1412421 (Refugee)

[2015] AATA 3172

1412421 (Refugee) [2015] AATA 3172 (2 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412421

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:2 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 02 July 2015 at 2:24pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431(2) 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

1. 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).

2. The applicant who claims to be a citizen of Lebanon, applied for the visa [in] October 2013 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 16 June 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CLAIMS AND EVIDENCE

   Protection Visa Application

5. The applicant claimed that he feared being kidnapped or killed by Salafists or other Sunni radicals because he was an Alawite resident of Jabal Mohsen.  He had had threats to his life and his home had been damaged by the bombardments.

   RRT Hearing

6. The applicant affirmed that the photos he submitted were of his house, although he had no way of verifying that this was the case or the date on which they were taken.  He was also asked about the letter he claimed confirmed his location as Jabal Mohsen that had been issued by [a public official].  It was put to him that it was said that it was done for [a foreign] Embassy and the Tribunal had to determine what weight to give it.  He claimed he didn’t know why this was the case.

7. He was asked for a copy of his birth certificate, but claimed that it was burnt when his house was on fire and he would have to go to court to get a new one.  He was asked to provide country information that indicated it was necessary to go through a court to get a new birth certificate, as it was the Tribunal’s understanding that these could be sourced through the civil registry.  He claimed his birth certificate was burnt so he couldn’t get a copy and he was advised by the Tribunal that registries kept copies.

8. The applicant claimed that if he returned to Lebanon he would be targeted by Islamic State (IS) because he was an Alawite from Jabal Mohsen.  There had already been battles and bombings.  He would be shot by IS because they were present in Tripoli.  If he wanted to pray in his mosque he would also be stopped by IS; they had followed him previously but he avoided them.

9. He had no other claims and had had this fear in late 2008 or 2009 as this was when the clashes between the groups began.  He is, and always had been a devout, practising Alawite.  His family, including those in Australia were also all devout, practising Alawites.

10. In Tripoli he was a [occupation] and had been doing this for six or seven years.  He began in 2000 until 2009/10 and had been on and off work.  Between 2010 and coming to Australia he had been unemployed as he was unable to leave Jabal Mohsen to Tripoli for fear of being kidnapped.  He survived financially because of remittances from his [siblings] overseas.

11. In 2013 he had gone to Tripoli a month before he left Lebanon with his friends.  They were on a bus in front of him and he was in his car behind the bus.  Several of them were shot on the bus because they were Alawites.

12. He was confined to his area from around 2010 because there were checkpoints all around the area manned by IS.  It was put to him that IS weren’t around in 2010 and he claimed they were and he heard them from the mosques.  He was asked when the Syrian civil war broke out and he claimed it was in 2012 but before that the Alawites were blamed because of the assassination of Hariri.  It was put to him that if he was claiming he was stopped from leaving by IS in 2010 before they had come into existence, this may impact on his credibility.

13. On Fridays the Sunni mosques talk about Alawites and battles begin in Jabal Mohsen.  They let him know he couldn’t leave.  Asked how he was physically stopped from leaving, he claimed that he never left after the 2013 bus incident.  It was put to him that he had left after 2010 because he had mentioned his involvement in the bus incident.  He claimed he had to pick up the money transfer from Tripoli.  Asked if he had left other times, he claimed that Lebanese Army members went to pick up his money transfers as there were no banks or money transfers in Jabal Mohsen.

14. He claimed he owned the house in Jabal Mohsen and was asked to provide a copy of his title.  His father and mother and [siblings] still lived in Jabal Mohsen.  His parents and a [sibling] had gone to [Country 1] but came back to Jabal Mohsen in 2014; asked why they felt safe enough to return to Jabal Mohsen even though they were Alawites, he claimed they were [Country 1] permanent residents but returned annually to [Country 1].

15. Asked why he couldn’t go back, he claimed that they were still at risk. It was put to him that he claimed he couldn’t return yet other members of the family did.  He claimed they were different to him and he was asked in what way they were different that allowed them to return to a place he claimed he couldn’t.  He claimed when they returned they didn’t go anywhere because they were at risk.

16. Asked if he had been refused a visa previously he claimed that he had been refused in 2013 but didn’t know why.  It was put to him that there was a reason and e claimed he didn’t know and wasn’t concerned because his [sibling] had told him that he wasn’t allowed.

17. His house in Jabal Mohsen had been the scene of fighting and there was a war and shots were fired.  The area he lived in first experienced this fighting in around 2008 until he left in 2014; his house was targeted in 2010, 2011 and 2013 for the last time but he wasn’t there then.  He was still able to live in it in 2010 and 2011 but was living in his parent’s house that was more protected.  He said that there were places with underground refuges that he could hide which were in the area his parents lived.

18. He had been targeted by IS because he was Alawi and would be shot.  Asked how he had been targeted, he claimed if he walked down the street then shots would be fired at him.  Asked how the Alawi faith differed from mainstream Shi’ism he claimed there were lots of differences; they had their own mosques and schools.  Asked what the ideological differences were, he claimed that they acknowledge Khomeini as an Imam where they had their own sheikhs.  Asked how the faiths viewed Imam Ali, he claimed Alawis Ali as the first Imam but Shi’a consider Imam Hussein as the first Imam.  It was put to him that Hussein was in fact the first Imam and he would know as an observant Alawi what the differences between the faiths were.

19. He claimed that Ali was their role model and Hussein was the Shi’a.  They believed Ali had died whereas the Alawis didn’t.  It was put to him that he spoke in generalities and he needed to speak in more specifics of the faith-based differences as the Tribunal wanted to test his credibility.  He repeated his claim that the Shi’a said Ali was killed whereas they didn’t; they also had differences in the way they prayed.  Asked if there was a difference in the nature of Ali between the religions, he claimed there was.  He repeated that Ali was Alawi’s first prophet whereas Hussein was the Shi’a Imam.  Aspects of the faith were secret which made it difficult for him to talk.

20. He was asked why he couldn’t move to Akkar with other Alawi or to Beirut.  He claimed there was no Alawi mosque in Beirut and there were lots of problems with killings in Akkar.  In Akkar there were Alawi mosques, but he never tried to go there.  The Tribunal member put to the applicant that the member had been told of Alawis living in the Shi’a suburbs of southern Beirut – he claimed the Alawi were from Syria and there were bombs in those suburbs. 

21. He was advised about s 424AA and told about a DIBP visitor’s visa application in December 2012 in which he said he had been employed as [another occupation] for 10 years and had provided a letter of employment and a paid leave approval.  Yet today he had claimed he hadn’t worked since 2009/10 and survived on money sent by his family in Australia.  This inconsistency meant he had either not been truthful or had provided false documents to the Australian government.

22. He claimed that he had told the truth today and that he had never been employed in 2012 and that he had knowingly provided false documents in support of his visa application.  It was also put to him under s 424AA that during his MRT review that he had claimed to also be employed and to have six weeks paid leave when he claimed today that he hadn’t been and that this could also affect the Tribunal’s view of his credibility.  He claimed he was sorry that he had lied.

23. It was put to him that he may have been motivated by economic opportunities to come to Australia and not because he was in any danger.  It was also put to him that during the interview for the MRT his [sibling] had advised that neither [the sibling] nor the applicant were religious, that he wasn’t affected by sectarian violence and that he didn’t live in an area that was affected by the fighting.  These all contradicted what he had claimed today.  The Tribunal was concerned that the applicant was misrepresenting himself to the Tribunal and the danger that he may be in.  The Tribunal had concerns as to whether the applicant was actually religious or that he lived in an area subject to violence or in Jabal Mohsen at all.

24. He claimed that his [sibling] didn’t know what he had deep inside him or how religious he was, and that the applicant did live in Jabal Mohsen.  Religion was very personal.  Making money in Australia was never even on his mind.  The Alawi were a persecuted sect and they didn’t even have their own minister in the government.   He claimed that he went to the Alawite organisation in Australia to follow his faith and that he could get documents in Lebanon to prove that he was an Alawi.  He was told that country information indicated that fraudulent documents were prevalent in Lebanon and that the Tribunal already had concerns about his credibility.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The applicant first arrived in Australia on a visitor’s visa [in] March 2008 and returned to Lebanon after three months.  The applicant had a subsequent visitor’s visa application refused but the decision was subsequently set aside by the MRT and the applicant arrived [in] September 2013.  He lodged a protection visa application [in] October 2010.  I have sighted his passport and accept that Lebanon is the applicant’s country of nationality. 

26. The applicant is a [age] year old Alawite from Tripoli.  He claimed that he lived in Jabal Mohsen and feared being killed by Islamic State (IS) because he was an Alawite.  To the extent that it is relevant I have taken into account the DFAT Country Report – Lebanon.

27. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

28. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his entire claim in order to be granted a protection visa.

    General Credibility Issues

29. The applicant claimed during the hearing that he had not worked in his job as a [occupation] since 2009/10 because of the danger he faced in Jabal Mohsen.  In his visitor’s visa application however, he claimed that he had been employed as [another occupation] for the past 10 years and he submitted a document that he claimed was a paid leave approval. 

30. When confronted with this inconsistency, he then claimed that he had knowingly submitted a false document because he wanted to leave Lebanon.  This is illustrative of a pattern of inconsistency throughout his evidence, as well as a willingness to submit false documentation that indicates the general lack of credibility displayed by the applicant.

    Residential Location

31. While I am satisfied that the applicant lives in the Tripoli area, I am not satisfied that he lives in Jabal Mohsen.  He claimed in his PV application that he had lived in Jabal Mohsen since January 2000 (folio 31), and during his hearing that he owned the house.  However, when he was asked to provide a copy of the lease of the house, the one he provided (folio 36) showed a lease dated 1970 that shows the lessee as his mother.

32. The lease is a photocopy of a document with handwritten entries and, while the addresses of the lessor and lessee simply say Jabal Mohsen, the actual location of the property being leased appears to be in [a suburb of] Tripoli.  This area[1] is well removed from Syria Street and Jabal Mohsen where conflict has been centred.

    [1] [Information deleted].

33. I also note that during the Migration Review Tribunal hearing the applicant’s [sibling] said regarding the area where [the applicant] lived, that ‘It is safe where he is. He doesn’t go to those areas (where there is sectarian violence)’.  This further strengthens the Tribunal’s finding that the applicant does not live in Jabal Mohsen.

34. I lend little weight to the document that the applicant provided that he claimed was a residence statement showing his address as Jabal Mohsen.  Country information indicates that forms of Lebanese identification other than the national identity card and passports can be easily forged[2], the applicant has already shown a willingness to present forged documents to further his efforts to come to Australia, the responses were handwritten and the form photocopied, while the document itself said that ‘The present statement was given to complete procedures at the [foreign] Embassy…’, an annotation that appeared to indicate the form was designed for a different use than simply to be held by the applicant or to present to the Tribunal.

    Religious Affiliation

    [2] DFAT Country Report Lebanon dated 25 February 2014, p 25.

35. I accept that the applicant is an Alawite by birth but find that he isn’t observant.  Although he claimed that he and the rest of his family were very devout, practicing Alawites, this was inconsistent with the evidence given by the applicant’s [sibling] to the Migration Review Tribunal, who stated that both [the sibling] and [the present RRT applicant] were ‘not very religious’.  

36. I also note that, while the applicant claimed he was restricted from practising his faith in the two Alawite mosques in Jabal Mohsen, he made no attempt to travel to nearby Akkar to observe his faith in Alawite mosques there.  It is reasonable to believe that someone as religiously observant as the applicant claimed to be would make some effort to go to Akkar which is only 34 km away.[3] I do not accept that he didn’t do this because there were killings in Akkar given there is no independent country information available to the Tribunal to support such a claim nor was any provided by the applicant.

    Targeting by Salafist Groups

    [3] >

    Because I have found that the applicant does not live in Jabal Mohsen or that he is an observant Alawite, it follows that he has not been targeted by groups involved in sectarian violence in the Jabal Mohsen area.  This finding was strengthened by several inconsistencies evident in his claims.

37. Although he claimed that he had been confined to his area of Jabal Mohsen since 2010 because there were checkpoints all around the area manned by IS and he was afraid of being kidnapped, the freedom of action that he claimed that IS had and has in Jabal Mohsen is inconsistent with country information that indicates the army takes a hard line on Islamists within Jabal Mohsen.[4]  I also note that, although he was insistent that it was IS manning checkpoints in Jabal Mohsen in 2010, they didn’t adopt that name until July 2014[5] and predecessor groups didn’t start ti infiltrate into Lebanon until after mid-2011.[6]

    [4] >

    This fear of being unable to move is inconsistent with the actions of his parents who he claimed had gone to [Country 1] but returned to Jabal Mohsen in 2014.  It lacks credibility that if the situation were as grim as he claimed, that his parents would voluntarily return to the area.  I do not accept that they did so even though they were still at risk

38. Because I do not accept that the applicant lives in Jabal Mohsen I also do not accept that his house has been targeted and damaged three times, nor that he was driving behind a bus on which several of his Alawite friends were killed.  I lend little weight to the photos he provided that appear to indicate some fire damage to a bathroom and some indistinct photos of damage to some parts of a building.  The photos have no date/time stamp and there is nothing to indicate where or when they were taken, nor does the applicant appear in any of them that would at least allow the Tribunal to see that they had some personal relevance to him.   

39. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

40. Because I do not accept that the applicant lives in Jabal Mohsen, is an observant Alawite, was or will be targeted by Islamic State or other Islamists, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

41. Therefore, I do not accept 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 that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

42. 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).

43. 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).

44. 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

45. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

    2.        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).

    3.        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’).

    4.        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 – to the extent that they are relevant to the decision under consideration.