2501227 (Refugee) - [2025] ARTA 1393

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 2
CASES
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 751
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 2501227 (Refugee)

Details

AGLC: 2501227 (Refugee) [2025] ARTA 1393
Case: [2025] ARTA 1393
Decision Date: 23 May 2025

CaseChat Overview and Summary

The case involved an individual from Lebanon who applied for a protection visa, arguing that returning to Lebanon would put him at risk due to his criminal record, lack of family support, economic hardship, and the security situation in the country. The applicant was represented in the proceedings. The Federal Circuit and Family Court of Australia reviewed the delegate’s decision to deny the protection visa application.

The central legal issues revolved around whether the applicant met the criteria for a protection visa under Australian law. Specifically, the court needed to determine whether the applicant would be subjected to persecution if returned to Lebanon, as defined by the Refugee Review Tribunal Act 1990. This included assessing the applicant's risk of social isolation, economic hardship, and potential persecution due to his criminal record and the current security situation in Lebanon.

The Court examined the evidence provided by the applicant, including his criminal history in Australia, the potential for stigmatisation and discrimination in Lebanon, the economic challenges he would face, and the security risks posed by the ongoing instability in the country. The Court also considered the applicant's lack of family support in Lebanon and the difficulties he would encounter in reintegrating into Lebanese society. The Court concluded that while the applicant faced significant challenges, these did not amount to persecution as defined by the Act. The Court found that the applicant's claims of social isolation and economic hardship, while serious, did not reach the threshold of persecution. Additionally, the Court determined that the security situation in Lebanon, while concerning, did not necessarily expose the applicant to a risk of persecution.

As a result, the Court affirmed the decision to deny the applicant a protection visa. The Court found that the applicant's criminal record and the resulting social stigma would indeed pose significant challenges, but these challenges did not equate to the level of persecution required for a protection visa under Australian law.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in relation to the review. BACKGROUNDEvidence 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]

Evidence

Evidence Before The Court

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 supportThe 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 HistoryLebanese 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 healthContinuous 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 childThe 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 TribunalPre-hearing submission

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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