1413571 (Refugee)

[2015] AATA 3398

1413571 (Refugee) [2015] AATA 3398 (9 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413571

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:James Jolliffe

DATE:9 September 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 09 September 2015 at 10:30am

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. STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. 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).

3. 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.

4. The applicant appeared before the Tribunal on 30 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   Relevant Law

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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.

    CLAIMS AND EVIDENCE

11. The Tribunal has before it the Departmental and Tribunal files relating to the applicant together with information available to it from a range of sources.

12. The issue in this case is the applicant claims to fear harm if he returns to Lebanon on the basis of his sexuality in terms of being a member of a particular social group of gay men.   The applicant had previously claimed to fear harm on the basis of ethnic extraction in that he claimed he was at risk of harm because his father had a Syrian background and also because he was a member of a particular social group in that he was a member of a wealthy family and was at risk of harm on that basis. The applicant also claimed to fear harm on the basis of his father’s claimed Syrian nationality. The applicant’s representative in written submissions to the Tribunal dated [in] June 2015, informed the Tribunal that the applicant’s claim for protection. “is based on his sexual orientation, being homosexual.”

13. For the following reasons, the Tribunal has concluded that the decision under review  should be remitted for reconsideration.

14. The applicant in his protection visa application claimed that he was born in Tripoli in [Lebanon]. He claimed he was of the Muslim faith, and he claimed never to have been married or been in a de facto relationship. He claimed that he had Lebanese citizenship and did not have any right to enter or reside temporarily or permanently in any other country other than Lebanon.  He claimed to have had a Lebanese passport issued to him [in] 2011. He claimed that he resided in Tripoli from 2000 to June 2012. He claimed to have arrived in Australia [in] June 2012. He claimed to have attended school in [Tripoli] and to have  undertaken studies in Australia. He claimed that he was not working in Australia and was continuing to study.

15. The applicant in his protection visa application, said that he left Lebanon to come to Australia to study and that he had initially been supported financially by his family. He claimed that when fighting started in Tripoli that his family and in particular his father had been threatened. He said that was because his father was financially well off and his father came from a Syrian background. The applicant claimed that his father’s business had been destroyed. He said his father had a “[business]  (sic), they blew it, they even kidnapped my brother asking for money”. The applicant claimed that the family home had been attacked and that his parents were afraid and that his parents and siblings had come to Australia on a boat. The applicant claimed as a result he had no family or anyone left in Lebanon. The applicant referred to his brother having been kidnapped and said that he was afraid that he might be kidnapped “or worse “if he returned. He raised concerns about who was “going to pay for me” if he returned and said he had no future in Lebanon and said “I am pretty sure they will do something to me”. He indicated that he fears harm from “the same people who did that to my family. The bulliers and people who hate my dad”. He claimed that if he returned he would face the same problems that faced his family and referred to people who he said “have no concepts they kill for living, if they want. They think my dad owes them. They kidnap my brother. They will do the same with me”. He said that he could not obtain protection in Lebanon and referred to the country being ruled by “militias or political parties” and claimed those people could get him and that if he returned he would be alone and homeless.

16. The applicant attended an interview with a Department delegate in relation to his protection visa application [in] February 2014. The delegate declined to grant the applicant a protection VISA and was not satisfied Australia has protection obligations to the applicant under the refugees convention or under the complementary protection provisions in the Migration Act. A copy of the delegate’s record of decision was provided to the Tribunal with the application for a review.

17. A letter was received from the applicant’s representative dated [in] April 2015 and it attached a copy of a relationship certificate for the applicant and [Mr A]. As indicated elsewhere in these reasons a further letter was received dated [in] June 2015 from the applicant’s representative and that letter informed the Tribunal that the applicant’s claim for protection is based on his sexual orientation, being homosexual. The letter contained submissions on the applicant’s behalf in relation to that issue. In summary that letter referred to “societal abuses, discrimination, and acts of violence, based on sexual orientation and gender identity” and extracted information in a report from “the Bureau of Democracy, Human Rights and Labour 2013, country reports on human rights for 2013, Lebanon”  in relation to gay people and difficulties faced by gay people in Lebanon. That report submitted “there were no government efforts to address potential discrimination”. The submissions also referred to and extracted information from a Voice of America report by Owens, J, 2015 (15 May) entitled “Lebanese LGBT group makes stand amid regional persecution”. The submissions included an extract from that report which said “although Lebanon  is seen as a relative haven compared with some of its neighbours, domestic discrimination remains rife” in discussing the situation for members of the gay community. The extract also notes that there has been some progress in relation to gay rights in Lebanon. The submissions referred to a report which referred to a Lebanese judge finding legislation invalid which had been enacted to criminalise gay sex and that was being used in a prosecution case in relation to a transsexual person. The submissions also referred to a report from  GayAsia News dated September 2014 which referred to Lebanese police endeavouring to entrap gay people by the surveillance of telecommunication communications. The submissions also referred to a report from Human Rights Watch 2013  entitled “Lebanon : police torturing vulnerable people” and claimed that police and internal security forces had engaged in mistreatment of people in detention and that included lesbian, gay, bisexual and transgender detainees. The report indicated that people who had been abused often had difficulty in reporting the abuse or in seeking redress for the abuse. The submissions indicate that the applicant seeks protection in Australia based on his “homosexual sexual orientation” and indicates that he is in a de facto relationship with [Mr A] and that type of relationship would not be tolerated in Lebanon. The submissions, in summary, suggest that homosexuals  in Lebanon are persecuted, notwithstanding that there has been some progress at the judicial level in dealing with invalid legislation in terms of the prosecution of members of the gay community. The submissions suggest the applicant is entitled to Australia’s protection.

18. The Tribunal received a further letter from the applicant’s representative dated [in] June 2015, which included a number of attachments in relation to the applicant’s claims. The Tribunal was provided with a statement by the applicant’s partner, [Mr A]. The Tribunal was provided with a copy of a relationship certificate registered in [State 1] and dated [in] August 2014 referring to the relationship between the applicant and [Mr A]. The Tribunal was also provided with a statement from the applicant dated [in] June 2015 referring to his relationship with [Mr A] as well as a copy of financial records of the applicant and which showed the transfer of funds by [Mr A] to an account operated by the applicant with the Commonwealth Bank. The attachments also included copies of correspondence from [a State 1 government department] addressed to the applicant. The letter indicated that that correspondence “evidences the de facto relationship of [the applicant and Mr A]”. The attachments also included copies of various photographs of the applicant and [Mr A] and of the applicant and other people who were described as friends. Those photographs were said to also evidence the de facto relationship between the applicant and [Mr A].

    TRIBUNAL HEARING

19. The applicant appeared before the Tribunal on 30 June 2015 to give evidence and present arrangements. The applicant was able to communicate with the Tribunal in the English language. The Tribunal also received evidence from the applicant’s partner , [Mr A ] provided a written statement, dated [in] June 2015 to the Tribunal. [Mr A], in summary, informed the Tribunal at the hearing that he had known the applicant since July/August 2012 and that he had met the applicant “on line”. [Mr A] described his relationship with the applicant as being “pretty strong”. He said he and the applicant had lived together for about 12 months. He said he knew that the applicant had come from Tripoli in Lebanon and that the applicant liked soccer and computers. He told the Tribunal that he had never met the applicant’s family and that was because the applicant did not want him to meet his family. He said he had a “basic” knowledge about the applicant’s family background. He confirmed that he had a relationship certificate and that that certificate had been obtained [in] August 2014. [Mr A] confirmed that he provided material and financial support to the applicant, and he referred to helping the applicant to undertake a course with a [college] in 2013. He told the Tribunal that the applicant had spoken to him about the possibility of returning to Lebanon and said the applicant was not looking to return and that he feared being by himself in Lebanon  and referred to being concerned if he returned to Lebanon about being gay.

20. The Tribunal received copies of statements from three people who knew [Mr A] and which, in summary, referred to [Mr A]’s relationship with the applicant. The statements were provided in support of the applicant’s claims and [Mr A]’s claims about the relationship with the applicant. The Tribunal was also provided with a [State 1 identity card] for the applicant.

21. The applicant gave evidence to the Tribunal. The Tribunal asked the applicant about his claims for seeking protection in Australia and referred to the protection visa application and the grounds referred to by the applicant in that application. He told the Tribunal that he had not referred to his sexuality in those claims because he was not aware that sexuality was a ground for seeking protection. He did not indicate to the Tribunal that he was any longer pursuing his previous grounds for seeking protection in Australia and told the Tribunal that his claim to fear harm was based around his sexuality and that he feared harm from his relatives in Lebanon and the Lebanese authorities on that basis, if he returned to Lebanon. The written submissions from the applicant’s representative dated [in] June 2015 and the letter [in] June 2015, which have been referred to earlier in these reasons also confirmed that the applicant was seeking protection in Australia on the basis of his sexuality.

22. He had not raised the claim of seeking protection on the basis of his sexuality during his interview with the Department delegate. He told the Tribunal that he only discovered that sexuality could be a basis for seeking protection before he decided to seek a review of the delegate’s decision with the Tribunal. He told the Tribunal that he had come to Australia to study and to follow a gay lifestyle. He was asked about his family’s background in Lebanon. The applicant had come to Australia on a student visa in June 2012. He claims that problems arose for his family in Tripoli, in around April 2013 and that those issues had been referred to in his protection visa application. He claims that his father has Syrian ancestry but the applicant was not sure where his father was born in terms of Lebanon or Syria. He claims his father had to give money to people associated with militia groups in Lebanon and he named some of those people to the Tribunal. He claimed his father had been threatened by those militias in Lebanon. He claimed that his father had stopped paying money to the militias in Lebanon and that was when his brother had been kidnapped. He essentially told the Tribunal that his father was paying protection money to the people associated with the militias He claimed that his brothers arm and some fingers had been broken when he was kidnapped but was not sure who had kidnapped his brother. He told the Tribunal that his father had not engaged in any political activities in Lebanon and that his father had not supported the Syrian government. The applicant said that he thought his father’s business had been taken over in Lebanon but did not know the circumstances. He said his father had [a] company. He said things had become worse for his father in Lebanon in terms of the militia and that his father  asked the authorities for help but the authorities would not help him. The applicant claimed that the militias had blown up [material for his business]. He claimed that the militias had threatened his mother and sister and that the family had then decided to leave Lebanon and went to [another country] before coming by boat to Australia.

23. He said his father is of the  Sunni Muslim faith. He told the Tribunal that he was afraid to return to Lebanon because he would face harm from his relatives, who he described as strict religious people, and all of whom live in Tripoli (apart from his immediate family who are now in Australia). He claimed to fear harm if he returned to Lebanon from his extended family in Lebanon and from Lebanese authorities. He claimed to fear harm on the basis that he was a homosexual and he claimed that he feared that he would be beaten up and harmed on that basis if he returned to Lebanon. He claimed that he could not lead a gay lifestyle in Lebanon and that he would be at risk of harm if he did so. He said that his immediate family of his mother, father and [siblings] had come to Australia and were living in [State 1]. He said that they had come to Australia by boat as refugees in July 2013.

24. He said he had not been harmed in Lebanon because of his family background. He told the Tribunal that he had been able to obtain his passport and travel to Australia without any difficulties. He told the Tribunal that his life in Tripoli in Lebanon had been good but that he had not been able to live his life as a gay person. He told the Tribunal that he had not engaged in any gay relationships when he was in Lebanon and had not engaged in any gay relationships in Australia prior to meeting [Mr A].

25. He told the Tribunal that he had studied [for] three semesters in Australia, up until November/December 2013. He also said that he had worked as an assistant travel support  officer in Australia.

26. He told the Tribunal that he was a Sunni Muslim but did not practice that faith. He said that other members of his extended family in Lebanon did have a strict religious values and practices and he claimed to fear harm from those relatives if he returned to Lebanon and they became aware of his sexuality. He said that he had not spoken to his immediate family in Australia about his sexuality, or about his relationship with [Mr A].

27. The Tribunal asked the applicant why he could not relocate to Beirut, if he returned to Lebanon. The applicant claimed that he would still be at risk of harm in Beirut because of his sexuality.

28. The Tribunal during the hearing referred to the DFAT country report for Lebanon dated February 2014. The Tribunal noted that report referred to Lebanese law prohibiting “un-natural acts” as well as laws prohibiting the “violation of public morals”. The report indicated that those provisions in Lebanese law had been used in the past to prosecute homosexual activity. The report indicated that the Department had been told by contacts that gays and lesbians are also subject to harsh treatment, sometimes including rape, in detention. However, the report also indicates that Beirut enjoys a reputation in the middle eastern region as an open, relatively gay friendly capital. The report indicated that apart from isolated examples, in recent years, homosexuality has not normally been prosecuted in Lebanon . The report indicated that gay and lesbian clubs exist in Beirut and that the Department’s contacts report that gays and lesbians can generally avoid prosecution “by keeping a low profile”. The Tribunal also referred to a BBC report in 2013 that described Beirut as having “an underground gay scene  that is private, yet very much alive (see BBC 25, November 2013, CX315844, “Lebanon’s gay friendly reputation challenged by abuses”). The Tribunal also referred to an NBC News item in October 2012, that stated that Beirut is regarded as the gay capital of the Middle East and gay bars and clubs are common (“oasis of tolerance or Republic of shame? Two faces of gay life in Beirut, MS NBC News, 30 October 2012, CX306429). The Tribunal also noted that a report from Agence France Presse in May 2013 had referred to Lebanon as having a reputation as the most liberal country in the Conservative Middle East, but that even a night on the town for gays can end in arrest and humiliating sexuality tests. The report also indicated that while gay people might be less persecuted than elsewhere in the region that in Lebanon outside a few areas of the capital Lebanese homosexuals are largely stigmatised and discriminated against(see “Lebanon Liberal for Middle East but gays are still targeted”, Agence France Presse (AFP), 8 May 2013 CX 307196). The Tribunal also noted that Human Rights Watch had reported in 2013 that it had heard accounts from a number of former detainees, including lesbian, gay, bisexual and  transgender persons that they were mistreated or tortured by security force members while under arrest or in detention in Lebanon (see Human Rights Watch world report, Lebanon 2013).

1. The applicant, told the Tribunal that he was afraid of his relatives, and would risk harm from them because of his sexuality, if they became aware of that issue. He said he thought he could be at risk of harm from the authorities because he could be beaten and harmed because of his sexuality. He claimed that he could not follow his gay lifestyle in Lebanon and that he would have difficulties in obtaining employment and in getting a job and he referred to his relatives in Tripoli being  poor but if he had to return to Lebanon he would have to return to Tripoli initially to seek help and that he would have problems and difficulties. He told the Tribunal that his immediate family were now in Australia. He told the Tribunal that he could live in Australia without harm but was afraid if he had to return to Lebanon.

2. The applicant, told the Tribunal that he disagreed with country information that the Tribunal had referred to in relation to Beirut. He said that he could not have a gay relationship in Lebanon if he returned and that if  [Mr A] was with him both he and [Mr A] would get harmed in Lebanon because of their sexuality. The Tribunal also referred to country information in the DFAT country report that indicated that the Department assessed that Sunni people living in the immediate vicinity of Syria street Tripoli are at a higher risk of being caught up in sectarian violence, but that Sunni people living in other parts of [Tripoli] (which was where the applicant’s father conducted his business) were at a moderate risk from sectarian violence because, violence was more easily avoided in that neighbourhood. The Tribunal raised that information in the context of the applicant’s earlier claims for seeking protection and that he had referred to in his protection visa application and that had been referred to during the interview with the Department delegate.

3. The Tribunal also raised its concern that the applicant had not referred to his claim to fear harm on the basis of his sexuality in his protection visa application and had not raised that issue with the delegate. As indicated elsewhere in these reasons the applicant responded by saying that he did not know that he could claim protection on the basis of his sexuality until just before he sought the review with the Tribunal.

4. The applicant’s representative made submissions to the Tribunal and referred to the written submissions [in] June 2015 and in summary, in particular referred to media and international reports that have been referred to in those submissions that indicated that gay and other vulnerable people in Lebanese society, were at risk in Lebanon. The representative also referred to that part of the DFAT country report that indicated that gay people in Lebanon and including in Beirut could avoid prosecution on the basis of their sexuality by keeping a “low profile” and in essence, this comment was strongly suggestive of people needing to modify their behaviour to avoid the risk of prosecution. As indicated elsewhere in these reasons the written submissions confirmed that the applicant’s claims for protection were based on his homosexual sexual orientation and that the applicant’s relationship with [Mr A] would not be tolerated in Lebanon. The Tribunal allowed until 14 July 2015 for any further submissions in relation to the applicant’s claims.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. On the basis of the documentation provided to the Department and to the Tribunal, the Tribunal accepts that the applicant is a Lebanese citizen. The Tribunal accepts that his identity is as he claims it to be. Without any evidence to the contrary, the Tribunal accepts the applicant has no right to enter or reside either temporarily or permanently in any other country apart from Lebanon. The Tribunal accepts that Lebanon is the applicant’s country of nationality for convention purposes.

6. The Tribunal has considered the applicant’s claims to have a well founded fear of persecution if he returns to Lebanon on the basis that he fears harm because of his sexuality in terms of the practice of his homosexual lifestyle, and he claims to fear harm as a member of a particular social group of gay men.  As indicated elsewhere in these reasons the applicant had initially claimed in his protection visa application and before the Department delegate to fear harm of persecution if he returned to Lebanon on a number of other grounds, but not his sexuality. He did not pursue those other grounds at the Tribunal hearing and nor was it suggested in the submissions made on his behalf that he was claiming to fear harm of persecution on the basis of those other grounds. He and his agent told the Tribunal that his claim for protection was based on his fear of harm of persecution on the basis of his sexuality should he return to Lebanon either now or in the reasonably foreseeable future.

7. As indicated the Tribunal heard evidence from the applicant’s partner, [Mr A]. The Tribunal accepts [Mr A]’s evidence that he and the applicant have a “pretty strong” relationship. [Mr A] and the applicant have resided together for about 12 months. The Tribunal has been provided with a relationship certificate dated [in] November 2014 issued by the [State 1] Registry of births deaths and marriages. The relationship certificate refers to the applicant and [Mr A who] has provided material and financial support to the applicant. The Tribunal has been provided with financial records to that effect. [Mr A] and the applicant initially met online around July/August 2012. The applicant described the relationship with [Mr A] as strong and good. The Tribunal accepts the applicant’s evidence about his relationship with [Mr A] and also accepts the applicant’s claims regarding his homosexuality and that he both pursues a homosexual lifestyle and that he wishes to continue to pursue that lifestyle. The Tribunal notes the supporting documentation and materials that were provided by the applicant’s representative in terms of the applicant’s relationship with [Mr A] and that has been briefly referred to elsewhere in these reasons.

8. The Tribunal has considered the applicant’s credibility in relation to his claims and in relation to his evidence to fear harm on the basis of his sexuality should he return to Lebanon. Overall the Tribunal found that the applicant was frank and candid in discussing his claims to fear harm on the basis of his sexuality and in discussing issues relevant to those claims and in discussing his relationship with [Mr A]. The Tribunal does have some concerns that the applicant had not previously raised his claim to fear harm on the basis of his sexuality if he returned to Lebanon. As indicated the applicant’s representative raised this claim for the first time in June 2015 relatively shortly before the Tribunal hearing. The applicant, by way of explanation told the Tribunal that he had not previously raised this claim because he was not aware that he could seek protection from persecution on the basis of his sexuality. He told the Tribunal he only became aware of that ground for claiming protection before the Tribunal hearing and that was the reason why he had not raised it at an earlier stage in the protection visa application process. The Tribunal is prepared to accept the applicant’s explanation for why he had not raised his sexuality at an earlier stage in the protection visa application process. However, the Tribunal does have some reservations about the applicant’s overall credibility in that the delegate’s record of decision document indicates that the applicant told the Department delegate that he had been unable to afford to continue to study any further because of difficulties in finding the fees. There is no suggestion that he informed the delegate that in fact he was receiving financial and material assistance and support from [Mr A]. The Tribunal has some concerns that the applicant was not fully candid in discussing those issues with the delegate. The Tribunal believes that it would have been reasonable in all the circumstances that the applicant would have at least disclosed his relationship with [Mr A], notwithstanding that he did not know that his sexuality could be a basis for seeking protection in Australia. The Tribunal has considered that aspect but overall the Tribunal accepts the applicant is a credible witness.

9. The applicant told the Tribunal that he feared harm if he returned to Lebanon from his religious relatives and from Lebanese authorities. His evidence was that his relatives lived in Tripoli, which is the applicant’s home area. He claimed that a number of his relatives followed the Sunni Muslim faith and that they would not accept the applicant’s homosexual activities and that he would be at risk of harm from them because of his sexuality. He claimed that he would be at risk of harm if he relocated to Beirut from Lebanese authorities who he claimed would assault him because of his sexuality and he also claimed that if he did return he would have difficulty in supporting himself and that all his immediate family were now living in Australia. He told the Tribunal that he would not be able to live or pursue a gay lifestyle or have a gay relationship if he returned to Lebanon.

10. The Tribunal has considered the applicant’s evidence and his claims and has also had regard to available and relevant country information in relation to the applicant’s claims. In particular the Tribunal notes that the DFAT country report dated February 2014 which has been referred to elsewhere in these reasons in discussing the situation for people claiming harm on the basis of their sexual orientation refers to Lebanese law prohibiting “unnatural acts”  and “violating public morals”. As indicated that country report indicates that apart from isolated examples that in recent years homosexual activity had not normally been prosecuted in  Lebanon and also indicates that gay and lesbian clubs exist in Beirut and that Beirut enjoys a reputation in the region as an open, relatively gay friendly capital. However, the report also indicates that gay and lesbian people “can generally avoid prosecution by keeping a low profile”. Another part of the report in referring to other groups who might be at risk of harm on the basis of their sexual orientation also refers to those groups being “likely to maintain a low profile in Lebanon given the presumption of societal discrimination against them”. The report also indicates that the Department has been informed by “contacts” that gays and lesbians are particularly susceptible to rape and other violence in detention. The Tribunal has also had regard to other relevant country information in relation to the applicant’s claims to fear harm on the basis of his sexuality should he return to Lebanon. That information has been referred to elsewhere in these reasons. That information includes materials provided by the applicant’s representative to the Tribunal, which have been referred to, and referred to by the applicant’s representative during the Tribunal hearing. The Tribunal’s overall assessment of the available country information is that a person claiming to fear harm on the basis of their sexual orientation in Lebanon may be able to pursue a gay and lesbian lifestyle in Beirut, but would still need to keep “a low profile” and be discrete but even in those circumstances would run a risk of being discriminated against and have a risk of being arrested and detained. Arrest and detention may not result in actual charges under Lebanese law but while in detention the country information indicates that gay and lesbian people are particularly susceptible to rape and other violence while in detention.

11. The Tribunal’s overall assessment of the country information is that it would be difficult for the applicant to lead an openly gay lifestyle outside of Beirut and if he did so he might be at risk of harm on the basis of his sexuality. The need to keep a low profile in accordance with the reference in the DFAT country report also raises the issue that the applicant would need to take steps to avoid persecution because of his sexuality even if he did relocate to Beirut. The country information suggests that the applicant would need to modify his conduct and  behaviour in terms of his sexuality to avoid persecution. The applicant, told the Tribunal that he would not be able to lead an openly gay lifestyle if he returned to Lebanon because he feared harm if his sexuality became known to Lebanese authorities or to his relatives. That evidence indicates to the Tribunal that the applicant would modify his behaviour if he returned to Lebanon to conceal his sexuality in order to avoid harm. The Tribunal does not accept that the applicant being required to modify his behaviour in terms of his sexuality would be a reasonable requirement in order for him to avoid persecution, even if he were to relocate to Beirut. The Tribunal’s overall assessment of the country information indicates that the applicant should he return to Lebanon either now or in the reasonably foreseeable future indicates that the applicant faces a real chance of serious harm on the basis of his sexuality. The country information, which has been referred to in these reasons, in the Tribunal’s view indicates that the applicant, if he led an openly gay lifestyle in Lebanon, would be at risk of a real chance of serious harm on that basis and that the risk would not be remote or far-fetched. The risk in the Tribunal’s view, based on country information, principally arises from Lebanese authorities. The Tribunal is also prepared to accept the applicant’s claims that he faces a real chance of serious harm from his relatives in his extended family who he claims because of their strict religious views would not accept his sexuality and would harm him on that basis. The Tribunal accepts that the feared harm is essentially and significantly for a convention reason and that the feared harm involves systematic and discriminatory conduct.

12. The Tribunal has considered the applicant’s claims and the evidence and available country information and submissions and those issues have been considered and discussed elsewhere in these reasons. In those circumstances the Tribunal is satisfied that the applicant has a well founded fear of persecutory harm on the basis of his sexuality should he return to Lebanon either now or in the reasonably foreseeable future. The Tribunal accepts the applicant’s claims that he would be at risk of harm if he returned to Lebanon on the basis of his membership of a particular social group of gay men.  The Tribunal is not satisfied, for the reasons that have been considered and discussed, that the applicant would avoid a real chance of serious harm by relocating to Beirut.

    Overall Summary

13. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

14. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    James Jolliffe

    Member