2501227 (Refugee)
[2025] ARTA 1393
•23 May 2025
2501227 (REFUGEE) [2025] ARTA 1393 (23 MAY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Mohammed Al-Fadhli (LPN: 5514051)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2501227
Tribunal:General Member S Durvasula
Date:23 May 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 23 May 2025 at 3:52pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – particular social group – criminal deportee – substantial criminal record – imprisonment – no family support – economic conditions – employment – security crisis in Lebanon – mental health issues – Australian citizen children – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 367, 499, 501
Migration Regulations 1994, Schedule 2CASES
Chan v MIEA (1989) 169 CLR 379
GLD18 v MHA [2020] FCAFC 2
MIAC v MZYHS & Anor [2011] FCA 53
MIAC v SZQRB (2013) 210 FCR 505
MZWZB v MIMA [2006] FMCAA 4211
MZXTT v MIAC [2008] FMCA 1007
SZRSN v MIAC [2013] FCA 751Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 December 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Lebanon, applied for the visa on 14 November 2024. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant appeared before the Tribunal on 11 April 2025 and 15 April 2025 via video to give evidence and present arguments. The hearing on 11 April 2025 was brief and was adjourned to arrange an interpreter for the applicant. The substantive hearing was held on 15 April 2025 and was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicant was represented in relation to the review.
BACKGROUND
Evidence before the Department
The applicant is [an age]-year-old national of Lebanon. In his protection visa application, he provides the following biographical information:
· He was born in [Village 1] (also spelt [name]) in North Lebanon.
· His relationship status is ‘separated’.
· He has two children who are Australian citizens and live with their mother - [ages and genders deleted].
· In Lebanon he has the following family members – [number of siblings]. He has contact with them by phone, 2 or 3 times a week.
· In Lebanon, he lived in [Village 1] from his birth until he came to Australia in 2006.
· He can speak, read and write Arabic.
· His religion is Sunni Muslim.
· He completed high school when he was [age] years old.
· In Lebanon he worked as [an occupation 1] from [specified year] to 2006 in [Village 1].
· After he came to Australia, he was also employed as [an occupation 1] from 2006 to 2019. He also ran his own [occupation 1] business in Sydney for 5 years.
· He has not been convicted of an offence in any country.
The applicant’s immigration history is set out in the delegate’s decision record, Departmental movement records and the Administrative Appeals Tribunal (AAT) decision of [Decision 1] (‘the AAT decision’).
The applicant first arrived in Australia [in] June 2006 on a Subclass 309 Partner visa, sponsored by his now estranged wife, who is an Australian citizen. There are 2 children from this relationship. The applicant was granted a Subclass 100 partner visa on 14 January 2008 and became an Australian permanent resident. He was granted a Subclass 155 Resident Return visa on 10 September 2013.
On 29 October 2020, this visa was cancelled under s 501(3A) of the Act on the basis that the applicant had a substantial criminal record and was serving a sentence for imprisonment. On 20 July 2021, the Minister’s delegate decided not to revoke the cancellation. On 12 October 2021, the AAT affirmed the decision not to revoke the cancellation. The applicant applied for judicial review. [In] April 2022, the Federal Court dismissed the application.[1] The applicant appealed that decision. [In] November 2023, the appeal was dismissed by the Full Federal Court.[2] The applicant applied for a protection visa on 14 November 2024.
[1] [Decision 1]
[2] [Decision 1]
The delegate’s decision record and the AAT decision describe the nature of the applicant’s criminal offences in Australia.[3] The applicant was convicted of 3 offences that occurred in 2019:
· [An] Offence for which he was sentenced to [a term of] imprisonment. The offence was committed [in] November 2019 in [Town 1], Western Australia when the applicant [details deleted]. The applicant was convicted and sentenced for this offence [in] September 2020.
· [An] Offence for which he received a fine and a spent conviction.
· [An] Offence for which he received a fine and a spent conviction.
[3] [Decision 1]
The applicant’s protection visa application states that he served his sentence at [a named prison in] Western Australia. He was transferred to [a named] Detention Centre [in] March 2021. He then went to [a second] Immigration Detention. He is currently being held in [a third] Detention Centre.
Applicant’s protection visa claims
The applicant’s protection visa claims are set out in submissions provided by his previous representative, a registered migration agent, dated 1 November 2024 and 26 November 2024. These are summarised below.
· Isolation and lack of family support
The applicant has lived in Australia for many years and lacks immediate family ties in Lebanon. His mother is deceased, and his father is elderly and unable to provide support. After years abroad, reintegrating into Lebanese society would be difficult due to cultural differences and potential language barriers, as he is more accustomed to Australian customs and the English language.· Discrimination Due to Criminal History
Lebanese society places a strong emphasis on honour and reputation. Individuals with criminal records, especially those deported from Western countries, are often stigmatised and marginalised.· The applicant’s criminal history could bring dishonour to his extended family, leading to further isolation and strained familial relationships. Employers conduct background checks and are hesitant to hire individuals with criminal histories.
· With the economy in decline, sectors that might be more accepting of ex-offenders, such as construction or manual labour, are saturated and offer minimal opportunities. Law enforcement agencies may monitor and frequently question criminal deportees, leading to harassment and intimidation.
· Lebanese authorities may categorise criminal deportees as potential criminals or societal threats, leading to increased scrutiny. The applicant claims he will be detained without formal charges or access to legal representation and exposed to abuse during detention.
· Extremist militant groups may attempt to forcibly recruit him due to his vulnerable position.
· Economic hardship
Given his criminal record and the economic crisis, the applicant be unable to secure lawful employment, leading to financial instability.· Lebanon does not have robust social security programs to assist unemployed individuals. Without income, he would be unable to afford housing, food, or healthcare.
· The applicant fears he will face economic destitution without housing or income.
· Mental health
Continuous exposure to violence and insecurity can lead to severe mental health conditions. Lebanon has limited resources for mental health support, especially for individuals without financial means.· The cumulative effect of persecution, isolation, and hardship could lead to severe depression and anxiety. Extreme circumstances may increase the risk of self-harm or suicidal ideation.
· Security situation:
Lebanon is experiencing intensified military activities, particularly in the southern regions and Beirut. The escalation includes airstrikes, ground clashes, and frequent bombings, which pose severe risks to civilian lives.· Internal displacement has led to overcrowding in safer regions, stretching resources thin and increasing competition for jobs and housing.
· The submission refers to widespread protests, general civil unrest, the presence of extremist groups such as Hezbollah and other militant organisations that contributes to instability.
· Relationship with ex-partner and child
The applicant has maintained a close relationship with his minor child. He has contributed financially to his child's needs, including education and healthcare expenses. Deportation would disrupt this relationship, causing emotional distress for both parties.· It is not practical for the applicant to relocate within Lebanon due to security threats, lack of support from family and friends and societal prejudice against ‘criminal deportees’.
· The cumulative risks —security threats, economic hardship, social isolation, and the high likelihood of persecution due to his criminal history—demonstrate that the applicant faces significant dangers if returned to Lebanon.
· The applicant’s representative provided country information which relates generally to the security and economic situation in Lebanon. They also provided a number of academic studies and reports relating to the impact on those with criminal records. Most of these articles relate to studies conducted in Australia, the United States and Europe.
Evidence before the Tribunal
Pre-hearing submission
On 10 April 2025, the Tribunal received notice that the applicant had appointed a new legal representative. The new representative provided a submission which is summarised below:
The applicant claims complementary protection – that there is a real risk of significant harm if he is removed from Australia to Lebanon, namely:
· persecution or significant harm due to his profile as a prison release and deportee
· arbitrary deprivation of life or cruel, inhuman or degrading treatment due to his social status, mental health vulnerabilities and lack of familial support
· inability to access essential services, employment or safe accommodation.
If the applicant returned to Lebanon, he would be left without family support. His hometown has entirely ostracised him. His ex-wife lives in the same village and has turned the extended family against him. His siblings in Lebanon are unable or unwilling to support him. His sister is restricted by her husband and his brother is estranged. He would face hostility in his hometown. These circumstances make him distinguishable from the general population in Lebanon.
His profile as a former detainee with a history of drug use and mental illness will make him socially unacceptable. Returning to Lebanon would risk deterioration in his mental health without access to proper treatment or support. He has 2 children and one child is a minor. The applicant’s removal would impact his own mental health and the welfare and wellbeing of his child.
Psychologist report
The Tribunal also received a report from [Psychologist A], a registered psychologist, dated 9 April 2025. In his report, [Psychologist A] states he assessed the applicant on one occasion over a 2 hour interview by video on 9 April 2025, using the Structured Clinical Interview for DSM-V (SCID5). He concludes that the applicant presents with severe post-traumatic stress disorder (PTSD), ‘directly linked to his history of torture and trauma experienced in Lebanon’. He states that the applicant has also been exhibiting Generalised Anxiety Disorder for approximately 5 years and symptoms of PTSD for most of his life.
The report also raises additional information that was not in the applicant’s protection visa application or statement of claims. These were reported by the applicant at his psychological assessment:
· The applicant completed [number] years of schooling and began work at a local [occupation 1] shop at the age of [age].
· In [year] (when he was [age] years old), the applicant and his friends began purchasing and repairing motor bikes. The government deemed that their work was illegitimate and arrested them for theft. The applicant was held in an adult gaol for [period]. The applicant was bullied, harassed and assaulted by other inmates and tortured.
· He was then moved into youth detention for [period] before being released on bail. Eight years later, he was sentenced to [period] imprisonment after completing mandatory military service.
· After coming to Australia, he became addicted to gambling.
· In 2014, he moved to Western Australia and began using [a named drug].
· In 2019, he was admitted into [Hospital 1] into the mental health facility following an exacerbation of his poor mental health. He claims he was scheduled.
Tribunal hearing – 15 April 2025
Biographical information
At the hearing, the applicant provided additional biographical information. He confirmed that he was born and grew up in [Village 1] in the Miniyeh-Danniyeh district of North Lebanon. It is a small village, about [distance] from Tripoli. He lived there the whole time he was in Lebanon, in his parents’ home and grandfather’s home.
The applicant stated that he only completed [number] years of schooling and left school at [age]. He can speak and read Arabic and English, but he cannot write very well in Arabic. The Tribunal noted that his protection visa application stated that he had completed high school. The applicant stated that maybe there was a mistake in the application.
After leaving school, he worked as [occupation 1] in his village. He has done this work all his life. In Lebanon, he worked for himself for a period and mostly worked for other people. It was not a proper job and he worked ‘on and off’. In Australia, he also worked as [an occupation 1] and he also set up his own business.
He is currently separated from his wife and has limited contact with her. He has 2 children with whom he has regular contact. He is related to his wife through his aunt.
Protection visa claims
The Tribunal asked the applicant why he does not want to return to Lebanon and what he feared would happen to him if he returns. The applicant stated that he went to Lebanon for a few weeks in 2013 and he did not know how to spend the day. There is no safety or stability in Lebanon, there is no government and it is not a place to be. The Tribunal asked if there were any other reasons why he could not return to Lebanon. The applicant stated that he would prefer to die in Australia, rather than going back to Lebanon. People in the village would insult him and tell him that he had left his family to come back. He believes that his drug taking and gambling will not be tolerated by his family. He confirmed that he did not intend to take drugs or gamble in Lebanon.
When asked specifically what he feared, the applicant stated he fears he will not get any respect and the lifestyle is different. He will not have any dignity and will not be able to get medical treatment. His in-laws live in the same village as him and they know he is to be blamed for the failed marriage with his wife. He came to Australia when he was [age] years old and has lived more than half his life in Australia. He does not want to be separated from his children.
Information under s 359A of the Act
The Tribunal put to the applicant particulars of information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review under
s 359A of the Act. The Tribunal explained why the information was relevant to the review and the consequences of the information being relied on in affirming the decision under review.This information was evidence that the applicant had provided at the AAT hearings held on 20 and 24 September 2021 about the decision not to revoke cancellation of his permanent visa. This evidence is recorded in the AAT decision made on 12 October 2021. The applicant had the use of an interpreter during this hearing.
At the AAT hearing, the applicant was also asked if there were any reasons why he could not return to Lebanon and if he feared for his safety. The applicant also stated that he has ongoing contact with his immediate and extended family.[4] The applicant did not raise any particular fear of harm and stated:
I am not worried about someone who could harm me or anything. But when I return to Lebanon the living conditions will not be as it is now.[5]
[4] [Decision 1]
[5] [Decision 1]
This information may be reason or part of the reason for affirming the decision as it may lead the Tribunal to doubt the credibility of his claim that he has no contact with his family. It may also lead the Tribunal to not accept his other claims for fearing harm if he returns to Lebanon (that is, harm due to his previous criminal record in Australia and Lebanon and harm from his family and wife’s family), given that he did not raise them when specifically asked about this at the AAT hearing. Overall, it may be the reason or part of the reason for affirming the decision as it may lead the Tribunal to find there is no real chance of serious harm or real risk of significant harm if he returned to Lebanon and that he does not meet the criteria for a refugee or for complementary protection.
The applicant commented that at the time of the AAT hearing, he was communicating with his mother. He was going through a difficult time. He did not really understand the question properly at the AAT hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issues in this case are whether there is a real chance, if the applicant returns to Lebanon, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant provided a copy of his passport to the Department, which shows he is a citizen of Lebanon. The Tribunal finds, based on the applicant’s passport, that he is a national of Lebanon and has assessed his claims on this basis.
Summary of applicant’s claims
The applicant has made a number of claims under the complementary protection criteria. He claims there is a real risk of significant harm due to:
· social isolation and lack of support from his own family
· being ostracised by his estranged wife’s family
· mental health conditions, namely PTSD and anxiety
· past detention and gaol in Lebanon
· persecution by the Lebanese authorities and stigma due to his previous criminal record in Australia and being a deportee
· economic harm due to unemployment, lack of housing and access to essential services
· being unable to reintegrate into Lebanese society
· the general security situation in Lebanon
· being separated from his children.
The Tribunal has considered each of these claims individually and cumulatively.
Whilst the applicant has specifically only made claims under the complementary protection criterion (s 36(2)(aa)), the Tribunal will firstly consider whether he meets the refugee criterion under s 36(2)(a) before considering complementary protection.
Does the applicant satisfy the refugee criterion for protection?
Protection visa application and new claims raised
At the hearing, the Tribunal asked the applicant how his protection visa application and claims were prepared. The applicant initially stated he did some of it himself and got help from someone at the detention centre. The Tribunal noted that the protection visa application form stated that he was being represented by a registered migration agent and he provided written submissions/claims with the application, prepared by his representative. The applicant then agreed that a ‘lawyer’ helped him complete the application and all the information in it is correct. His representative had explained the claims for protection, and he understood and agreed with those claims. The submission contained all his claims for protection.
At the hearing, the Tribunal discussed with the applicant that he had made several new claims that were not raised in his protection visa application before the primary decision was made. These claims were: his claim that he was imprisoned in Lebanon in an adult gaol when he was a juvenile; that he was bullied and tortured in gaol; and that he spent a further period in youth detention and in gaol after completing his mandatory military service. He also had not mentioned that he had been ostracised by his ex-wife’s family and by his own family. He did not mention his mental health condition and that he had been scheduled in [Town 1] Hospital in a mental health facility.
The Tribunal has considered, under s 367A whether it is satisfied the applicant does not have a reasonable explanation for not raising the claims earlier. At the hearing, the applicant claimed that he did not know what to include in his application. He initially claimed that he did not have a lawyer to help him with the application but later acknowledged that he in fact had a registered migration agent who assisted him. In post hearing submissions, his current representative claims he did not raise the issue of his wife’s family due to fear, shame and stigma.
The Tribunal has considered the applicant’s explanations. The applicant did not raise the issue of fear, shame and stigma in discussing family matters when questioned at the hearing. The applicant only claimed that he did not know what to include in his application. In any case, the Tribunal does not accept that the applicant would have been reluctant to discuss his family problems with his previous representative, if they formed a key part of his claims. The Tribunal also does not accept that the applicant would have been completely ignorant about what to include in his protection visa application. He was represented by a registered migration agent who provided 2 detailed 5 page submissions with the application. The applicant also acknowledged at the hearing that his previous representative had explained the claims for protection, he understood and agreed with those claims, and they were complete.
Having regard to the circumstances discussed above and the applicant’s explanations, the Tribunal is satisfied the applicant does not have a reasonable explanation as to why his claims and evidence regarding his criminal history and detention/gaol in Lebanon, his mental health condition, time spent in a mental health facility in [Town 1] and being ostracised by his ex-wife’s family and by his own family, were not presented before the primary decision was made. The Tribunal therefore draws an inference unfavourable to the credibility of the claims and evidence under s 367A of the Act.
Social isolation and lack of support from applicant’s own family
The applicant claims he has no contact with any members of his family and they would not welcome him back and support him if he returned to Lebanon. He claimed at the hearing that they would not tolerate his previous drug taking and gambling, may insult him and they previously did not react well to his previous criminal history. He claimed they would not allow him to live with them.
At the hearing, the applicant stated that his mother passed away in 2021. His father lives in the family property inherited from the applicant’s grandfather. His father lives there with his sister (the applicant’s aunt), the applicant’s older brother and the brother’s family. The applicant also has one younger [sibling] who lives in the same village with [in-laws] and [another sibling] who is married and lives elsewhere in the Miniyeh-Danniyeh district. One [sibling] passed away in 2014.
The applicant stated that he has no contact with his family and he does not really know much about their lives. His father was sick and treated for cancer in Beirut in 2022, but he did not contact his family at that time. He was close to his mother, until she passed away in 2021. He used to have some contact with his sister and last spoke to her at the end of 2022/beginning of 2023 when he was in [the second] detention centre, but the internet connection was poor. He also has extended family (uncles, aunts and cousins) and other relatives in his hometown. His family are aware that he was in gaol for criminal offences and their reaction has not been good. His father insulted him and told him not to come back. When asked about the main reason he had avoided contact with his family, the applicant stated that he got tired of answering their questions about what he had done, but did not state that he had experienced any angry or hostile comments from his brothers or sister.
The Tribunal noted that in the protection visa application form, the applicant had stated that he is in contact with relatives overseas and has contact with them by phone 2 to 3 times a week. The applicant stated that he has not had contact with anyone in his family for 2.5 years since the death of his mother. He does have regular contact with his children in Australia.
The Tribunal has considered the applicant’s claim but does not accept that the applicant would not receive any support from his family if he returned to Lebanon.
First, as found above, the applicant did not raise this claim with his protection visa application before the primary decision was made. The Tribunal has drawn an inference unfavourable to credibility of the claim and evidence under s 367A of the Act.
Second, in his protection visa application, the applicant mentioned that he has contact with his family by phone 2 to 3 times a week. At the hearing, he stated he has contact with his children, but the question specifically asks about overseas relatives.
Third, as put to the applicant under s 359A of the Act, the applicant stated at the AAT hearing in September 2021 that he has ongoing contact with his immediate and extended family. He told the Tribunal that he was communicating with his mother at the time, but his evidence at the AAT hearing indicated that he had contact with other family members when he referred to immediate or extended family members.
Fourth, based on the applicant’s evidence at the hearing, the Tribunal does not accept that the applicant would face hostility from his family to the extent that they would be unwilling to assist him if he returned to Lebanon. When asked about the main reason he had avoided contact with his family, the applicant stated that he got tired of answering their questions about what he had done, but did not state that he had experienced any angry or hostile comments from his brothers or sister. He claimed that his father insulted him and told him not to come back, but the Tribunal considers this comment was made in the heat of the moment when his father expressed his disapproval about the applicant’s past behaviour. The Tribunal does not accept that his father would refuse to support him if he returned to Lebanon.
Cumulatively, the above factors lead the Tribunal to not accept the applicant’s claim that he has not had any contact with his father, brothers or sister for the past 2.5 years. The Tribunal does not accept the applicant’s claim that his family would not support him if he returned to Lebanon. The Tribunal accepts that his family may not approve of his past criminal history in Australia or his drug use or gambling. They may use disapproving or insulting language towards him. The Tribunal does not accept in the applicant’s particular circumstances, and in light of his accepted health conditions,[6] that this meets the threshold of serious harm set out in the s 5J(5) of the Act or significant harm set out in s 36(2A) of the Act.
[6] These health conditions are discussed further in paragraph 65.
The Tribunal is satisfied that he could return to his hometown where his father, brothers and extended family live, with his sister living nearby in the same region. The Tribunal does not accept the applicant’s immediate or extended family would be unwilling to offer him accommodation and support if he returned to Lebanon. Therefore, the Tribunal does not accept that the applicant will be socially isolated or left homeless if he returns to Lebanon.
The Tribunal does not accept there is a real chance of serious harm arising from the applicant’s relationship with his family, in the reasonably foreseeable future, if he returned to Lebanon.
Harm from estranged wife’s family and others in his home village
The Tribunal has considered the applicant claims that his wife has turned her family against him, that his wife’s family has ostracised him and as result, he would face hostility from people in his hometown and his wife’s family would ask them to leave the village.
The Tribunal does not accept this claim. At the hearing, the applicant could provide no reasonable basis for his belief that his wife’s family would ask him to leave the village. He stated that he has had no direct threats from them and does not communicate with them. He could only state that he ‘knows how they work’, which the Tribunal considers to be conjecture and does not provide a reasonably objective basis for the applicant’s fear. In addition, as found above, the applicant did not raise this claim in his protection visa application and the Tribunal has drawn an inference unfavourable to credibility of the claim and evidence under s 367A of the Act.
The Tribunal does not accept the applicant’s claim that his wife has turned her family against him. Her actions suggest the contrary. The applicant has submitted a medical report about his wife. He told the Tribunal at the hearing that she had given him this report to assist with his case. She had also given evidence at the AAT hearing to support him. The Tribunal has considered the applicant’s explanation that her assistance depends on her mood and there are people against him. The Tribunal considers this explanation to be vague, and is not supported by the significant actions his wife was willing to take to support him, despite any changes in her mood. The Tribunal does not accept that his wife is acting against his interests by turning her family in Lebanon against him.
The Tribunal accepts that his wife’s family and others in his home village may not approve of his past criminal history in Australia, his drug use or gambling (if they are aware of it), or his separation from his wife. They may use disapproving or insulting language towards him. As put to the applicant at the hearing, the Tribunal does not accept that this behaviour meets the threshold of serious harm set out in the s 5J(5) of the Act or significant harm set out in
s 36(2A) of the Act.The Tribunal does not accept there is a real chance of serious harm from the applicant’s wife’s family or others in his home village, in the reasonably foreseeable future, if he returns to Lebanon.
Mental health claims
The applicant claims he will face harm if he returns to Lebanon due to a mental health condition. In support of this claim, the applicant has provided a report from [Psychologist A], dated 9 April 2025. [Psychologist A] concludes the applicant has suffered from PTSD ‘most of his life’ and generalised anxiety disorder for approximately 5 years.
In a post-hearing submission, the applicant’s representative states the applicant did not receive comprehensive psychological assessments or reports from immigration detention or prison. [Psychologist A] conducted an independent 2 hour clinical interview and applied his professional expertise to diagnose the applicant and his opinion should be given due weight. [Psychologist A] referred to country information in his report to contextualise the applicant’s mental health condition.
The Tribunal accepts that the applicant has had a diagnosis of PTSD and generalised anxiety disorder and has not substituted its own opinion for an expert opinion in this regard. The Tribunal accepts there may be a delay in diagnosing conditions such as PTSD and that some people with a mental health condition may be reluctant to discuss their condition. The Tribunal also accepts that the applicant previously had a problem with gambling and illicit drug use, although he has not claimed that he would continue to gamble or use drugs in the future.
The Tribunal has firstly considered whether [Psychologist A’s] diagnosis affected the applicant’s capacity to give evidence at the hearing. No issue or claim has been raised in relation to the applicant’s capacity to give evidence at the hearing. The Tribunal has considered the applicant’s evidence at the hearing that he is not used to talking about mental health and he was trying to remember everything gradually. The Tribunal gave him several opportunities at the hearing to provide further detail about his claims. The Tribunal is satisfied the applicant understood the Tribunal’s questions, responded to them in a reasonably coherent way and was able to meaningfully participate in the hearing. The Tribunal is satisfied that the applicant’s mental health conditions did not affect the quality of his evidence overall.
The Tribunal has several concerns about [Psychologist A’s] report in assessing the applicant’s claims of past harm and his claims about future harm if he returns to Lebanon. These concerns were discussed with the applicant at the hearing.
First, [Psychologist A] relies on the history of claimed harm as recounted by the applicant and the reasons for his symptoms, and accepts this at face value, without any independent analysis. A person giving evidence based on his or her special knowledge or experience in an area has an overriding duty to provide impartial assistance on matters relevant to the person’s area of knowledge or experience and is not an advocate for a party to the proceeding. The Tribunal considers that in this case, [Psychologist A] he has taken on the role of an advocate, making submissions on why the applicant should be granted protection in Australia. He makes several comments about the country situation in Lebanon and offers his own opinion about these conditions. For example, he refers to political instability, economic collapse, political instability and limited rule of law. He refers to returnees who may be targeted if they are perceived to have affiliations with certain political or religious groups or are seen as opponents of powerful factions. In his conclusion, he states ‘in view of these clinically significant concerns, I strongly urge the Tribunal to reconsider the decision to deport [the applicant]’.
The Tribunal does not accept the representative’s submission that [Psychologist A] is merely offering context to his clinical diagnosis. In the Tribunal’s view, he offers his own opinion about the country conditions in Lebanon and comments on matters outside his area of expertise. The Tribunal finds that [Psychologist A] has stepped outside his role as a psychologist making an independent assessment of the applicant’s mental health status and his report lacks impartiality.
Second, [Psychologist A] has based his assessment after seeing the applicant on one occasion for 2 hours over video, rather than over a lengthy period of assessment. There is no evidence that the applicant had any follow up consultations with [Psychologist A] or another psychologist.
Third, the Tribunal has concerns about the timing of the applicant’s consultation with [Psychologist A]. Despite arriving in Australia in 2006 and claiming to have experienced symptoms of PTSD due to events that occurred in Lebanon, the applicant did not consult a psychologist until April 2025, close to his Tribunal hearing date. There is no other documentary evidence of the applicant having a mental health condition before this date. There is no other evidence that he was scheduled at a mental health facility in [Town 1], as indicated by [Psychologist A]. At the hearing, the applicant was unable to explain what, if any, mental health treatment he had received in the past, only stating that he was prescribed sleeping tablets and medication for pain relief. He claims that he saw a health professional 4 to 5 times while in prison or detention but was unable to explain the reason for this. The Tribunal accepts that some people with a mental health condition may be reluctant to discuss their condition, and it may take time for them to be properly diagnosed. In this case, however, the timing of the applicant’s first consultation with [Psychologist A] raises concerns that the applicant has only consulted a psychologist and provided a report for the purpose of strengthening his claims for protection and not because he requires treatment.
The Tribunal is not bound by what a medical professional concludes as being the reason for an applicant’s symptoms.[7] The Tribunal is the finder of fact and is not bound to accept the opinions of a psychologist as the truth of the applicant’s claims.[8] In this case, given the Tribunal’s concerns about the applicant’s evidence about his claims of past harm outlined in this decision, and its concerns about [Psychologist A’s] report, the Tribunal does not accept that his report corroborates the applicant’s claims of past harm and gives it no weight in assessing these claims.[9] The Tribunal gives the report limited weight in assessing any future harm that may occur due to the applicant’s mental health condition.
[7] MZWZB v MIMA [2006] FMCAA 4211
[8] MZXTT v MIAC [2008] FMCA 1007 at [37].
[9] MIAC v MZYHS & Anor [2011] FCA 53
Having considered the evidence as a whole, the Tribunal is prepared to accept that the applicant has been diagnosed PTSD and generalised anxiety disorder. However, the Tribunal does not accept that [Psychologist A’s] report supports the applicant’s claim of past harm, or of future harm, if he returns to Lebanon, due to a mental health condition.
The Tribunal now considers whether the applicant faces a real chance of serious harm in the reasonably foreseeable future, if he returns to Lebanon, due to a mental health condition. The applicant claims that he would not be able to access treatment if he returned to Lebanon.
The Tribunal has considered the DFAT Country Information report which states that mental illness, including anxiety, depression and PTSD are common in Lebanon and have worsened due to multiple nationwide crises. Mental health services are scarce, especially outside Beirut. People with noticeable mental health symptoms may be subject to stigma. However, it has also been reported that there has been an increased openness around mental illness, especially anxiety and depression since the 2020 Beirut port blast.[10]
[10] Department of Foreign Affairs and Trade, Country Information Report - Lebanon (26 June 2023) (DFAT Country Information Report – Lebanon) at 2.17
In the applicant’s case, the Tribunal does not accept there is a real chance of serious harm due to the unavailability of mental health treatment in the sense of it being substantial.[11]. As discussed above, the applicant has not had any engagement with mental health services in the past. [Psychologist A’s] report provides limited information about the type of treatment the applicant requires in the future, other than stating that he should not be removed to Lebanon. He refers in vague terms the applicant’s need for ‘mental health support in Australia’ but does not explain in any detail what type of support the applicant requires, how often he requires this treatment, and for how long. At the hearing, the applicant stated that he was not taking any medication and he was not receiving or planning any ongoing treatment or sessions with a mental health professional.
[11] Chan v MIEA (1989) 169 CLR 379
There is otherwise limited information before the Tribunal about the type of mental health care the applicant claims he requires. Although the health system in Lebanon is in crisis, the Tribunal has found above that the applicant has family in Lebanon who could also support him if required.
The Tribunal is also not satisfied that there is a real chance of stigma towards the applicant, or that any stigma experienced by the applicant would amount to serious harm to him. The Tribunal notes that depression and post-traumatic stress disorder are common in Lebanon and therefore the stigma is likely to be less than other types of mental illness, where there are more noticeable symptoms.[12]
[12] DFAT Country Information Report – Lebanon at 2.17
In addition, the Tribunal finds that even if the applicant needed to access mental health services in the reasonably foreseeable future, and could not access these services, the essential and significant reason for the denial of treatment to him would be the lack of services available. It would not be for any of the refugee protection reasons in s 5J(1)(a) of the Act. When the Tribunal put this to the applicant at the hearing, he did not directly respond to this issue, but said that people in his village or anyone he meets will insult him as he did not do what was expected of him. The Tribunal has addressed this claim in its findings above.[13]
[13] Paragraph 58 to 62
The Tribunal does not accept that if the applicant is denied access to mental health services in the reasonably foreseeable future, that the essential and significant reason for this denial of services is for reasons of his race, religion, nationality, membership of a political group or political opinion, as required under s 5J(4)(a) of the Act.
Past detention and gaol in Lebanon
The report from [Psychologist A] refers to the claim that applicant was held in an adult gaol as a teenager for [period], was tortured in gaol and later moved to youth detention for [period]. He claims this occurred because the applicant was buying and repairing motorbikes. [Psychologist A] also states the applicant was sentenced to [period] imprisonment after completing his military service, although the reason for this sentence is not explained.
The Tribunal does not accept the applicant’s claims that he spent time in gaol in Lebanon, either as a juvenile or an adult. First, as found above, the applicant did not raise this claim in his protection visa application before the primary decision was made. The Tribunal has therefore drawn an inference unfavourable to credibility of the claim and evidence under
s 367A of the Act.Second, in the protection visa application, the applicant answered ‘no’ in response to a question asking if he had ‘been convicted of an offence in any country (including any conviction which is now removed from official records). The Tribunal does not accept the applicant’s explanation that he did not mention this issue in his application as he did not want his children to see this information. The protection visa application was prepared by his migration agent while he was in detention. The Tribunal does not accept that his children were likely to see his application in detail. He referred to his criminal history in Australia in his claims but did not refer to his earlier history in Lebanon. The Tribunal finds that if the applicant’s history of gaol in Lebanon were significant to his claims, he would have mentioned them earlier.
Third, at the hearing, the applicant was unable to explain to the Tribunal how his claimed detention and gaol in Lebanon impacts on whether there is a real chance of serious harm or real risk of significant harm in the future. He could only states that it impacted his family and he does not want the same thing to happen to his family, but did not explain why this was the case.
Fourth, the Tribunal has considered [Psychologist A’s] description of the applicant’s experiences in Lebanon in his report. [Psychologist A] reports the claims as recounted by the applicant and accepts these at face value. The Tribunal has outlined its concerns with [Psychologist A’s] report above. Given the Tribunal’s other concerns about the credibility of the applicant’s evidence regarding this claim, the Tribunal does not accept that [Psychologist A’s] report corroborates the applicant’s claims of past harm in Lebanon.
The Tribunal therefore does not accept that the applicant was gaoled or detained in Lebanon as an adult or teenager. The Tribunal does not accept that he was tortured while in detention or gaoled. The Tribunal does not accept that he would face any harm in Lebanon due to a claimed past history of having been gaoled/detained and tortured in gaol/detention.
Harm due to criminal record in Australia and being ‘deported’
The Tribunal accepts the applicant has 3 criminal convictions in Australia, of which 2 are spent convictions. He served a term of imprisonment for the third offence which involved [details deleted]. He has been in immigration detention since March 2021.
At the hearing, the Tribunal asked the applicant how his criminal convictions in Australia and his potential deportation from Australia would impact him if he returned to Lebanon. The applicant stated that his previous convictions caused a lot of problems as it triggers things he does not want to remember, and his family warned him not to do such things. The Tribunal noted that the written submissions claimed that he would be persecuted by the Lebanese authorities for criminal offences committed in Australia or targeted by extremist militant groups. The Tribunal asked how the Lebanese authorities or extremist militant gorups would know, or be concerned that, he had committed criminal offences in Australia when he had already completed his sentence. The applicant stated that before being deported, they will get in touch with the government and let them know everything. When asked what evidence he had to support this claim, the applicant stated that it happened for a number of people several years ago and they were shot in Tripoli and thrown into the harbour. He does not have further details about this.
The Tribunal discussed with the applicant, independent country information from DFAT, regarding the situation for returnees to Lebanon, which states:
It is not a crime for Lebanese citizens to seek asylum abroad. No significant stigma attaches to this group and there is no evidence to suggest that they are subject to any particular type of official or societal discrimination. On return [to Lebanon], a failed asylum seeker would only come to the attention of authorities if they had an existing stop order against them…or if they had committed a crime abroad of sufficient gravity for authorities to request an accompanied transfer.’[14]
[14] DFAT Country Information Report - Lebanon at 5.26
In response, the applicant stated he was on parole for 1.5 years (in Australia). If there is a mistake in your identity card, they will put you in gaol and things that happen inside Lebanon is very different to what is reported on the outside.
The Tribunal does not accept the applicant’s claim that he would be persecuted by the Lebanese authorities or targeted by extremist militant groups because of his criminal convictions in Australia, and because he may be deported from Australia. At the hearing, he referred to a claimed incident where unknown persons were shot in Tripoli but could provide no details about this incident or how it related to his circumstances. He referrred to being gaoled for a mistake in the indentity card, but couuld provide no details on how this related to his circumstances. His Lebanese identity card would not contain any information about his criminal convictions in Australia.
In summary, the applicant did not provide any detailed, objective or plausible evidence to support his claim that the Australian government would tell the Lebanese authorities everything about his criminal convictions before he returned to Lebanon, or that he would be put in gaol because of his identity card, or that extremist militant groups would seek to recruit him.
The Tribunal prefers the independent country information from DFAT referred to in paragraph 89. This states that there would be no official or societal discrimination against a person in the applicant’s circumstances. In this case, there is no evidence of a stop order against the applicant, nor any evidence that the Lebanese authorities have requested an accompanied transfer. The Tribunal could not locate any reliable country information which indicated the applicant would be of adverse interest to the Lebanese authorities or would be harmed by members of his community, or extremist militant groups, due to having criminal convictions in Australia.[15]
[15] Sources consulted include CISNET database, Google search engine, local and international media.
The Tribunal has considered the country information provided by his previous representative, which includes articles, reports and academic studies on the impact of criminal records on people in the United States, Europe and Australia. As discussed with the applicant at the hearing, the Tribunal gives this information limited weight as it is general in nature, does not have any information relating to Lebanon, or information related to the applicant’s particular circumstances. The Tribunal prefers the more specific, relevant and current information in the DFAT Country Information Report.
For the reasons set out above, the Tribunal does not accept the applicant would face any harm from the Lebanese authorities or from extremist militant groups because of his past criminal convictions in Australia, or because he may be deported from Australia. The Tribunal does not accept that he will be detained without formal charges and exposed to physical and psychological abuse in detention. The Tribunal does not accept that extremist militant groups would seek to recruit him. The Tribunal has already found that the applicant would not face harm from his own family or his wife’s family due to his previous criminal convictions in Australia.
The Tribunal does not accept there is a real chance of serious harm in the reasonably foreseeable future arising from the applicant’s criminal convictions in Australia, or because he may be deported from Australia, if he returns to Lebanon.
Economic harm due to unemployment, lack of housing and access to essential services
The applicant claims that he will experience economic and financial hardship if he returns to Lebanon due to his past criminal convictions. He claims he would not be able to find work in Lebanon due to his criminal convictions in Australia. The Tribunal asked the applicant how potential employers would find out that the applicant had criminal convictions, if he did not declare them to potential employers. The applicant stated that irrespective of his criminal record or not, it will be difficult for him to find work. People would find out about his criminal record through word of mouth.
The Tribunal noted that the applicant was bilingual (speaking Arabic and English) had an extensive work history as [an occupation 1], had run his own business and may be able to find work in Lebanon to support himself. The applicant stated that when he was in Lebanon, working was considered to be a waste of time. He does not expect he will receive any support from his family as he went abroad and they would expect him to support them.
The Tribunal accepts that if the applicant returned to Lebanon, he may have some difficulty finding work initially, given the current economic situation. There is no dispute that Lebanon continues to experience a severe economic crisis.[16] The Tribunal finds that the applicant nevertheless has skills and experience as a small business owner and [occupation 1] and may be able find work in that area or in other parts of the informal economy, given his age, language ability, skills and experience. The Tribunal does not accept that his past criminal record in Australia would prevent him from finding work as it is unlikely that he will be required to disclose a past criminal history from overseas to find work as [occupation 1] or other jobs in the informal sector. The Tribunal does not accept that potential employers would exclude him even if they found about his criminal record in Australia through word of mouth, given that he has served his sentence several years ago.
[16] DFAT Country Information Report – Lebanon at 2.7
100. The Tribunal has found that if the applicant returned to Lebanon, he would be able to live with his family in his hometown and could be financially supported by them if he was not able to find work immediately. As found above the Tribunal has not accepted the applicant’s family would be unwilling to offer him accommodation and support him if he returned to Lebanon or that he would be left socially isolated, homeless or unable to access essential services if he returns to Lebanon.
101.
The Tribunal does not accept the applicant would experience significant economic hardship, denied basic services or denied of capacity to earn a livelihood of any kind that would threaten his capacity to subsist within the meaning of s 5J(5)(d), (e) or (f) of the Act. The applicant claims that the living standards in Lebanon have changed. While the applicant’s financial circumstances and standard of living may not be the same in Lebanon as they are in Australia, the Tribunal does not accept there is a real chance of serious harm to the applicant. Noting that what constitutes ‘serious harm’ is not limited to the examples in s 5J(5), the Tribunal does not accept there is a real chance of serious harm, having considered the evidence as a whole. The Tribunal also does not accept there is a real risk of significant harm to the applicant, having considered definition of ‘significant harm’ in
s 36(2A) of the Act.
Reintegration into Lebanese society
102. The applicant claims that he faces harm as he will have difficulty reintegrating into Lebanese society after a long period spent in Australia. At the hearing, he stated that he would be regarded as a ‘foreigner’. The Tribunal put to the applicant that he grew up in Lebanon and spent his formative years here, his wife was of Lebanese background and he could speak and read in Arabic. The applicant responded that people know you are a foreigner by the way you walk. He has lived longer in Australia than in Lebanon and he tries to speak English in Australia.
103. The Tribunal does not accept the applicant’s claims. The applicant speaks and understands Arabic and is more fluent in that language than he is in English. He requested and made use of an Arabic interpreter for most of the hearing. The Tribunal does not accept that he spent more than half his life in Australia. He came to Australia in 2006 when he was [age] years old (he is now [age] years old), having grown up and spent his formative years in Lebanon. His estranged wife has Lebanese parents. The Tribunal does not accept the applicant would be regarded as a foreigner if he returned to Lebanon.
104. As found above, the applicant could return to his hometown where he has family and knows others in his community. The Tribunal does not accept that the applicant will face any harm in Lebanon because he is returning from having lived overseas. The Tribunal does not accept the applicant will face difficulty reintegrating into Lebanese society or that he will face serious or significant harm in doing so.
Security situation in Lebanon
105. The applicant claims that he cannot return to Lebanon due the general instability and security situation in that country. In written submissions, the applicant’s first representative referred in general to civil unrest, internal displacement and military activity. At the hearing, the applicant confirmed that his family lived in the north of Lebanon and had not been impacted by the recent conflict between Israel and Hezbollah. The applicant was unable to provide specific details about the nature of his claims regarding the security situation and referred vaguely to an incident at Beirut airport. He did not explain how this information related to his claims.
106. The Tribunal has considered the applicant’s claims, submissions and the country information provided by the applicant’s first representative. The Tribunal accepts there has been conflict between Israel and Hezbollah on Lebanon’s southern border and in parts of Beirut. Although a ceasefire agreement between Israel and Hizballah was announced on 26 November 2024, Israeli military operations and airstrikes in Beirut, southern Lebanon and parts of the Bekaa Valley could happen without warning.[17] Since the ceasefire agreement, Israel has carried out airstrikes in Beirut and south Lebanon. Israel has maintained a presence in five positions in Lebanese territory near the Blue Line (the demarcation line between Lebanon and Israel) in South Lebanon.[18]
[17] DFAT, Lebanon Travel Advice & Safety | Smartraveller (updated 21 January 2025) accessed on 5 May 2025.
[18] United Nations Security Council, Security Council Report, May 2025 Monthly Forecast Lebanon (30 April 2025) accessed on 5 May 2025.
107. As discussed with the applicant at the hearing, notwithstanding the rapidly evolving security situation in Lebanon, Hezbollah has historically controlled much of Lebanon’s Shia-majority areas, including parts of Beirut, southern Lebanon, and the eastern Bekaa Valley region.[19] The Tribunal has considered the country information provided by the applicant’s first representative but finds that it is general and historical in nature does not relate specifically to the applicant’s circumstances in the future. Contrary to the applicant’s claim that here is no government in Lebanon, the country now has a functioning government with the appointment of a President, Joseph Aoun and a new Prime Minister, Nawaf Salam in January 2025.[20]
[19] United States Department of State, 2023 Report on International Religious Freedom, accessed 5 May 2025.
[20] ‘Who is Nawaf Salam, Lebanon’s PM-designate amid political shift?’, Al Jazeera (14 January 2025) accessed 15 April 2025
108. The Tribunal has found that if the applicant returned to Lebanon, he would return to his home area of [Village 1], in the Miniyeh-Danniyeh district in the north of Lebanon, an area not under Hezbollah control and far from the conflict zone. The applicant has not raised any claim to fear harm from Israeli bombing or other security issues in his home area.
109. On this basis, the Tribunal finds there is no real chance of any harm to the applicant, due to the past, and any possible ongoing conflict, on the southern border of Lebanon, now or in the reasonably foreseeable future.
Separation from children in Australia
110. At the hearing, the applicant claimed that he does not want to be separated from his children and he is concerned about losing a connection with them. The Tribunal acknowledges that if the applicant returns to Lebanon and his children remain behind, separation from them may be difficult for the applicant. The Tribunal does not accept, however, that this will cause a significant deterioration in his mental health, such that it will result in a real chance of serious harm or real risk of significant harm to the applicant. The Tribunal gives little weight to this assertion in [Psychologist A’s] report for the reasons outlined in paragraphs 68 to 72 above.
111. The representative also claims the applicant’s removal from Australia will impact on his children’s well-being, but the Tribunal must consider whether there is serious or significant harm to the applicant, not his children. In any case, the Tribunal notes that the children live with their mother and the applicant has not had a direct role in caring role for his children since he was convicted of offences in 2019, due to the time he has spent in prison and immigration detention.
112. For the reasons set out above, the Tribunal finds there is no real chance of serious harm to the applicant in the reasonably foreseeable future due to being separated from his children in Australia.
Summary of findings:
113. The Tribunal does not accept the applicant’s claims that he:
· would face harm and/or ostracization from his own family
· would face harm and/or ostracization by his wife’s family or others in his hometown
· experienced past harm in Lebanon due to spending time in gaol and juvenile detention and being tortured in detention
· would face harm from the Lebanese authorities, extremist groups or the community due to his previous criminal convictions
· would be unable to find employment due to his previous criminal convictions
· would be left homeless or without financial or social support
· would be unable to reintegrate into Lebanon society
· would face harm in his home area due to the security situation in Lebanon.
Cumulative consideration of claims
114. The Tribunal has accepted the applicant’s claims that:
· He previously used drugs and gambled in Australia. He does not use intend to use drugs or gamble in the future if he returned to Lebanon.
· He has criminal convictions in Australia, including one conviction for [details deleted], for which he served a term of imprisonment, and 2 spent convictions.
· He may have some difficulty finding employment in Lebanon due to the current economic situation in that country.
· He has been diagnosed with PTSD and generalised anxiety.
· He would be separated from his 2 children.
115. The Tribunal has considered the applicant’s accepted claims individually and cumulatively.
116. The Tribunal has found the applicant would not face any harm in Lebanon as a result of his criminal convictions in Australia. The Tribunal finds that the applicant does not intend to use drugs or gamble if he returned to Lebanon and would not face harm for this reason. Whilst he may have some difficulty finding employment, he would also have the support of his family during any periods of unemployment and the Tribunal does not accept that he will face serious harm. The Tribunal has accepted that the applicant has been diagnosed with PTSD and generalised anxiety, but does not accept there is a real chance of serious harm to him due to the limited availability of treatment services or that his condition would deteriorate due to separation from his children. Further, the Tribunal finds that any difficulties he may experience in accessing mental health services would not be for the essential and significant reason of his race, religion nationality, membership of a particular social group or political opinion as required by s 5J(4)(a) of the Act.
117. In considering the applicant’s claims cumulatively, the Tribunal has also taken into account his evidence at the AAT hearing, which the Tribunal put to him under s 359A of the Act. At that hearing, the applicant stated he did not fear harm in Lebanon, but was more concerned about the change of living conditions in Lebanon. The Tribunal has considered the applicant’s explanation that he did not understand the question at the AAT hearing and therefore, did not raise other concerns. The Tribunal does not accept his explanation. The applicant had the use of an interpreter at that hearing, and the applicant was questioned in detail about any reasons why he could not return to Lebanon and if he feared for his safety. In the context of a permanent visa cancellation, the Tribunal considers that the applicant would have raised some evidence as to why he feared harm in returning to Lebanon. Based on this information, and in addition to the findings above, the Tribunal does not accept there is a real chance of serious harm in the reasonably foreseeable future, if the applicant returns to Lebanon.
118. Having considered the evidence as a whole, the Tribunal is not satisfied there is a real chance of serious harm if the applicant returns to Lebanon. The Tribunal also does not accept that any difficulties the applicant may face in accessing mental health services is for the essential and reasons of his race, religion, nationality, membership of a particular social group, or political opinion if he returns to Lebanon, now or in the reasonably foreseeable future, as required by s 5J(4) of the Act.
Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act.
Does the applicant satisfy the complementary protection criteria for protection?
120. 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) – that is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk he will suffer significant harm.
121. The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test. A ‘real risk’ and ‘real chance’ involve the same standard.[21] The Tribunal has made findings that the applicant would not face serious harm from his family, his wife’s family and his village if he returned to Lebanon. The Tribunal has made findings that the applicant would not face serious harm due to his mental health condition, past criminal convictions in Australia, separation from his children and having to reintegrate into Lebanese society. The Tribunal has found he would not be left homeless and without social or financial support. For the same reasons, the Tribunal does not accept there is a real risk of significant harm to the applicant. That is, the Tribunal does not accept: that the applicant will be arbitrarily deprived of his life; or that the death penalty will be carried out on him; or that he will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment (under s 36(2A) of the Act).
[21] MIAC v SZQRB (2013) 210 FCR 505.
122. In addition, while the applicant may face some difficulties finding employment due to the economic situation in Lebanon or accessing mental health services (if they are required), the Tribunal finds, based on the country information, that this would be due to the poor economic situation and lack of resources in Lebanon as a whole.[22] The Tribunal does not accept these circumstances have the element of intentional infliction of harm on the applicant required to meet the definitions of cruel or inhuman treatment or punishment, degrading treatment or punishment or torture, as set out in s 5(1) of the Act. The Tribunal also does not accept that the applicant would be arbitrarily deprived of his life or that the death penalty will be carried out on him due to these circumstances.
[22] DFAT Country Information Report – Lebanon at 2.7 to 2.10 and 2.17
123. When this issue was discussed with the applicant at the hearing, he responded that this was looking at the situation in Lebanon from the outside, not internally. He claimed that the currency was gone and the economy was destroyed. He again reiterated his claims that he as a mental health issue. The Tribunal has considered his response, but it does not overcome the fact that his claims to fear significant harm do not have the element of intention required to meet the definition of significant harm in s 36(2A).
124. In relation to the claim regarding separation from his children, the Federal Court in SZRSN v MIAC and the Federal Family and Circuit Court in GLD18 v MHA, have also confirmed that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[23]
[23] SZRSN v MIAC [2013] FCA 751 at [47]–[49] and GLD18 v MHA [2020] FCAFC 2 at [36]–[58]
125. For the reasons set out above, the Tribunal is not satisfied, on the evidence, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk he will suffer significant harm. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.
Conclusion
126. 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).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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).
DECISION
129. The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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36 Protection visas – criteria provided for by this Act
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(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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