashar al-Assad.
More hyperlinks to social media accounts were provided in post hearing submissions.
Regarding the article covering the death of [Mr E], I asked why, if [Mr D] is involved in high level kidnapping and assassination, would he care about the applicant considering his low-level profile. The applicant said that because the applicant is from the same area as [Mr D], were [Mr D] to get him on behalf of Hezbollah it would give him standing in Hezbollah’s eyes.
The applicant claimed that [Mr D] is powerful enough that he could threaten the Lebanese Prime Minister if he wanted to as Hezbollah gives him a lot of money and that is why he has a large group that supports him.
The applicant claimed that his family reported Hezbollah visits to their home while the applicant’s mother was still living in Lebanon. The applicant’s mother provided a statutory declaration in which she wrote that the visits continued for a ‘year or so’ after the applicant left. She wrote that they came 3-4 times until she believes that they were satisfied that the applicant had left Lebanon. She did not know who they were or with whom they were affiliated.
The applicant provided an article about the killing of [Mr C] in 2022, the man who had worked alongside [Mr B], in 2022. He claimed that [Mr D] was behind his death. I noted that the article states that the shooter was from the same family and that it is an ‘individual dispute’. I put to him that it doesn’t sound like Hezbollah targeting someone for providing assistance to refugees ten years earlier. He said that in Lebanon they will not put in the news that Hezbollah was behind a murder. I noted that [Mr C] was in Lebanon and that it was hard to believe that Hezbollah waited ten years to target him. He said that they killed him because he is against the Syrian regime and against Hezbollah as well as because he was doing the same deliveries that [Mr B] and the applicant were involved in. The applicant added that people in Lebanon seek revenge after any period of time.
I put to the applicant that other evidence available to me suggests that the applicant has a family relation through his mother’s side in Hezbollah, and I asked whether he had sought through him to mediate the threat from [Mr D] or alternatively to mediate through elders. He said that no one can talk with Hezbollah as they are so strong. He added that all of his family are in Australia and as such there is no one there to act on his behalf. I noted that at the time that the threat occurred he had a lot of family in Lebanon including many on his mother’s side according to his protection visa application and evidence at the hearing. He said that he didn’t have strong relations with them other than the cousin he worked with.
I asked whether he had considered fleeing to Beirut rather than to Australia. He said that Hezbollah can reach Beirut. He said that before [Mr D] started searching for him Hezbollah were already searching for him as well as people from the Syrian regime. He said that they all work together.
The applicant’s eldest brother, Khalid Ali, gave evidence at the second hearing. He claimed that when he returned to Lebanon in 2023 the community told him that [Mr D] was still looking for the applicant. He claimed that people in the community would approach him asking about the applicant ‘as if to ask’ about his wellbeing. He claimed that in 2023 a person close to [Mr D] secretly approached him to tell him that he should do everything to prevent the applicant from returning to Lebanon. During the witness’ return to Lebanon he did not experience any harm.
The eldest brother’s evidence in both oral and written format, in summary, is that [Mr D] is a thug with connections to Hezbollah and is involved in drug operations. He claimed that for some people, being involved in the provision of aid to Syrians is perceived to be an act of support for those who were fighting against the then regime.
The dispute with the [G][3] family
[3] I have used a pseudonym as I am concerned that by naming the family, despite there being a non-publication order under s 369 of the Act, the decision may be used to impugn the standing of the family. This action was taken as it may not be widely known that the nature of this jurisdiction does not allow for findings of fact to be treated as findings of fact outside of this jurisdiction. Furthermore, I intentionally chose an Anglo-Saxon pseudonym to avoid the possibility of impugning another family that may be involved in the complex web of Lebanese clan politics.
The applicant claimed that the dispute with the [G] family started before he was born. The mother’s statement indicated that it was from the 1970s, beginning over a property dispute. It escalated when her eldest son accidentally shot one of their family members in the hand and in turn one of their family members shot at the applicant’s father.
The mother described how elders mediated the dispute in the 1990s to avoid further violence, but the applicant’s family continued litigating the property dispute through the courts.
The applicant’s evidence aligned with this, saying that the dispute was settled when he was young but then reignited in 2022 with the attack on the applicant’s brother in Melbourne. He said that when he was young, the boys from the two families would fight in the street with fists and sticks. He said that he was never involved as he was too young, and his mother kept him away.
The applicant claimed that the dispute had settled because no one from his family was in Lebanon. I put to him that he was in his twenties when he was still living in Lebanon and asked how was it that he had managed to avoid the dispute. He said that he stayed away from them most of the time. He also noted that his mother or someone had negotiated with the [G] family.
The applicant provided evidence of his brother being attacked in Melbourne by three men in April 2022. They are claimed to be from the [G] family. I noted that he has a big family in Australia and asked why his brother was specifically targeted. The applicant said that he doesn’t know exactly and believes it to be about money and land in Lebanon. He said that the [G] family had taken over their land in Lebanon.
I read from a statement to the police provided by the applicant to the Tribunal that was written by his brother who was attacked. It states: ‘I am not scared of these males. I don’t believe an intervention order is necessary.’ I asked what this meant. He said that he doesn’t know what his brother wrote. Then he added that the same brother told him that if any Lebanese come to the detention centre that he doesn’t get involved with them. I asked whether it could be that his brother wrote that because they are not a threat. He said that they have a big family, they are always threatening them.
The applicant stated that someone had attacked him while in the detention centre. He said that it occurred while he was sleeping. The man was [Nationality]. He said that he required an operation following the attack and that he requires a further operation. The applicant said that he doesn’t know the reason for the attack but said that maybe people in the detention centre know that he is running away from Hezbollah and as [Country] supports Hezbollah the man targeted him.
The applicant’s mother wrote that there are no male members of their family living in Lebanon and as such the applicant’s return would open opportunities for the [G] family to obtain leverage over them. The applicant’s eldest brother also stated that there are no males from the father’s side remaining in Lebanon. He also claims that he has heard of threats being sent to his family following the fight with his other brother.
[Mr H], the applicant’s brother who was attacked appeared as a witness. He explained that in Lebanese family disputes if the person that is targeted is beyond their reach, then they go after another person in the family. He fears that the dispute with the [G] family will be focused on the applicant as there is no other [family] member. The dispute is over land but exacerbated due to intergenerational violence. I asked what precipitated the 2022 attack. He said that it resumed because he had previously fought with them when he was young and that it was opportunistic when they had crossed paths.
The witness had another confrontation with the [G] family in Sydney in 2023 while attending a Lebanese function.
[Mr H] explained that he was imprisoned in Lebanon before coming to Australia in 2007, a situation that arose from retribution that involved his father-in-law killing a [G] family member.
Adding to the complexity of the family dispute, the applicant’s sisters married into the [I] family. The father of one of the husbands was involved in killing a [G] family member. As a result, the sister and her husband ran away from the village and came to Australia.
A member of the [G] family is claimed to be in the Lebanese army and influential. They are also claimed to have separate connections to Hezbollah.
I asked [Mr H] if the applicant could get protection under the [I] family. He said that its not his family, and so its not acceptable. He said that there would still be danger to him. He claimed that his brother is naïve and that he would do what anyone in the [I] family would ask him to do. He fears that the applicant would get caught up in activities that would get him into trouble.
The witness, [Mr H], had returned to Lebanon in 2024. Nothing happened to him. He said that he only went for a few weeks attending his Australian niece’s wedding party and then he returned.
Regarding [Mr D], the witness said that as the Lebanese economy diminished over the years, Hezbollah grew in strength. He said that [Mr D] rose through the criminal networks involved in drugs and stolen cars based out of south Beirut. The applicant’s family know of him because he was originally from their village. He said that many of [Mr D]’s people are from their village. He believes that [Mr D] would kill the applicant if someone gave him money. He claimed that [Mr D] violently killed an entire family in their village. He said that [Mr D]’s aunt married one of the [G] family members and so there is a connection between the two.
New evidence
Following the second hearing the applicant provided new evidence.
This evidence comprised of three allegedly official documents:
a.Arrest warrant in absentia dated [January] 2015. The applicant is named. Issued by ‘the investigating judge in the North’. Type of crime was listed as ‘attempted murder.’
b.Arrest warrant dated [January] 2017. The applicant is named. The arrest warrant is on the basis of an accusation of ‘attempted murder’. There is a further ‘description’ which states, ‘suspended in absentia / [12]/2014.’
c.Summary of judgement dated [April] 2017. The applicant is named. He is convicted of ‘attempted intentional murder’. The penalty is detailed as ‘Hard labour [in prison] for a duration of seven and a half years, deprivation of the right to carry arms for fifteen years, and ordering him to surrender the weapon used within one month, with a fine of one million five hundred thousand Lebanese Lira in case of non-compliance, in accordance with the provisions of the articles 547/201, from the penal code.’
The original documents were not provided, instead photos of the documents contained in a two ringed binder were provided.
The relevance of these documents is claimed to be proof that there is a conspiracy against the applicant as the dates suggest that the applicant was convicted of a crime while he was in immigration detention, a claim that is engaged with further below.
The way these documents were obtained was conveyed by the representative in his submission:
In the process of organising the requested information provided above, new information has come to the attention of the applicant that gives cause for an additional well-founded fear of persecution in the event of being returned to Lebanon. After hearing the Senior Member’s comments suggesting the possibility that Beirut (or another area in Lebanon) might be a place where the applicant can be reasonably expected to relocate to, the applicant’s family began attempts to obtain information and documentation to support the argument that relocation is not feasible. When conducting searches for information to support the applicant’s claims, their searches came with the shocking discovery of three arrest warrants in the applicant’s name.
The applicant’s brother, [Mr H], contacted someone known to him in Lebanon to obtain the official documentation related to this. The friend contacted the [Municipality] police station and spoke to an individual named ‘[Mr J]’. The charging documents were the sent to [Mr H], and these are accompanied with this submission.
It is not clear how the family managed to stumble across these documents while researching the feasibility of relocation, two seemingly distinct questions. A third hearing was arranged to ask this question among others.
At this hearing the applicant’s brother, [Mr H], provided evidence about how he obtained the documents.
He said that after the previous hearing, he began searching what would happen to his brother if he returned. He said that his search was general to see what dangers his brother faces. He said that he contacted his wife’s brother who is now living in Australia. He asked if he knew anyone who could check if there is anything on him. I asked why he would ask that question. [Mr H] replied that one has to be very careful. I noted that hundreds of thousands of people travel to Lebanon every year and asked if he thought they all call officials to check. He responded that because of the way the applicant left, anything could have happened in the interim. He said that such things happen all the time in Lebanon. He said that it happens in situations similar to what his brother experienced when they are fleeing other circumstances. He said that this was a particular concern for his brother because those he fled from were connected to the government.
One person his brother-in-law asked was a government official. He asked through his brother-in-law to find out if there was anything pending against his brother. The government official searched and came across the documents provided. It is claimed that they were then sent to the brother-in-law by WhatsApp and then the brother-in-law forwarded them to [Mr H]. Screenshots between the brother-in-law and the government officials were provided to the Tribunal as were the screenshots of the document being forwarded to the brother from the brother-in-law.
I noted to the applicant that the possibilities that I was considering included that the documents are fraudulent, and that they are not in the Lebanese criminal justice system; that the documents are in the Lebanese system, but they were fraudulently inserted without any broader actions having being undertaken; or lastly that the case has worked its ways through the criminal system legitimately but based on an original corrupt act, as is being claimed.
When I asked the applicant if the documentation appears legitimate the applicant said that it looks normal to him. He said that their criminal records system is not computerised.
I asked why they had not retained a lawyer in Lebanon to disprove the allegations by providing evidence that the applicant was in Australian detention at the time. The applicant said that he didn’t understand what options he had. I asked the applicant and witness whether anyone in the family had thought of finding a lawyer to represent him in Lebanon. The applicant’s representative suggested that the absurdity of having a document indicating he was guilty of committing a crime in Lebanon while in immigration detention in Australia being in the Lebanese system would suggest that the system is so corrupt that logic and argument would not be able to change the situation.
I put to the witness, with the applicant present, that it seemed implausible that someone would be motivated to manipulate the Lebanese legal system years after what appears to be a minor infraction by the applicant and even more implausible because he had already left Lebanon. The witness explained that Hezbollah can do what it wants.
It was confirmed by those present at the third hearing that no one in their family had attempted to contact a lawyer to try to resolve this issue. The witness claimed that he didn’t because he didn’t know anyone there. The applicant said that he thinks that as the documents come from the court it is a decision that has been made and as such could not be undone. I noted that he had qualified his explanation that he didn’t exactly know and as such I was unclear as to why he hadn’t tried to find clarity and certainty. I noted that this leads to questions of credibility and whether the documents are bogus documents.
To test the veracity of these documents, the Tribunal requested that the applicant obtain a police clearance certificate from Lebanon with the intention for the Tribunal to cross check whether the conviction is recorded in their system.
Concurrently, the Tribunal put the applicant on notice that it will seek to have the documents verified through Departmental processes. Following the hearing the Document Examination Unit reviewed the documents and found that due to the documents being photographs it could not assess them. The Tribunal then sought through Tribunal Liaison in the Department of Home Affairs that the Australia Embassy in Beirut confirm with the authorities regarding the applicant’s conviction.
Despite repeated contact between the Tribunal and the Departmental Liaison with regards to information on whether Post would be able to check the documents, no response of substance was received.
The applicant’s efforts yielded the same documents that claim to show that he has been convicted of intentional attempted murder, but this time stamped by officials of the Lebanese Embassy. I noted to the applicant through correspondence that the Embassy stamps explicitly state, 'with no responsibility relating to the content of this document'. As such I place no weight on the documents being stamped by an embassy official.
The applicant subsequently provided further documentation by way of an email submission dated 11 April 2025. This email contained three documents:
a.A power of attorney given by the applicant to a Lebanese lawyer dated 6 March 2025
b.A letter from the Lebanese lawyer stating that ‘it is not possible to obtain a criminal record certificate for [the applicant] as he is currently wanted by the Lebanese authorities on charges of attempted murder. A judgement in absentia has been issued against him in this matter. However, this may be substituted with a notice issued by the Directorate General of General Security, as [the applicant] is residing outside the Lebanese territory and this matter falls within their jurisdiction.’ This letter also stated that the lawyer is sending a ‘certified true copy of the judgement’ against the applicant. No such document was provided.
c.The ‘official General Security bulletin’ which presumably is the same as the above mentioned ‘notice issued by the Directorate General of General Security.’
The General Security bulletin is a response to a request for a ‘prosecution certificate’ in which a summary of the procedural history is listed. The document is signed by [Mr K], [Job title], [Government agency]. The document contains the following:
A notice issued [in 12]/2014 ordering the arrest of the Lebanese citizen [the applicant], mother's name [Ms L]. born in [Year], an arrest warrant in absentia being issued against him by the Investigation Department in the North, documents [number 1] dated [12]/2014, for attempted murder.
A telephone call made [in 01]/2015 upon the request of the investigation Department by telegram [number 2] dated [01]/2015 ordering the arrest of the Lebanese citizen [the applicant], mothers name [Ms L], born in [Year], an arrest warrant being issued against him by the investigating judge in the North under [number 3] [in 12]/2014 for attempted murder.
A telephone call made [in 01]/2017 upon the request of the investigation Department by telegram [number 4] dated [01]/2017, joined to the telegram of [Municipality] under [number 5] [in 01]/2017 ordering the arrest of the Lebanese citizen [the applicant], mother's name [Ms L], born in [Year], based on an arrest warrant issued by the Indictment Chamber in the North under [number 6] dated [04]/2016 for attempted murder.
A notice issued [in 05]/2017 ordering the arrest of the Lebanese citizen [the applicant], mother's name [Ms L], born in [Year], based on a summary of a ruling issued by the Criminal Court in the North, Case [number 7], Public Prosecution [number 8], Judgement [number 9] dated [04]/2017, for intentional attempted murder.
A telephone call made [in 05]/2017 upon the request of the investigation Department by telegram [number 10] dated [05]/2017, joined to the telegram of [Municipality] [number 11] dated [05]/2017 ordering the arrest of the Lebanese citizen [the applicant], mother's name [Ms L], born in [Year] based on a summary of a ruling rendered by the Criminal Court of the North under [number 12] on [in 04]/2017 for attempted murder.
The documents and the translations were sent in a single file to the applicant’s representative in Australia.
The documents received from the Lebanese lawyer generally align with the documents received through the brother-in-law.
Included in the Lebanese lawyer’s correspondence was reference to a certified verdict and judgement summary. This was not included in the original package sent by the Lebanese lawyer and as such was requested by the Tribunal. What was subsequently received was a ‘Judgement Summary’ issued by the Criminal Court in Northern Lebanon. The judgement was dated [April] 2017. It noted that the defendant was ‘detained in absentia [in] December], 2014. The court appointed a ‘legal guardian to manage his assets for the duration of the sentence.’
The Tribunal sent a follow up letter:
The member has reviewed the documentation that has been provided regarding the applicant's conviction in Lebanon but notes that in no document does it state the date of the alleged crime as being after the applicant left Lebanon, as has been claimed at the hearing. Instead, the December 2014 date pertains to the decision to detain the applicant in absentia. Without clarity, or further information about time limitations in determining the detention of someone in absentia, the member cannot accept that the conviction is contrived because of a decision made by a government body in 2014 when the applicant was in immigration detention. The member will provide two weeks for written submissions.
In a response dated 2 May 2025 the representative noted that every effort was made to obtain the documentation, but they were unable to obtain any documents that explicitly stated the date of the alleged crime. The representative notes that the applicant left Lebanon on his own passport and as such, if he had been wanted by the authorities he would have been stopped.
In support of this view, the representative references a DFAT report on this:
5.21 Lebanese border authorities maintain a database of ‘border alerts’ or ‘stop orders’, against which they check all travellers’ names on arrival and departure. Border alerts are raised when there are pending court cases or warrants for those wanted for, or convicted of, offences in Lebanon.
…
5.25 DFAT assesses that the effectiveness of the border alert database would make it difficult for a person under a stop order to enter or exit the country through the international airport or port without being stopped and detained. It may, however, be possible to leave Lebanon via a land crossing point without coming to official attention.
This raises the obvious question, if there are databases as described above then the records must be kept electronically and as such the applicant’s claims that they only use paper files appears to be nonsense, but then I note that the same DFAT report states, ‘Most documents are handwritten on non-secure paper.’[4] Unfortunately, such vagaries are reflective of the situation in Lebanon.
[4] DFAT Country Information Report Lebanon – JUNE 2023 at [5.46]
It is possible that the applicant committed the crime and left immediately after, before any investigation was able to be undertaken and as such any stop order or border alert to be created. It is also possible that the applicant’s claims of the entire situation being fabricated is possible. There is no basis to make a finding on one or the other speculative scenario. The only solution is for the Department to further investigate these documents but as noted, this appears to be highly unlikely to occur in any reasonable timeframe. As such I have decided to proceed on the basis of the evidence before me.
FINDINGS
I accept that the applicant provided humanitarian assistance to Syrian refugees as a casual employee for [Mr B]. I also accept that there is a perception that this work was political and not just humanitarian.
While it may seem counter-intuitive that humanitarian goods could be perceived to be political, it is not known to the applicant nor to this Tribunal who the recipients were. It is plausible that the humanitarian goods were being diverted to certain groups and as such being a part of the supply chain made the applicant’s actions appear to be political. Once there is the appearance of aligning against one group then it becomes plausible that another designates any support as a legitimate threat.
I also accept the evidence provided by the applicant and his family about the ongoing interest in the applicant including through the mother, while she was living in Lebanon, and during the eldest brother’s visit to Lebanon, when people were asking about the applicant. There is no basis to doubt their credibility as witnesses.
I also accept that this action came to the attention of [Mr D] and that [Mr D] made the threats and had the interest in the applicant as described above, namely, to prove himself to Hezbollah.
100. The media report provided to the Tribunal relating to the murder of [Mr E], the Christian leader, noted that [Mr D] is from Akkar, the same area as the applicant. This lends weight to the claims that he is known to the family and that the interactions described are plausible.
101. I accept that the [Mr D], named in the [Mr E] media article, is the same man described by the applicant through submissions and that he is a thug, involved in drug running and that he is boastful of his illicit activities on social media. While the situation in Lebanon and Syria has seen considerable changes including the fall of Bashar al-Assad, it would not be appropriate to assume that [Mr D]’s power has diminished. He could have simply pivoted to a new line of criminal activity or turned to serve new patrons.
102. I note that of the social media posts available to the Tribunal none are recent, which could mean that [Mr D] has been killed, or alternatively that with the downfall of the Assad regime he lost his protection and has decided that it would be prudent that he adopts a more lowkey and more ‘Islamic’ profile to align with the new leadership in Damascus. It could equally be that he has simply tired of social media or thought better about posting about his illicit activities. Without further information, it would be speculative to make anything of these observations.
103. Similarly, it would be speculative to presume that a criminal who had managed to endear himself to the Assad regime is unable to pivot to the new power structures of Syria.
104. With regards to the [G] family. I accept that there is a long running feud between the two families. I accept this due to the consistency of the information provided between witnesses and across time but also, unfortunately, as violent inter-generational family disputes are known to occur in Lebanon.[5]
[5] It appears that the original genesis of the feud is land but subsequently it has evolved into a tit-for-tat of revenge attacks, efforts to maintain honour and opportunistic land grabs.
106. I now turn my mind to consider the newly submitted information pertaining to an alleged attempted murder by the applicant. On the face of the material available to the Tribunal this series of events appears absurdly convenient. Following ten years from the date of the first police action claimed to have been undertaken by the Lebanese authorities, a period that included numerous court proceedings in Lebanon, correspondences and calls by Lebanese authorities, the applicant claims to have only recently discovered the existence of the conviction. He is claiming that at no stage through this process anyone known to him was notified or at least no one conveyed their knowledge of this to him or his family.
107. Furthermore, at no stage did anyone of the family think to do a check to see if there were any pending criminal charges or conviction as this is apparently normal, according to one brother. This is despite multiple engagements with professional representatives, Australian government interviews and two hearings by this Tribunal.
108. Then the discovery came fortuitously by researching the impact of relocation and the brother asking someone who knew someone, and that this individual came across some hand-written documents that indicate the applicant was convicted in absentia for intentional attempted murder. What I am being asked to believe is almost comical.
109. While it is so convenient to almost be implausible, there is no evidence to refute it other than what appears to be a highly unlikely series of events. The documents from the Lebanese lawyer tip the balance.
110. Admittedly, it is possible that having obtained bogus documents someone associated with the applicant then sought another set of bogus documents this time purporting to be from a Lebanese lawyer. But to go down this path without any evidentiary support other than coincidence and incredulity would be wrong.
111. I could ask Post to verify the lawyer’s documentation but noting their extreme tardiness in responding to a request to simply explain whether and how they can verify a criminal conviction, I am reluctant to hold up this process noting the Tribunal’s objectives, that the case has been working its way through the courts for a decade while the applicant has remained in immigration detention and that the applicant will most likely be required to progress through another Departmental stage that may include the requirement to provide a police clearance certificate.
112. As such, the scenario I am accepting is that someone in Lebanon leveraged the system to charge and convict the applicant in absentia despite not physically being present in Lebanon. This would seem to be an extraordinary effort to undertake against someone who has done what has been claimed to have occurred, but there are plausible scenarios. For example, the [G] family may have pre-emptively moved against the applicant and arranged to have him lose his ability to re-claim the family land noting the conviction included assigning someone to manage his assets. Another scenario is that the applicant, having been identified by Hezbollah and [Mr D] as an unfriendly person, became a scapegoat for someone else’s unrelated murder. While these scenarios are unlikely and even outlandish, that they are plausible in the context of Lebanon means that it remains a possibility.
113. As such, I accept that the applicant has been convicted as detailed above and faces being arrested if not upon arrival, then shortly thereafter.
Reasons
114. The applicant is from a small town in northern Lebanon. His return would be immediately known not only because of who he is but because he is returning from Australia after being abroad for over a decade. News would travel fast. While time can weaken and dissipate memories, in small communities such as the applicant’s home village, memories of individuals are not quickly forgotten. Once aspersions are made and family honour tarnished, in the context of Lebanon, memories won’t fade easily. This is the nature of small communities.
115. Those who knew him before would learn of his return, including [Mr D], as well as those with or associated with Hezbollah who were also from the area and knew of the group’s reasons for their interest in the applicant more than ten years ago.
116. I note that the Lebanese government has in its recent past had problems with maintaining a semblance of a monopoly of the use of force. In more recent months the ongoing conflict with Israel has created further weakness. The Israeli attacks have also weakened Hezbollah[6] leadership and assets, particularly in the south but also, albeit less so, through attacks in the north.[7] While individual Hezbollah members from the applicant’s village may be distracted by other more pressing matters such as surviving Israeli assassination attempts, this does not mean that they would turn a blind eye to the applicant’s return. It may mean that their motivation to act will be reduced as they won’t have a leadership structure in place to seek orders from or the motivation to expend resources on a minor misdeed from over a decade ago makes it a lower priority. Alternatively, it could be that the lawlessness opens opportunities for matters to be settled more freely and without consequences. While the former is more likely the case for the risks the applicant faces from Hezbollah, the latter is more likely for the risks arising from [Mr D].
[6] [Mr D] is someone who I accept has targeted the higher echelons of Lebanese society including potentially being involved in the assassination of a senior Lebanese Christian (or at least not seeking to distance himself from such accusations). This does not mean that he wouldn’t have the time, interest, or resources to deal with personal slights from a ‘nobody’, seek vengeance or want to prove himself by ordering the applicant to be harmed. The mayhem in Lebanon affords people like [Mr D] this opportunity and as noted by one of the brothers at the hearing, taking a life in Lebanon is now cheap. In addition, all it would take is an order from him rather than physically requiring [Mr D] to involve himself.
118. It was put to the Tribunal that [Mr D]’s motivation was to prove his worth to Hezbollah and that is why he would go after the applicant. It was also put to the Tribunal that [Mr D] had perceived a personal slight arising from the applicant’s behaviour but nothing more was provided when asked about this.
119. In other words, it is claimed that [Mr D]’s ego, in a Western cultural context, or his honour in the Lebanese context was threatened by the applicant. In normal times, the risks to [Mr D] in following through with such animosity relative to the reward of eliminating a ‘nobody’ would suggest to me that the applicant would not face any harm, but in the current situation in Lebanon, I find that he will, but not directly.
120. I find that [Mr D] is not actively searching for the applicant with a desire to eliminate him. There is insufficient motivation, even considering the clearly lower moral standards of the man, to suggest that the animosity he harbours from the past would motivate him to commit serious harm on the applicant.
121. I find instead that the animosity would lead to an alternative scenario. As they cross paths or word gets around of the applicant’s return, [Mr D] would be reminded of the applicant and would know of him as someone whom he dislikes and importantly is now alone.
122. Without family to protect him or even help provide for him so that he is not dependent upon others, the applicant would be prone to pressure from [Mr D] (or Hezbollah) and others to do things. It could be that the applicant is required by [Mr D] to transport drugs or participate in enforcement duties which in turn would lead to some repercussions, some confrontation or some brush with the law. The result into the reasonably foreseeable future would be some form of serious harm. In this scenario, it’s not that the harm will come about directly at the hands of [Mr D] but rather indirectly through coercion.
123. For these reasons, I find that the applicant’s return to his village in northern Lebanon will lead to him facing a real chance of serious harm.
124. In considering the essential and significant reason for the harm the applicant faces and specifically whether it is for the reason of race, religion, nationality, political opinion or membership of a particular social group, on the face of the material, it appears to be associated with his political views.
125. While the immediate action that will lead to the applicant facing harm is [Mr D]’s animosity, the source of this animosity, on the evidence available to me, begins in 2012 with the applicant helping [Mr B].
126. As the applicant supported [Mr B] for an income, as a casual employee, and not for some political motivation, I find that the harm that springs from this cannot be construed as being for reasons of his political opinion. Instead, I find that the applicant has been imputed with a political opinion. While [Mr D] may be remembering the applicant as having slighted him or sees him as a tool to be used, the genesis of this perception that places the applicant at risk is that he was originally imputed with the opinion of being a supporter of the former Assad regime which in turn led to Hezbollah wanting him which then led to [Mr D] identifying him as a target to bolster his profile. As such, I find that ‘political opinion’ is the essential and significant reason for the harm (s 5J(4)(a)).
127. In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I note that interest in the applicant by [Mr D] continued after he departed, noting the enquiries about him, and as such find that it is systematic and targeted.
128. As noted above, the Lebanese state does not have a monopoly of the use of force, it is a fractured, if not a failed state. It cannot extend protection to the applicant, especially from threats such as [Mr D]. For this reason, I find that the applicant cannot seek protection from the state (5J(2)).
129. I also find that the applicant cannot modify his behaviour as it is the actions that he has already undertaken that are known to [Mr D] that will lead him to face serious harm (s 5J(3)).
130. As such, I now turn my mind to consider whether the applicant can relocate (s 5J(1)(c)).
Relocation
131. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
132. In considering all areas of Lebanon, I turn my mind to Beirut and whether the applicant’s move to Beirut would lead him to face less than a real chance of serious harm.
133. If the applicant were to return to Beirut, would [Mr D] learn into the reasonably foreseeable future that he had arrived? I find that he would not. While [Mr D]’s interest in the applicant is real, it does not extend to expending resources in searching for people he has some minor animosity towards and are living in the capital city, nor does he have informants throughout the country who would know the applicant and know to report to [Mr D] that the applicant had arrived in Lebanon.
134. It is possible that had the applicant family in Beirut and family in Akkar, word would get around, but the applicant’s family were adamant that they didn’t have any relatives anywhere in Lebanon. Counter-intuitively, this strengthens the view that he would be safe in Beirut.
135. With regards to Hezbollah. The applicant was known for having participated in aid deliveries over a decade ago in a small village in the north of the country. There is no evidence to suggest that there is some record of the applicant within Hezbollah, nor is there a logical basis to believe that there would be considering the applicant’s low-level profile and circumstances. Furthermore, noting the decimated leadership of Hezbollah and its other priorities, I find that the prior confrontation with Hezbollah will not be known to any Hezbollah operatives in Beirut.
136. But as noted, the applicant is wanted by the Lebanese authorities after having been convicted by a court for intentional attempted murder. I have found that the documents provided to this Tribunal are legitimate and as such the applicant faces harm regardless of where he relocates as the entire state of Lebanon will be on notice to arrest him.
137. If the applicant is arrested and imprisoned, he will face a loss of liberty for up to seven years which I am satisfied amounts to serious harm. There is no clarity on who is behind the false record, and as such it becomes a speculative but necessary exercise to consider for the reason of establishing whether there is a Refugee nexus. I dismiss [Mr D] turning to the courts to chase the applicant for the reason that he is a thug that operates outside the law and his animosity towards the applicant was limited. I also dismiss Hezbollah fabricating a court process as they have no need to nor any motivation to. They could detain him and put him through their justice system without any need to turn to the Lebanese government system.
138. I find that it is the [G] family who is behind the fabricated case. In this situation the motivation is not for reasons of race, religion, nationality, political opinion or even membership of a particular social group, noting the nuances of s 5K which requires the original trigger for the family feud to be for a Refugee nexus reason (the original trigger for the intergenerational fighting appears to be property disputes). Having to reach some conclusion on the limited evidence before me, I find that the [G] family is behind this action and that there is no Refugee nexus and as such the applicant does not meet the criteria in s 5J(1)(a).
139. As such, I find that the real chance of persecution does not relate to all areas of the receiving country. In turn I find that the applicant does not meet the criteria of s 36(2)(a).
140. I now turn my mind to consider Complementary Protection.
141. In considering whether the applicant faces a real risk of significant harm in Beirut, and having found that there is a real risk that the applicant will be detained by the Lebanese authorities arising from the court conviction, I now turn my mind to consider whether the applicant faces a real risk of significant harm in Lebanon’s prisons.
142. A type of harm the applicant faces is the loss of liberty, but such harm does not explicitly fall within the explicit range of types of significant harm. Instead, I turn my mind to consider the definition of ‘cruel treatment’:
s 36(2A)(d). ‘Cruel or inhuman treatment or punishment’ is defined in s 5(1) of the Act as 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 [ICCPR]; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the [ICCPR].
143. The applicant being denied his liberty amounts to severe pain and/or suffering, intentionally inflicted but it does not arise from a lawful sanction as he will be detained for a crime that I have found he did not commit. It is akin to extrajudicial action in that there is no legitimate legal process. I also find that the applicant cannot seek protection from the state as the state is the persecutor, and I find that the harm the applicant faces is not harm faced by the population generally.
144. As such I accept that the applicant faces the statutory definition of significant harm. I find that the applicant faces a real risk of significant harm in the form of cruel treatment throughout Lebanon as a necessary and foreseeable risk of removal.
Conclusion
145. For the above reasons I am not satisfied that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
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). I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
147. I have also considered whether according to s 36(3) the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Lebanon such as the applicant have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
148. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of hearings: 6 December 2024, 17 December 2024 and 28 February 2025
Representative: Mr Emad Khraim
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.
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December 2015
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