1413247 (Refugee)

[2015] AATA 3150

1413247 (Refugee) [2015] AATA 3150 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413247

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:9 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2015 at 2:50pm

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

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] February 2014 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 24 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant‘s son. 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 her registered migration agent.

   CLAIMS AND EVIDENCE

   Protection Visa Application

5. The applicant claimed that she had been in a forced marriage to her dead husband’s brother to whom she had [children] on top of his [children].  This husband died and many of her children left home after they were raised.  One of her sons came to Australia and on her last visit to him one of her step-children told her not to return as she wouldn’t have anywhere to live any more as she was only allowed to live in the house while the step-children were unmarried.

   RRT Hearing

6. The applicant was asked whether she understood what was told to her during the introductory remarks and said that she did.  She was asked if she was medically capable of attending the hearing as there was nothing in her file to indicate that she wasn’t.  She agreed that she was right to continue the hearing.

7. She claimed that if she returned to Lebanon she would be assaulted and thrown out of her house by her step-sons.  They would do this because they wanted the house and everything for themselves, and they had entered the house and tried to kill her previously.  She had had this fear since her husband had passed away, which was when the step-children began persecuting her.  Her husband had died 16 or 17 years ago.

8. She then said he had died four or five years before she came to Australia.  During the time between his death and coming to Australia, she stayed in three houses in the same village owned by people who let them stay out of charity.  [One] daughter was with her all this time but she now lived in [another country] with her husband.  When the applicant came to Australia, her daughter went back to[the other country].

9. It was put to her that she had not previously mentioned that she had lived in three houses before coming to Australia, and she claimed that nobody had asked previously.  It was put to her that it was reasonable that she may have raised this previously without being asked; she claimed that the Tribunal could ask any question.

10. She had no documents relating to the property ownership and claimed that she could not get any.  She was asked if there was any way that she could prove that her stepchildren owned the family house and she said that she could not.

11. She was advised about s 424AA and she was advised that she arrived [in] July 2012 but didn’t apply for protection until [February] 2014, nearly 18 months after she arrived and had spent a period of time illegally remaining in Australia.  The Tribunal had a concern that the delay in applying for protection may have been because she feared no harm on return to Lebanon.  If she had been expelled from her house and had to live in three houses over several years on charity it is reasonable to believe that she would have tried to claim protection in Australia soon after arrival.

12. She claimed that after her [surgery] in Lebanon she had to be treated for [medical condition] in Dubai.  She was asked to answer the concern about the delay in applying and said she had been sick and was constantly taken to doctors in Australia.  The doctor recommended that she not travel by plane.  Asked why she delayed applying and stayed illegally, she claimed she was going to return but was sick and was constantly going to doctors.

13. It was also put to her under s 424AA that she had made no adverse answers to her health questions on her tourist visa application which was inconsistent with her claim to have undergone [surgery] and had been sick in Lebanon and since she had been in Australia.  The first document from a doctor the Tribunal was dated November 2013 nearly 18 months after she arrived which was inconsistent with the amount of medical visits she claimed to have undertaken. 

14. She was asked for copies of other medical documents that may support her claim to have been seeing doctors regularly to such a degree that it stopped her applying for protection.  If she was unable to prove this the Tribunal may find that she had deliberately exaggerated her medical condition to explain her delay in applying for protection.  She claimed she did and she was asked to supply them.

15. The applicant appeared as a witness and claimed that the applicant had nowhere to live in Lebvanon.  Before she came to Australia, her son-in-law had told her that there was no room in the house for and she should stay with her family in Australia.  He confirmed that until the time that she left Lebanon to come to Australia she was living in the family (step-children’s) house.  They had continued sending her messages no to return since the applicant had been in Australia.

16. The delay in her applying for protection was because he didn’t know protection was [possible until his wife had found out the process.  He agreed she had been here illegally for a while.  He was asked why they hadn’t done research at the earliest opportunity as to her options to stay in Australia given the danger he claimed she was in in Lebanon.  He claimed he tried to extend her visa when it expired but wasn’t allowed to and he was told she would have to leave the country and apply again.

17. He was told that the applicant had been asked to provide a copy of the medical appointments she had attended in Australia.  The only document the Tribunal possessed was one from November 2013.  He claimed he paid for her himself and he had no record.  He was advised that he should have receipts, prescriptions or other documents and it was up to him to establish her claim.  He was asked if there was a copy of the title to the house and he claimed it was in the name of his grandfather.

18. It was put to the applicant under s 424AA that her son had claimed she had lived at the family house until she came to Australia but this was inconsistent with her claim that she had been kicked out of the house four to five years previously and had to live in three different houses in the village prior to coming to Australia.  This could again raise questions as to whether she had any dispute with her family in Lebanon.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The applicant is a [age] year old widowed Lebanese woman.  The Tribunal has sighted her passport and accepts that she is a Lebanese citizen.  She had visited Australia twice previously and arrived most recently [in] July 2012 on a six month visa.  She overstayed the visa illegally and lodged a protection visa application [in] February 2014.  She claimed that she had nowhere to live and no one to look after her if she returned to Lebanon and that she would be barred from living in the family house and assaulted by her step children.     

20. 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.

21. I found the applicant’s evidence regarding her claims to generally lack credibility.  For reasons set out below I did not find the applicant to be a reliable or credible witness.  I have taken into account the applicant’s medical conditions and am satisfied that she was quite capable of attending the hearing.  There is nothing in her medical documents to indicate a loss of memory or an inability to attend the hearing, and she agreed when asked that she was capable of attending the hearing.  I do not accept that any of the credibility concerns the Tribunal had regarding the applicant could be accounted for by medical reasons. 

22. Although the applicant was given until 30 June to provide post-hearing evidence, none was received until 9 July.  Regardless I took them into account but lend them little weight.  I have referred to the medical document below.  There was another Arabic-language document although the covering letter did not indicate what it pertained to and two documents accompanying it was corrupted.  Given the degree of inconsistency in the applicant’s claim and the delay in applying for protection I am not satisfied that there would have been any document that could have been of sufficient weight to change the Tribunal’s view of the applicant’s credibility and the plausibility of her claim.

    Relationship with step-family

23. I am not satisfied that the applicant has a poor, let alone abusive relationship with her step-children.  She was inconsistent in her description of her accommodation arrangements.  In her statement to DIBP she only mentioned that she had been told by her step-son that she could not live in the house when she returned to Lebanon.  This was also what her son (who appeared as a witness) said at the hearing.  The applicant however, claimed that she had been kicked out of her house after her husband had died four or five years previously and had had to live in three different houses in the village provided through personal charitable acts until she came to Australia.

24. I do not accept that this inconsistency is because she had never been asked the question previously.  It is reasonable to believe that such a significant event and the repercussions of that event for several years until her arrival in Australia would have featured prominently in her claim.  It also lacks credibility that her son would not have known that she had been living in charitable accommodation for years.

25. Because I do not accept that she had a poor relationship with her step-children to the point they threw her out of the family house, I also do not accept that they had previously entered the house and tried to kill her or had in any other way harmed her or sought to harm her, or that they would not look after her on her return to Lebanon.. 

26. The Tribunal’s finding that she did not have a poor relationship with her step-family to the point she feared serious harm is strengthened by the delay in her applying for protection.  Despite claiming to have been excluded from her home and the target of deadly force in Lebanon, she waited for nearly 18 months after she had arrived in Australia (during which she had remained illegally in Australia for a time) before she applied for protection.

27. It is reasonable to expect that someone to whom such threats had been made and violence extended against would have sought Australia’s protection shortly after arriving.  I do not accept that this was because her family in Australia didn’t know this option was available given the information is easily sourced through the internet or via a migration agent if one simply attempts to make basic inquiries.  I also do not accept that she was too busy seeing doctors during this period to apply for protection. 

28. The only medical evidence provided to support this claim is a letter from a doctor dated [November] 2013 and a post-hearing letter from her GP simply saying he had been treating her for a number of medical conditions since 2013.  Even though she was given the opportunity to provide evidence to support the claim, there is no indication that she had been subject to a regime of doctor’s visits so strict as to preclude her from lodging a protection visa.

    Medical Condition

29. Although the applicant has claimed to be suffering from a range of medical ailments I note that in her protection visa application she made no adverse comments regarding her health questions.  Regardless, she can be easily treated for whatever ailments she has on return to Lebanon given that country information indicates that ‘Lebanon boasts the highest rate of physicians per capita in the Middle East, and treatment in every specialty is available in the country. Universities train very skilled physicians and investments have been made in order to lower the healthcare price level.’   I am not satisfied that her returning to Lebanon and utilising the Lebanese health system reaches anywhere near the threshold for serious harm for Convention purposes.

30. 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

31. Because I do not accept that the applicant has a bad relationship with her step-children, that they have or will remove her from the family home, that they have or will harm or try to kill her, or that she would be unable to access an adequate medical system in Lebanon sufficient to meet her needs, 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).

32. 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 she will suffer significant harm.

    CONCLUDING PARAGRAPHS

33. 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).

34. 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).

35. 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

36. 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.