FFP18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1906

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).

1. The applicant is a citizen of Lebanon, who arrived in Australia some years ago. In November 2016, the applicant lodged a protection visa application.
2. On 7 December 2017, the Delegate refused the application. The matter was subsequently referred to the IAA for review.
3. On 20 September 2018, the IAA affirmed the Delegate's decision.

1. The IAA observed that it had received correspondence from the applicant containing, amongst other things, country information and reports that were not before the Delegate and were new information. The IAA was not satisfied that ss 473DD(b)(i) or (b)(ii) of the Migration Act 1958 (Cth) (Act) were met in relation to the new information. Further, the IAA found that s 473DD(a) of the Act was not met. The IAA therefore found that it was unable to have regard to the new information within the context of its review (at [2]-[9]).
2. The IAA accepted that:

(a) the applicant was a Sunni Muslim from the area claimed in North Lebanon (at [12]);

(b) the applicant's memory, concentration and focus were impacted by his mental health condition and issues following a car accident in 2015 (at [13]);

(c) the applicant was visited at his shop in Lebanon by extortionists (at [15]);

(d) the applicant received threatening messages on 6 occasions from an anonymous sender, that this occurred approximately 6 to 12 months before the applicant's departure from Lebanon and that the applicant was frightened and took active steps to avoid contact with them (at [15]);

(e) the applicant feared that running a successful business in Lebanon would attract a perception of relative wealth and risk extortion and violence (at [28]);

(f) the applicant would necessarily have some likely contact with Hezbollah agents while re-entering Lebanon (at [33]);

(g) the applicant suffered from a major depressive disorder, post-traumatic stress disorder (PTSD) and physical back problems, requiring ongoing medical assistance and care (at [46]-[48]); and

(h) the applicant may face some difficulties due to the availability of services in his area and his adjustment to the healthcare system in Lebanon (at [50]).

(a) any indication was given to the applicant about his money going to fund Hezbollah activities, nor about the identity of those trying to extort him (at [20]);

(b) the applicant was extorted or threatened by Hezbollah or any other militia groups, finding rather that he was targeted by criminals unaffiliated with any group (at [21]);

(c) the applicant was known or of interest to Hezbollah or any militia groups (at [24]);

(d) the applicant faced a real chance of harm from Hezbollah or any militia groups in relation to his resistance to the extortionists' demands (at [24]);

(e) the extortionists intended to follow through on their threats (at [25]);

(f) the applicant faced a real chance of harm from the extortionists who had previously threatened him (at [25]);

(g) the applicant would face a real chance of harm in Lebanon as a consequence of extortion, threats and violence or other criminality (at [29]);

(h) the applicant faced a real chance of harm from Hezbollah or anyone on the basis of a profile as a wealthy business owner in northern Lebanon or as a Sunni wealthy business owner in northern Lebanon (at [30]);

(i) the applicant would have or be imputed as having a profile that would attract risk of harm from Hezbollah (at [32]);

(j) the applicant was or would be of adverse interest to Hezbollah (at [32]-[33]);

(k) the applicant would be suspected of being an enemy of Shia militia, or as someone otherwise opposed to them, or of being an agent of the west (at [34]);

(l) the applicant faced a real chance of being harmed by Hezbollah or anyone on account of his Sunni religion or any imputations of opposition to Shia militias (at [34]);

(m) the applicant faced a real chance of harm on account of his travel to/links with/asylum application in Australia or the west (at [34]);

(n) the applicant faced a real chance of being harmed by any persons or groups for being Sunni or as a result of security issues (at [37]-[38]);

(o) the applicant faced a real chance of harm arising from sectarian conflict or from insurgent or generalised violence (at [43]-[44]);

(p) should it be required, the applicant would be denied treatment or necessary medications for his physical or mental health (at [50]);

(q) the applicant's physical or mental health conditions and the environment to which he would be returned would lead to his facing a real chance of harm (at [53]);

(r) the applicant faced a real chance of harm for financial related reasons (at [55]);

(s) the applicant faced a real chance of persecution for any claimed reason (at [56]); or

(t) the applicant faced a real chance of significant harm should he return to Lebanon (at [60]-[62]).

1. Having regard to the above, the IAA found that the applicant did not meet the criteria for grant of the protection visa (at [56]-[57] and [63]). Accordingly, the IAA affirmed the Delegate's decision.

1. The applicant sought judicial review of the IAA's decision through an application filed on 5 October 2018. The matter remained in the central migration docket for some years and was previously docketed to another judge before being allocated to my docket more recently and listed for hearing. The applicant ultimately relied upon an amended application filed on 22 July 2025, containing the following ground:

1. The Authority failed to complete the exercise of its jurisdiction

Particulars

the material before the IAA together with its findings clearly raised the question about whether the applicant might be discriminated against by Hezbollah in relation access to health services particularly should his village become a part of the Hezbollah state within a state. The IAA failed to address this claim

(As per the original)

1. The ground contended that the IAA failed to consider a claim that clearly arose. In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (AYY17) at [18], the Full Court (Collier, McKerracher and Banks-Smith JJ) considered in some detail the relevant principles regarding the obligation upon a decision maker to consider claims, including:

...

• The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

• The Tribunal is only required to consider such claims where they are either:

  (a) the subject of substantial clearly articulated argument, relying on established facts; or

  (b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67])...

  • As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

(a) such a finding is not to be made lightly (NABE at [68]);

(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c) to clearly emerge from the materials, the claim must be based on "established facts" (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38]))...

(d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised " or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party": Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 per Flick J (at [21]); and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

1. Claims that a decision maker is obliged to consider that "clearly emerge" include those that arise in consequence of (inter alia) their own findings: AYY17 at [26].
2. The applicant observed that he had provided evidence regarding his medical conditions that was before the IAA. Such evidence included a report indicating, in addition to the applicant's physical issues, a whole person impairment of 47% in respect of the applicant attributable to PTSD and a major depressive disorder (CB 176).
3. The applicant observed that his representatives had submitted that he lived in a village situated along the highway linking two areas, including a Hezbollah stronghold. The highway was submitted to be frequented by Hezbollah militia (CB 185). The representative submitted that Hezbollah was "intent on exerting power and dominance in the region" and the most recent report by the Department of Foreign Affairs and Trade (DFAT) stated that "Hizballah is the most prominent non-state actor and has a rising military strength believed to exceed that of the Lebanese armed forces" (CB 186).
4. The applicant observed that his representative's submissions had extracted an article from the Washington Post stating the following (CB 189):

... Hezbollah became stronger after the Syrian war began, when it joined forces with Syria's Iranian-backed government to battle Sunni rebels, he said. "Its influence in the heart of Lebanon's security institutions is certainly greater than ever before."... "Hezbollah thrives of course on its position of being a state within a state, an alternative provider for all kinds of things," said Heiko Wimmen, project director for Iraq, Lebanon and Syria at the International Crisis Group, a nonprofit that researches violent conflict.14

1. The submissions quoted a DFAT 2017 assessment as follows (CB 195):

... Several areas in Lebanon are not under effective state control, owing to the broader security situation. These include areas of effective Hizballah control and Palestinian camps, from which Lebanese authorities are largely absent. The level of state protection varies considerably in areas where Hizballah predominates, including a significant proportion of southern Lebanon, some areas of southern Beirut and parts of northern Beka'a governorate. Areas where Hizballah's control has led to the effective exclusion of the state include Hizballah training camps and sensitive installations in the southern suburbs of Beirut.39

1. The submission further quoted a DFAT travel advice warning against travel involving the applicant's home area (CB 192).
2. The applicant observed that the IAA accepted that he suffered from the conditions explained in the medical reports (at [46]). The IAA accepted that people in rural areas had poorer and inequitable access to mental health services compared with urban areas (at [49]). The IAA acknowledged country information indicating "some low-level discrimination against particular religious groups in some areas of Lebanon" (at [37]). At [50], the IAA found:
   1. Overall, while I accept there are shortcomings in the country's healthcare (and mental healthcare) system, public and private healthcare facilities are available. Country information does not indicate persons with the types of physical health issues or mental health issues of the applicant would contribute to a person having a risk profile or being targeted and harmed. Nor does it indicate that treatment for such conditions in Lebanon is intentionally withheld from persons of any ethnicity or profile, or for any reasons. I am not satisfied that should it be required, the applicant would be denied treatment or necessary medications for his physical or mental health. I accept the applicant may face some difficulties due to the availability of services in his area and his adjustment to the healthcare system in Lebanon. However I am not satisfied that any difficulties he may face in obtaining the treatment and support that he needs would be as a result of systematic and discriminatory conduct on the part of the government or anyone.
3. The applicant submitted that the IAA's acceptance that religious discrimination did occur, together with the applicant being Sunni and Hezbollah being a Shia organisation, resulted in the material before the IAA, together with its findings, clearly raising the question about whether the applicant might be discriminated against by Hezbollah because of his Sunni religious identity in accessing health services. This was said to be particularly the case should his village become a part of the Hezbollah "state within a state".
4. I accept the Minister's submissions as to why the ground relied upon by the applicant is unable to succeed.
5. I am not persuaded that the claim in question "clearly emerged" on the materials. The applicant was unable to point to any evidence before the IAA that was unambiguously to the effect that Hezbollah discriminated against ordinary Sunnis on the basis of religion, let alone in the provision of healthcare or other services. I am not persuaded that such a claim obviously or necessarily arose on account of Hezbollah's Shia affiliations. Although the IAA acknowledged country information indicating "some low-level discrimination against particular religious groups in some areas of Lebanon" (at [37]), the IAA went on in that paragraph to observe that the applicant was in the religious majority and considered that:

... country information does not indicate that religious discrimination is directed at Sunnis in the north, or indeed that Sunnis are systematically targeted for other harms. Country information does not support that Hezbollah target ordinary Sunnis, or those who pose no threat to them. I am not satisfied he faces a real chance of being harmed by any persons or groups for being Sunni.

1. The applicant also did not point to any evidence that was unambiguously to the effect that there was a danger of Hezbollah becoming a provider of health services (whether through delegates, or personally) in his village. I am not persuaded that this "clearly emerged" from the country information relied upon by the applicant regarding Hezbollah's role in other, nearby, areas or from its prominence and "rising military strength" more generally (CB 186). Nor am I persuaded that it relevantly emerged from the applicant's statement (CB 104 [10]) that Hezbollah trucks had smuggled weapons through his area with the government lacking the power to stop them. The ability of Hezbollah to transport weapons did not necessarily suggest that Hezbollah may take over the area and become a substitute provider of health services.
2. In any event, I have not been taken to anything in the materials that were before the IAA to the effect that access to health services (or other services) was reduced for Sunnis, on the basis of religion, in areas in which Hezbollah had control or a role in providing services. At hearing, the applicant accepted that there was nothing before the IAA directly evidencing that Hezbollah engaged in this type of discrimination. The applicant also accepted that there was nothing in the materials that might be said to give content to the extent to which Hezbollah were expected to be personally involved in the provision of services, like health services, in areas in which they had assumed effective control.
3. I further accept the Minister's submission that even if such a claim had clearly arisen, the factual premises of such a claim were effectively rejected within the IAA's findings of greater generality: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [47]. As the Minister observed, the contended claim was premised upon the proposition that Hezbollah would target or discriminate against Sunnis based on their faith. At [37], the IAA found that country information did not support that Hezbollah targeted ordinary Sunnis or those posing no threat to them. This tied in with the IAA's finding at [32] that it was satisfied that "it is really only persons who represent a direct threat to Hezbollah's political power or some other measure of their authority who face a risk of harm from Hezbollah". Such reasoning was not expressed as being confined to areas outside of Hezbollah's control (or "states within a state"). I accept the Minister's submission that, in so reasoning, the IAA effectively rejected the factual premise of the unarticulated claim (that the applicant, or others, may face harm from Hezbollah through discrimination on account of religion).
4. Having regard to the above, I am not persuaded that the sole ground relied upon by the applicant is able to succeed.

1. It follows that the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.