1412336 (Refugee)

1412336 (Refugee) [2015] AATA 3609 (4 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1412336
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:David Corrigan
DATE:4 November 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 04 November 2015 at 5:16pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Lebanon, applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] July 2014.
The applicant appeared before the Tribunal on 4 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration and done so.
CONSIDERATION OF CLAIMS AND EVIDENCE
I have before me material which includes:
·Application for protection visa with statement of claims;
·Copy of the applicant’s passport;
·Various newspaper articles detailing conflicts in Lebanon;
·Medical evidence from [a hospital in Melbourne];
·Letter, dated [in] May 2004, from his psychologist concerning the applicant’s epilepsy;
·Various educational certificates and photos;
·Interview with delegate dated [in] May 2014;
·Medical certificate and assessment from the applicant’s doctor, dated [in] August 2014. It is opined that the applicant experiences PTSD and Adjustment Disorder with Mixed Anxiety and Depression;
·Applicant’s written submission lodged [in] August 2014.
The applicant’s claims can be summarised as follows. He is a Catholic who born in Sidon (Saida), Beirut, Lebanon in [year]. He then lived in [Town 1] next to Sidon until October 2007 before going to live in [Country 2] and [another country]. His parents and brother reside in Lebanon. He arrived in Australia [in] February 2011 on a Lebanese passport as the holder of a [temporary] visa.
The applicant experienced the brutality of the 2006 war in Lebanon and witnessed bombings and killings. He suffered insomnia and breakdowns as a result. Lebanon is a Muslim dominated country and they are trying to wipe out the Christians. He fears the Syrian refugees who are desperate for homes. In 2010, his brother lost his legs after a car accident after being shot at whilst driving past a Muslim town. In 2000, the applicant suffered a [serious injury] after being assaulted by men with a bat from a neighbouring town.
The applicant’s brother owns a [products] store in [Town 1] and does regular trips to wholesalers in Beirut. In mid July 2014, Salafists had cut off the main highway at [name] between Sidon and Beirut. The brother was stopped by two masked men who demanded his ID card. The men recognised he was a Christian and broke the car window with their rifle and punched his brother in the mouth. The brother recognised another man standing there as an owner of a [similar products] store in Sidon. Upon making eye contact, this third man whispered to one of the masked men who then punched his brother. They told him to turn around and go back to [Town 1] which he did. His brother was reluctant to go to the police as he was threatened he would be killed if he reported it.
A few days later, the applicant’s brother was again travelling from [Town 1] to Sidon where two men blocked his way and directed him to a small alley way at the entrance to Sidon. They called him a filthy Christian pig and said that they knew about him and his brother and their history. The brother thought it was the same third man from the incident a few days before. They threatened the brother and said they knew about the applicant in Australia and how he was scared to come back to Lebanon. They said they going to wipe out all Christians and that they knew where his shop was and they wanted [an amount] a month or the shop would be burnt and the his brother killed. They said the applicant was a traitor and that they would burn him alive. They took the brother’s wallet and punched him.
Country of reference
The applicant claims to be a Lebanese national. Based on the copy of his passport, I find that Lebanon is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.
Assessment of claims
I have considered carefully the applicant’s claims; however I do not consider him to be a credible witness in respect of most of them. I do so for the following reasons:
·The applicant gave substantially and fundamentally inconsistent evidence about these claims. For example, he told the Tribunal that his (only) brother had never been physically hit by anyone after his accident in 2010 and that the incidents where his brother was stopped and ordered to pay money occurred in 2011. However, in his letter submitted to the Tribunal on 28 August 2014, he stated these incidents occurred “just recently” in 2014 and that his brother required first aid after being punched in the mouth. At the hearing, the applicant commented that it was he who was [seriously injured] and that the year was a mistake in the letter. I have considered his comments but they do not satisfactorily explain such major inconsistencies and I find these inconsistencies detract significantly from his credibility. In making these findings, I have taken into account that the written claims were made by the applicant who can speak, read and write English and is highly educated having completed both a Master of [subject] and a Master of [another subject] at [a] University in September 2013 (as evidenced by certificates he submitted).
·The applicant has claimed that in one of these incidents, the Muslim extremists told his brother to tell the applicant that he is a traitor and if he comes back, they will burn the applicant alive. However, the applicant told the Tribunal that he lived in [Country 2] during 2007-10 and only returned to his home in Lebanon for one month in 2010 and did not have any problems and that he has been in Australia since. The applicant said that neither he nor or any of his family had ever been involved in any political group, though he considered himself a supporter of the Christian Lebanese Forces and had attended annual masses for the Lebanese President Bashir Gemayel who was assassinated in 1982. I asked the applicant whether he knew the people who were making these threats against him and he replied that there were lots of individuals in their groups and they often change. The applicant had not been in Lebanon for a significant period of time, was not a member of any political group (or significantly involved in one) and did not indicate that he had any direct contact with these individuals and I do not consider it plausible or credible in all these circumstances that the applicant would have been of such adverse interest to Muslim extremists that they would have made threats about him to his brother as he has claimed.
·The applicant’s claims are unsupported by country information. In its December 2013 and February 2014 reports, the Australian Department of Foreign Affairs and Trade (DFAT) commented that Christians were not at risk from sectarian violence in Lebanon and that victims of sectarian violence in the Sidon area appeared to be limited to members of Hezbollah and supporters of Sheik Ahmad al-Assir and that there was no reports of victims amongst the broader civilian population.[1] The Tribunal has not identified any reports of Christians being targeted by Muslim extremists in his area or on the way from there to Beirut. The applicant has not submitted any reports that indicate that this has happened other than a 2009 report (“[titled]”) concerning a Christian man from [Town 1] who was kidnapped near Beirut airport. However the report does not indicate who the perpetrators were or what was their motivation. I consider the applicant’s claims that his brother was targeted by Muslim extremists and that he was threatened by them to be inconsistent with available country information.
[1] Department of Foreign Affairs and Trade, DFAT Thematic Information Report Sectarian Violence in Lebanon, 18 December 2013. Department of Foreign Affairs and Trade, DFAT Country Report Lebanon, 25 February 2014.
Given these highly significant and fundamental concerns, I have about the applicant’s credibility, whilst I accept that his brother was severely injured in a car accident in 2010, I do not accept that this accident occurred as a result of his vehicle being shot at whilst driving past a Muslim town or after he was stopped at a Hezbollah checkpoint as he claimed at the hearing. I do not accept that the applicant’s brother was ever stopped by two masked men who demanded his ID card. I do not accept that the men recognised he was a Christian and broke the car window with their rifle and punched his brother in the mouth. I do not accept that the brother recognised another man standing there as an owner of a [similar products] store in Sidon. I do not accept that upon making eye contact, this third man whispered to one of the masked men who then punched his brother. I do not accept that they told him to turn around and go back to [Town 1] which he did. I do not accept that his brother was reluctant to go to the police as he was threatened he would be killed if he reported it.
I do not accept that a few days later, the applicant’s brother was again travelling from [Town 1] to Sidon where two men blocked his way and directed him to a small alley way at the entrance to Sidon. I do not accept that they called him a filthy Christian pig and said that they knew about him and his brother (the applicant) and their history. I do not accept that the brother thought it was the same third man from the incident a few days before. I do not accept that they threatened the brother and said they knew about the applicant in Australia and how he was scared to come back to Lebanon. I do not accept that they said they going to wipe out all Christians and that they knew where his shop was and they wanted [an amount] a month or the shop would be burnt and the his brother killed. I do not accept that they said the applicant was a traitor and that they would burn him alive. I do not accept that they took the brother’s wallet and punched him. I do not accept that the applicant’s brother has ever been extorted and I do not accept that the applicant and his brother are of any adverse interest to Hezbollah, Muslim extremists or anyone else.
In making my findings, I have taken into account the Tribunal’s Guidelines on the Assessment of Credibility (including the effects of anxiety and trauma on applicants and the passage of time). However, these do not overcome the highly significant concerns I have about the applicant’ credibility set out above.
In making my findings, I have taken into the medical evidence concerning the applicant including the letter from his doctor stating that he suffers from anxiety neurosis and stress, a copy of his mental health plan and a psychological assessment that states that the applicant experiences PTSD, Adjustment Disorder with Mixed Anxiety and Depression. I accept that he suffers from epilepsy as indicated in the evidence from [a hospital in Melbourne]. I accept that he suffers from these conditions and have given this evidence some weight, but it does not overcome the highly significant concerns I have about the credibility of his evidence (as set out above). The applicant was able to participate in the hearing and answer questions and I am satisfied that he was given a real and meaningful opportunity to give evidence and present arguments in a manner consistent with s.425 of the Act.
I accept that the applicant was attacked by Muslim supporters of the March 8 group when he attended a mass in 2000 in Beirut and [suffered a serious injury]. However, I consider this to be an isolated incident which was not repeated and given the passage of time and that the applicant was able to reside in Lebanon until 2007 without being harmed (and return there for a short period in 2010 without being harmed), I find that its occurrence does not mean that the chance or risk of him being seriously harmed or significantly harmed, now or in the reasonably foreseeable future is anything more than remote.

I accept that the applicant was in Beirut studying in 2005-06 and that he witnessed bombings and killings including that of a journalist and that a politician was killed close to his house. However, these incidents occurred a long period of time ago and did not involve the targeting of the applicant I find that their occurrence does not mean that the chance or risk of him being seriously harmed or significantly harmed, now or in the reasonably foreseeable future is anything more than remote.
Looking to the reasonably foreseeable future, I have considered available country information on the situation for Christians in Lebanon and the applicant’s home area and the reports submitted by the applicant to the Tribunal. In its December 2013 and February 2014 reports, the Australian Department of Foreign Affairs and Trade (DFAT) commented that Christians (who are approximately 20% of Lebanon’s population) were not at risk from sectarian violence in Lebanon and that victims of sectarian violence in the Sidon area appeared to be limited to members of Hezbollah and supporters of Sheik Ahmad al-Assir and that there was no reports of victims amongst the broader civilian population.[2] These reports do not make any mention of supporters of the Christian Lebanese Forces being harmed. The Tribunal has not identified any reports of Christians being targeted by Muslim extremists in his area or on the way from there to Beirut. Though there are reports of ISIS and al-Nusra being a threat to Christians in Lebanon, the country information indicates that this has occurred in the areas of Arsal and Ras Baalbak in the Beqaa Valley which is in the north east of the country near Syria and not in the applicant’s home area or Beirut or other parts of the country.[3] I have also examined a wide range of authoritative sources; however none of these refer to any targeting of Christians or Maronite Lebanese Forces party supporters.[4] The Tribunal has also not identified any reports of Syrian refugees or Palestinian refugees targeting or harming Christians and the applicant has not submitted any.
[2] Department of Foreign Affairs and Trade, DFAT Thematic Information Report Sectarian Violence in Lebanon, 18 December 2013. Department of Foreign Affairs and Trade, DFAT Country Report Lebanon, 25 February 2014.
[3] See International Business Times, Christians Threatened by ISIS in Lebanon Turn to Hezbollah for Help, 21 April 2015, and "Army presence reassures Christians facing ISIS", Daily Star, The (Lebanon), 23 March 2015, CXBD6A0DE3252
[4] For example, Human Rights Watch, World Report 2015: Lebanon, Events of 2014 and Freedom House, Freedom in the World 2015 – Lebanon, 5 May 2015.
More broadly, DFAT have advised that there is little systemic or official discrimination in law or policy against recognised religious groups (including Maronite Christians) and that in general, Lebanon is a diverse country with a high degree of tolerance for religious diversity and only a low level of societal discrimination against particular faith groups in particular regions of the country. I note that the applicant was able to obtain a Bachelor of [subject].
The applicant has not claimed that his parents have ever been threatened or harmed and I have not accepted that his brother (although the victim of an unfortunate car accident) has ever been. I accept that the applicant supports the Christian Lebanese Forces party but he has never been a member of it and his support has been limited to attending annual masses in honour of an assassinated Christian leader. The available country information does not indicate that supporters of this group are being harmed by any group in Lebanon.
Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future at the hands of Hezbollah, ISIS, al Nusra, Salafists or any other Muslim group or Muslims generally or Palestinian refugees or Syrian refugees or anyone else for any Convention reason (including his religion and actual or imputed political opinion) or for any non-Convention reason. His fear of persecution is not well-founded.
Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon that there is a real risk that he will suffer significant harm.
Conclusions
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in 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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David Corrigan
Member

[2015] AATA 3609

4 November 2015

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Immigration

Statutory Interpretation

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Procedural Fairness

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