1413343 (Refugee)

1413343 (Refugee) [2015] AATA 3463 (21 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1413343
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Josephine Kelly
DATE:21 September 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 21 September 2015 at 2:52pm
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 claims to be a citizen of Lebanon. He applied for the visa [in] June 2013 and the delegate refused to grant the visa [in] July 2014. The applicant provided a copy of the delegate’s decision record to the Tribunal.
The applicant appeared before the Tribunal on 4 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
SUMMARY OF THE 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.
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.
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’).
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.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
The issues in this case
The issues in this case are whether the applicant’s claim to be a bisexual Muslim is credible, and if so, if his circumstances and the country information satisfy either of the protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The following findings are based on information that the applicant has provided and are not contentious.
The applicant was born in [his home town] on [date]. He is a citizen and national of Lebanon and holds a passport issued by that country.
He is the third youngest of eight [children], three of whom live in Australia and are married to [Australians]. His oldest [sibling] also married an Australian citizen and lived here until 2009 but returned to Lebanon. His father and mother live in Lebanon. His other three [siblings] live in Lebanon.
He has undertaken [number] years of education and speaks, reads and writes, English, Arabic and French. In Australia, he has completed an advanced diploma of [Subject 1]. At the time of he was enrolled in a course for a diploma of [Subject 2]. He is an avid [sport] player.
The applicant arrived in Australia holding a student visa [in] February 2008. He was granted further student visas [in] June 2010 and [in] September 2012. The latter visa remained in effect until [October] 2013.
For about the first one a half years the applicant lived in Australia with his older [sibling]. He then shared a flat with two friends. About eight months before he lodged his visa application, that is about November or December 2012, he began living on his own.
The applicant attended a departmental interview [in] December 2013. A recording of the interview is before the Tribunal. The decision record the applicant provided to the Tribunal includes a useful summary of what happened during the interview.
The applicant has not returned to Lebanon since he arrived in Australia.
The applicant’s claims for protection
The applicant’s claims in his visa application
The applicant made the following claims in his visa application form.
He fears that he will be harmed if he returns to Lebanon because he is bi-sexual. He will not be safe in Lebanon and will not be able to express himself freely as a bisexual, especially in the area from which he comes.
The Lebanese government does not support homosexuals or bisexuals. If bisexuals openly express their sexuality, they can be imprisoned and harmed while in jail.
Lebanon is a predominantly Moslem country. If he returns he would not be accepted as a bisexual by the Moslem community, including the Moslem community in his local area. He fears that he will be physically and verbally abused by Moslem religious groups and other Moslem people in his local area if they now of his sexuality. Bisexuality is forbidden and unacceptable in the Moslem culture of his country.
The applicant has no support from his family if he was to return to Lebanon as they do not accept his sexuality. They may force him to marry if he returns. He knows that because when his mother and father came to Australia in late 2012, his father tried to get him to marry various Lebanese Australian girls. He fears that will be forced upon him if he returns to Lebanon.
He fears being physically and verbally attacked by other Moslems if they were aware of his sexuality.
He thinks the government authorities would also harm him if they found out that he was bisexual. He would be imprisoned because of his sexuality. He will be physically beaten and abused whilst in prison as the authorities see bisexuals as criminals. Bisexuality is a crime in Lebanon.
If he openly expressed his sexuality or entered into a relationship with a man, he would definitely be ostracised, arrested, beaten and imprisoned. He could not practice his religion at the same time as a being open about his sexuality.
Claims made in statutory declaration of [July] 2013
In a statutory declaration received by the Department [in] July 2013 the applicant made the additional or different claims. Moslem men in Lebanon are expected to marry women and typically marry in their early twenties and have a family. At the age of 16 or 17, the applicant realised that he cannot spend the rest of his life with a girl because he is also attracted to men.
At the age of 17 or 18 he had his first sexual experience. It was with a male friend of his who lived in the neighbourhood and was about four years older. He had known him since he was a young child. They used to watch movies together, sometimes pornographic movies. Once a sexual atmosphere developed and they began to engage in sexual activities with each other. At first the applicant wondered what he was doing, given his Moslem upbringing. But he came to feel that this was really him. They continued to see each other regularly, in a sexual way, for about four of five years and when he came to Australia he was the only man that he had a sexual relationship with in Lebanon. They kept their activities secret. If people had found out about the relationship, the people in the community, his relatives and other Moslems would have regarded what he was doing as a big sin. He feared that they would try to harm him. At the mosque they were taught that homosexuality was a sin, and that anyone engaging in it is not a Moslem. He had heard about homosexuals being beaten up and arrested. He heard that they had been raped in prison.
For those reasons his friend and the applicant got together late at night. For example they would go into the forest or to his friend’s house when his parents were not home.
The applicant had his first sexual experience with a girl when he was about 19. He met her at a party. He saw her a few more times and had a sexual relationship with her.
The applicant became very confused. He felt equally attracted to men and women and was unable to make a choice. He continued to see the girl for two years until he travelled to Australia, and continued seeing his male friend. He had ongoing sexual relationships with both of them. Neither of them knew about the other. His relationship with the girl was public. He felt guilty about cheating on her. His relationship with the male was different. They got together more for fun than commitment.
Since being in Australia the applicant has been scared of telling anyone that he is bisexual. All his Australian friends are strict Moslems who would not accept him if they knew he was attracted to men. He was also scared that his family in Australia would find out and would reject him. He has felt very torn about wanting to stay close to his family and friends on the one hand, and to pursue sexual relationships on the other. This cannot continue forever.
The applicant has not had any relationships with men in Australia. He sometimes felt very attracted to men and in Australia wanted to get involved sexually but so far none of them has been gay so he is not acting on those desires. But sooner or later he is sure he will be attracted to a gay man and will have a relationship with him. If that happens he will probably lose a lot of his friends.
He would also like to have relationships with women but has not yet found someone whom he likes and he does not want to cheat on someone again like he did with his girlfriend in Lebanon. He does not feel that he could develop a relationship with a woman while he is still attracted to men.
Since being in Australia, sometimes he has bought gay magazines or looked at gay websites or downloaded gay movies.
In December 2012 one of his [siblings] got married in Australia and his parents came from Lebanon for the wedding. A few days before they arrived one of his [siblings] were seriously hurt in [an attack]. His parents stayed for the wedding and then his mother took his injured [sibling] home to Lebanon. His father stayed in Australia for about six months and returned to Lebanon or [in] May 2013.
His father often used to telephone him asking when he was going to get married like his [siblings]. Even his younger [sibling] is married already. It was easy to ignore this when he was in Lebanon but it was harder when he was in Australia. His father used to nag him and tell him about girls in Australia he knew that he said the applicant should think about marrying. The applicant used excuses, saying things like the girl was not his type, or he was not ready yet. The reality is he cannot get married because he wants to continue having relationships with men. Eventually the applicant could not put up with the nagging anymore and told his father that he was bisexual. He knew he would be angry and not accepting but he could not handle it anymore, and being in Australia felt more confident to say that. His father could not do anything to him in Australia. His father told him that he was no longer his son and that he would not support him. The applicant tried to talk to him and fix the situation but his father would not change his mind.
A few weeks later his father went home to Lebanon. The applicant has spoken to him by telephone a few times to try to get him to change his mind about the applicant but it has not worked. His father is strict about religious issues. His father has not told anyone else that the applicant is bisexual because it would be very bad for his own reputation and for the family in the community.
Since then, the applicant has been unable to focus on his studies. His become anxious and depressed. [In] May 2013 he was feeling so bad that he feared he might harm himself, so went to the emergency department at [a] Hospital. They considered that he was suffering from anxiety and depression and recommended medication. The doctor offered to write a prescription but the applicant declined because he did not want to take it. He plays [sport] regularly and takes care of his physical health and is concerned that medication would affect him and he might become addicted. He has never taken prescription medication. His depression remains serious. He is not sleeping, has lost weight and he was planning to see a counsellor and considering getting the medication at the time of his statutory declaration.
While the applicant was in hospital he told them about his situation and they gave him information about where to get legal advice. That is how he came to apply for protection.
The applicant fears that if he returns to Lebanon he will be forced to the live as a bisexual in secret. If he lives openly as a bisexual, he fears that he would be harmed by his family or people in the community. He could not go to the police because it is against the law to have sex with another man. He fears that he could be arrested by police and possibly beaten or raped.
Statutory Declaration dated 27 July 2015
The applicant made the following additional or different claims in a statutory declaration provided to the Tribunal on 27 July 2015.
His father ceased supporting him financially shortly after he applied to undertake a Diploma of [Subject 2] course. His father was also considering supporting him completing a Bachelor of [Subject 1]. But once he disclosed to him that he was a homosexual he refused to continue supporting him financially.
When he was about 16 he had the first sexual experience with a man. They shared a sexual relationship approximately three to four times. It was with his older cousin who was about four to five years older than he is. His name was [name]. He did not say that at his protection interview because he was worried that it would be discovered by his family. His cousin is now in a different life, married with children, and the applicant did not want to bring up this issue which might have affected his life.
When he was 17 years old he had a second sexual experience with younger cousin who was about to use your, his name was [name]. They used to watch movies together, sometimes pornographic movies. Once watching a movie a sexual atmosphere developed and they began to engage in sexual activities with each other. They continued to see each other regularly in a sexual way for four or five years until he came to Australia. He did not disclose his younger cousin’s identity again because he was worried about the harm it would bring to him or to the applicant from their families. After the departmental interview the applicant contacted him and asked him to send a confirmatory email or letter about the relationship. His cousin told him he could not because he was studying and did not want to ruin his reputation or get into any trouble in Lebanon.
Even now the applicant is too scared to name them in full in this application because he is worried it could be published or shared.
They had kept their activities secret because if people found out he was in a sexual relationship, people in his community, his relatives and other Moslems would have regarded that as a big sin. He feared that they would try to harm him. At his mosque they were taught that homosexuality is a sin and that anyone into engages in it is not being a Moslem. He had heard of homosexuals being beaten up and arrested and raped in prison. That is why they went to places such as the forest or his cousin’s home.
The applicant has never had a sexual relationship with a girl. He had a relationship with a girl when he was about 18. He met her at a party and they started speaking to each other. He saw her a few times after that within about a year. It was not a true relationship. It was not love. He knew that she liked him and they had fun together. [His cousin] knew about this relationship but knew that it was not sexual. He thinks he understood that he had to do that for his public reputation.
The applicant became very confused and did not feel able to make a choice. His relationship with the girl was public. They were perceived as boyfriend and girlfriend. He felt very guilty about effectively cheating on her and that is why the relationship broke down. His relationship with [his cousin] was different because they would see each other almost daily.
The applicant is not really sure why he said he had a sexual relationship with the girl. He is sorry he said that. He thinks he said that out of fear and worry. He cannot explain why he said that except that he did it out of protection for himself and his family.
In 2005 when the Prime Minister of Lebanon, Rafiq Hariri was assassinated, the applicant’s father became concerned about the political stability of Lebanon. Because the applicant was the only child of the family who had completed school, his father thought it would be best if he left the country to build a life elsewhere. They decided he should come to Australia because three of his [siblings] and their families already live there here.
When he arrived here [in] February 2008 on student visa, he lived with his older [sibling]. He began studying for a Certificate 4 in [Subject 1] and went on to do a diploma in [that subject] and commenced a diploma in [another subject] which he discontinued due to illness. Later he enrolled in a diploma in advanced [Subject 1] which he completed in 2012. He commenced a diploma of [Subject 2] but later withdrew as he could no longer afford the fees because his relationship broke down with this father.
At first he lived with his [siblings] at their places. The applicant moved to his own place in approximately November 2012 where he continues to live.
The Lebanese community is very strong in Australia. Anything he does in Australia in the public sphere can and will get back to his family. The applicant in Australia he has not been able to fully participate in his life as he would like it to be. He felt very torn about wanting to stay close with his family and friends on the one hand, and wanting to pursue sexual relationships on the other. But this cannot continue forever.

He has not had any relationships with men in Australia. He has sometimes felt very attracted to men in Australia and has wanted to get involved in sexually but so far none of them has been gay.
The applicant did start to develop feelings for one man and thought of disclosing his feelings to him but panicked. He had developed strong feelings for him over two years. One afternoon after a [sport event] they went back to his place. The applicant was thinking about telling him about his feelings as he treated the applicant differently from his other friends. The applicant went to hug him when they were alone and he reacted very badly, pushing the applicant away. For a number of weeks following that, his friend would not speak to him, saying that the applicant is gay. The applicant pleaded with him saying that he was not gay and just wanted to hug him like a [sibling]. Eventually his friend accepted his excuses and they are still friends but that only made the applicant more scared to reveal his sexuality to his friends, particularly those who are connected to the Lebanese community and his family. Earlier this year his friend got married and so the applicant is relieved that he did not disclose his feelings to him and risk his safety.
A few weeks before his father left to return to Lebanon [in] May 2013, the applicant could not handle his father’s nagging anymore and felt more confident to tell him that he was attracted to men. His father has not told anyone else that the applicant was bisexual. If the applicant’s father reveals to his [siblings] that he is bisexual, that could have a huge impact on his life and he might be in danger. The applicant thinks his father is also wary about protecting him. That is why he has not told the extended family.
Since that happened he has been unable to focus on his studies and has become anxious and depressed. He recounted his visit to the emergency department at [the] Hospital in May 2013. He now sees a psychologist regularly. While he was in hospital he told them about his situation and they gave him information about where to get legal advice and that is how he came to know about applying for protection.
Since the departmental interview the applicant has continued his counselling as his fears are having a huge impact on his mental health. The applicant’s parents returned to Australia in March 2015 and have a visa to remain until approximately September 2015. The applicant was so worried about seeing them, particularly his mother who wanted to see him but he did not want to see her. He is her favourite son. The applicant told his father not to tell his mother as he did not know what was going to happen.
The applicant went to visit his mother [in another state]. He told them he was very busy and just came to visit her, telling her everything is fine and that he is just not ready to get married when they asked. He went to see his mother only because he knew his father would be in Sydney at that time. He spent five days with her and now just speaks to her on the telephone. He just pretends to her that everything is normal, but could only do that due to his support by his psychologist. He was incredibly anxious and worried about his parents being in Australia. He is incredibly anxious about sharing the truth. It is with the support of his psychologist that he feels able to share the truth today.
Sometimes the applicant regrets having told his father. He feels it would be easier to keep his sexuality to himself. His father knowing gives him great anxiety as there will be no protection.
He asked his father to write a letter telling the applicant how he feels and how he will not support him in Lebanon if he returns, but he refuses. His father says he does not want to take any responsibility for the applicant.
His father has told people that the applicant is applying for protection in Australia due to the situation in Lebanon because people found out that he was not studying any more. The applicant thinks that his father will not tell anyone about the truth to protect his reputation and their family.
If he returns to Lebanon the applicant fears that he is attracted to both men and women and wants to live his life as a bisexual man. Presently, he is most attracted to men. He does not see himself being able to have a relationship with women as he will always still be attracted to men.
If he returns to Lebanon he would be forced to live as a bisexual in secret. He fears that if he lived openly he would be harmed by his family or people in the community and could not go to the police because it is against the law to have sex with another man.
While living under those fears, he cannot be open about his sexuality in Australia. He has to continue to live in the shadows as he has no protection if he is forced to return to Lebanon.
The applicant fears being arrested by the police and possibly beaten or raped.
Documents
In support of his application, the applicant provided to the Department a medical report from a clinical psychologist dated [in] November 2013 and country information about gays in Lebanon, including a 56 page Human Rights Watch report “It’s Part of the Job”, Ill-treatment and Torture of vulnerable Groups in Lebanese Police Stations.
The applicant provided to the Tribunal a copy of the delegate’s decision dated [in] July 2014, an eleven page submission, and a pre-hearing submission declaration made by the applicant, stating that the submission had been read and explained to him and that the submission together with submissions previously submitted to the Department accurately and completely present his claims.
On 3 August 2015, the applicant provided a letter from a Clinical psychologist dated [in] July 2015.
The applicant provided a post-hearing submission on 18 August 2015 which addressed modification of behaviour, prior inconsistent statements, “submissions on the Member’s proposed theory”, and included a discharge record from [the] Hospital dated [in] May 2013, a letter signed by a Psychiatric Registrar and a Registered Nurse at [a] Health Centre dated [in] June 2013 stating that the applicant attended an appointment with the psychiatrist on [in] June 2013 and describing his symptoms and giving a diagnosis, and what was described as a “letter of instructions” from the treating clinical psychologist dated [in] August 2015.
Consideration of Claims and Evidence, and Findings
The applicant has stated consistently that his father left Australia to return to Lebanon [in] May 2013 and that he told his father about his bisexuality a “few weeks” before his father left.
The applicant attended [the] Hospital four days later [in] May 2013. The “ED Discharge Referral” states the diagnosis as “Depression (Discharge). The patient history includes a “4 month history of depression” with “suicidal thoughts today”, a number of symptoms including “tearful, low motivation, poor attendance at his classes recently”, “Anxiety surrounding threat of being deported back to Lebanon”, “family have recently cut him off from financial support as he has refused to marry, due to his sexual preferences”, “he fears returning home to Lebanon, and the repercussions he will face there”, “he would like to commit suicide, rather than be sent back to Lebanon, and will do so if he finds out that he cannot stay in Australia”, “Since his family are no longer financially supporting him, he can no longer pay rent, and fears being homeless”.
The list of “issues” includes financial, immigration, “may be deported home where he will be shunned by community due to sexual orientation”, “risk of homelessness as funds run out”, “social isolation, no friends or family supporting him at present”.
The applicant was deemed safe for discharge, provided with some material, and with a plan to be followed up the next day “and coordinate social worker services”.
The letter signed by a Psychiatric Registrar and a Registered Nurse at [the] Health Centre dated [in] June 2013 stating that the applicant attended a psychiatrist’s appointment [in] June 2013, had the applicant’s name and address on the top left hand side of the letter. Below his name and address were the date, and then the name of the health centre. The letter was addressed to “To whom it may concern” “Re: [the applicant]”.
The applicant applied for protection [in] June 2013.
The clinical psychologist wrote “To whom it may concern” [in] November 2013 that:
This letter is written to comment on the mental health condition of the above client of mine and it is believed to be of relevance to substantiating the ground for his visa application. I understand that it will be referenced in such legal proceeding”.
She wrote that “…disclosure of his sexual orientation is met with radical family resistance leading to his father’s immediate withdrawal of sponsorship support and study fund for his continuation of study course and student visa (implications incl acute needs for accommodation and daily expense support as pressing and loss of study opportunities and increased unstructured time with limited goal/meaning due to a high sense of uncertainty about his academic/visa/financial/social situation); that loss of peer association/support (due to financial indebtedness to his peers after withdrawal of family support) and fear of potential peer/cultural/religious stigmatization against his sexual orientation has been experienced”.
She said that his response to his situation “was accentuated by the paucity of social support (due to sexuality-related stigmatisation in his social/cultural context) given the unexpected/sudden change he needed to cope with”.
In her letter of [August] 2015, the clinical psychologist stated that the letter was written at the request of the applicant’s solicitor in relation to this matter “to provide further clarification as to” her knowledge. The applicant presented to her practice “with the subjective complaint of fear of potential risks of harm from oppression in his home country due to his bisexual orientation”.
It is striking that there is no mention in any of the medical reports or records of the [attack on] the applicant’s [sibling] which occurred [in] November 2012.
Following is what the applicant told the Tribunal at the beginning of the hearing:
·His [sibling] [Sibling A] was getting married in Sydney in December 2012.
·His [sibling] [Sibling B] had married an Australian citizen and left Australia in 2009. The applicant lived with [that sibling] until then. [Sibling B] returned in 2012 for [their spouse to visit] family. [This sibling was attacked].
·Their parents were coming to Australia for [Sibling A’s] wedding and arrived a few days after [Sibling B] was [attacked]. [Sibling A] was going to put off the wedding but when [Sibling B] regained consciousness after an operation, [Sibling B] told [Sibling A] to enjoy [the] wedding.
·The applicant did not go to the wedding because [his sibling’s serious injuries] depressed him. It really affected him and his study as well. He was very upset. “You cannot imagine what I went through.” [Sibling B] was about to die. [Sibling B] was in [another] hospital. There was security to protect him. The applicant could not [visit] for two weeks. Their mother took [Sibling B] back to Lebanon at the end of December or [in] January after going to [Sibling C’s] place [interstate] for a few days. His father stayed in Australia.
·[Sibling B] was in the wrong place at the wrong time. It was the afternoon. The applicant was in [a] Store in the city. He had miscalls and messages on his telephone. They told him his [sibling] had died. He went crazy. He found out that the other person had died when he got back to his place.
·The wedding was [in] December. [Sibling A] called him and asked him to go. He did not go and his parents went for only an hour so.
·The applicant is very much part of the community in which he lives. He has some good mates.
·He could not continue studying for the diploma of [Subject 2] because his [sibling] [had been seriously injured] and he could not focus on his studies. He fell apart when [his sibling] was [injured] and could not study. Later at the hearing, the applicant said that did not resume studying from January to May 2013 because the [attack] really affected him and the director of the college knew about it.
The applicant also said that after a few months his father was nagging him to get married. His father had promised to fund his studies for a Bachelor of [Subject 1] beginning in August 2013. He was going back to finish his diploma of [Subject 2]. That completely stopped when he revealed his sexual orientation to his father who said that he was not going to support him anymore.
Four days after his father left, the applicant “could not handle it” and was going to commit suicide at that time when he was to [the] Hospital [in] May 2013. His mother did not want him to go back to Lebanon. “They” wanted him to move to live with one of his [siblings] [interstate]. He did not agree. He has a lot of friends here. He was just trying to move away from his family. He was in prison in his room and did not go anywhere and could not do anything. He did not go to college. He was so upset. His friends supported him a lot. He has a lot of good friends in the area. There is a [mosque nearby]. When he needs something, he prays and asks God. He went through a lot of things. His friends go to that mosque.
He loves [sport]. He trains [on weekdays] and plays on Saturday. He is a coach. He resumed playing this year. He had been playing [sport] before [Sibling B] was [attacked]. He organised his own team in 2014. Before that he played for a [local] team and in 2015 played for a [different local] team. He also played [a related sport] throughout the year every single [week], and in a [nearby] park [location] with friends, not in a competition. He has lots of friends. They are multicultural. He has established his own life in Australia.
The applicant said that his father was staying [interstate] until he left in May 2013 but came to Sydney to visit his [relatives]. His parents were in Australia again at the time of the hearing in 2015. He had seen his father a couple of times. They just pretended everything is normal. He was worried and took a month before seeing his mother [interstate], just saying he was busy. In front of his mother and [sibling] everything is normal. His father is so upset you cannot imagine.
The Tribunal does not accept that the applicant’s account of his medical history to the hospital or to the clinical psychologist was consistent with what had actually happened to him. It does not accept that he was truthful in giving his history to those treating him but fabricated the claims about his sexuality and sexual history. That there is no identifiable reference to the [attack on] his [sibling] and the clear trauma it caused to the applicant and the consequences, including not being able to focus to study, is inconsistent with the applicant’s having given a genuine history. In making that finding, the Tribunal has taken into account the submission about the member’s “case theory” and the argument that he did not need to seek medical attention until after the conflict about his refusing to marry and the disclosure of his sexuality. However, the Tribunal does not accept that submission because it does not accept that the applicant’s evidence about his sexuality is credible.
The Tribunal finds the applicant’s claim to that he was unable to study because of his father’s reaction to being told that the applicant is bisexual is inconsistent with his evidence at the hearing that he was unable to study because of the [attack on] his [sibling]. His evidence was that he only told his father about his sexuality a few weeks before his father returned to Lebanon [in] May 2013, that is, in late April or early May. He told the Tribunal that he had not studied from January to May 2013, following the [attack]. His not attending classes was not caused by his father’s reaction to his sexuality.
There is no reference in the discharge record to the [serious attack], although it reports a four month history of depression which is inconsistent with the applicant’s claim about his family’s reaction to his sexuality causing his depression. That disclosure occurred only a matter of weeks before he went to the hospital at the end of May.
The reference in the discharge record to his “social isolation, no friends or family support him at present” is inconsistent with his repeated claims about his friends and how they supported him and how he did not agree to move to [either state] because he had established a life of his own in Australia. The Tribunal finds the references in the clinical psychologist’s reports of 2013 and 2015 to his “loss of peer association/support (due to financial indebtedness to his peers after withdrawal of family support” and the “paucity of social support (due to sexuality-related stigmatisation in is social/cultural context)” is also inconsistent with his evidence about his friends, their support for him, and his life in Australia. The claim about financial indebtedness is also inconsistent with the applicant’s evidence that he got Centrelink benefits when he applied for protection. He made no claim in any of his written or oral evidence to have been indebted to friends or to indebtedness having led to a loss of peer association/support.
The applicant claims that only his father knows of his bisexuality, apart from his two former male lovers in Lebanon, the first of whom is married.
The Tribunal accepts that he has conflict with his father and his mother but does not accept that it is about his sexuality. It accepts that his father was nagging him about getting married and that he does not want to get married to anyone, including the people his father suggested. Further, he did not agree with his parents’ demand that he move [interstate] because he had established his own life in Sydney as he described it with his friends, including playing lots of [sport]. The Tribunal accepts that the applicant has established his own life in Australia and does not want to be told how to live his life by his family. It accepts that he wants to move away from his family as he said. The Tribunal accepts that that conflict may have resulted in his father deciding not to fund his further study. It is notable that his father had funded him to study four courses, from 2008 until and including at least the first semester of 2013, and including the second course from which the applicant withdrew because he was sick, or depressed, in about 2011. According to the submission, the course payment had been made for the course he did not attend in 2013.
The Tribunal does not accept the applicant’s explanations and excuses or the submission’s explanation for his changing his evidence about the number of homosexual relationships he had in Lebanon or for his claiming in his first statutory declaration to have had a sexual relationship with a girl in Lebanon, but later claiming that he had not. The Tribunal finds those accounts were inconsistent.
It also finds that the applicant’s various accounts of where he engaged in his sexual activities in Lebanon inconsistent. The first claim was that he and his friend would get together late at night, for example, in the forest or go to his friend’s house when his parents were not home. At the hearing, the applicant said that in his first relationship, he had sex in his uncle’s shop where his cousin worked but it was difficult because his uncle was always there.
In relation to his second claimed relationship, the applicant said that they met at the applicant’s place, his cousin’s parents’ place, and the forest but most of the time at his place, and rarely at the forest. There was a building with a shop downstairs and three apartments, one of which was not rented. The applicant’s family had one apartment. The applicant saw his cousin nearly every single day during year 12. There was a three or four month holiday when they studied. He took his books to the third apartment. His cousin had a key and used to come. He also claimed that they had a sexual relationship daily and that the relationship continued for four or five years before he came to Australia. Having access to an empty apartment is very different from going someone’s “place”.

The applicant said that all his relatives, his uncles and aunts lived close to each other in [his home town]. They have land.
When the Tribunal pointed out that in Australia, the applicant had not lived with any relatives at least in 2011, 2012 and 2013, but had had no sexual relationship, in contrast to his active homosexual relationships in Lebanon, the applicant said that he was very worried that someone would see him in Australia. The Moslem community is very strict. If one of his friends knew, they would tell his [sibling] or father. It was safe with his cousin in Lebanon. In Australia he was living in a community everyone knows him.
When the Tribunal queried it being safe in Lebanon, the applicant said that now he had revealed his sexuality to his father he was worried and scared and sometimes regretted having told him.

100. The Tribunal finds the applicant’s claim that it was safe to have his ongoing and regular secret homosexual relationship over a period of four or five years in [his home town], inconsistent with the fact that his relatives all lived close by and his claims to have carried on the relationship in various locations including his cousin’s place and his place. If he was scared someone in Australia would see him, it is inconsistent that he would not have had the same fear in [his home town] such that it would have prevented him engaging in such activities.
101. The applicant’s claim for protection in Australia, is essentially that he cannot live openly as a bisexual in Lebanon for fear of harm from his family or the community and could not get protection from the police because it is unlawful to have sex with a man. He cannot be open about his sexuality in Australia because he does not have a right to remain here and is at risk of having to return to Lebanon. It is only if he has protection and can remain lawfully in Australia, that he can openly live as a bisexual here.
102. The Tribunal does not accept the applicant’s reasons for not having had any sexual relationship in Australia, in contrast to his having had two secret sexual relationships in [his home town], in the midst of his extended family.
103. For the above reasons, the Tribunal does not accept that the applicant’s claims to be bisexual or homosexual or to have told his father that he is bisexual or possibly homosexual, are credible.
104. For those reasons, the Tribunal does not accept the applicant’s claims that he is bisexual or a homosexual and does not accept that he has told his father that he is bisexual or possibly homosexual, or that he fears harm from his family, the community or the police or authorities in Lebanon for those reasons.
105. In making those findings, the Tribunal has taken into account the submissions but does not accept them, including relation to the assessment of credibility. The Tribunal finds that the applicant’s claims for protection have been fabricated.
106. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Lebanon.
107. 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).
108. 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).
109. The Tribunal is not satisfied that the applicant’s claims to be bisexual or homosexual are credible for the reasons given above. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm
110. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
111. 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
112. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Josephine Kelly
Member

[2015] AATA 3463

21 September 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction