1414222 (Refugee)

[2015] AATA 3757

1414222 (Refugee) [2015] AATA 3757 (19 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414222

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:James Jolliffe

DATE:19 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 19 November 2015 at 2:27pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Lebanon , applied for the visas [in] February 2014 and the delegate refused to grant the visas [in] August 2014.

3. The applicants appeared before the Tribunal on 23 July 2015 and 6 October 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 first named applicant has made claims for protection and the second and third named applicants are claiming protection on the basis of being members of the same family unit as the first named applicant. In those circumstances the Tribunal will refer to the first named applicant as “the applicant” in these reasons.

4. The applicants were represented in relation to the review by their registered migration agent.

   Relevant Law

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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

10. The Tribunal has before it the Department and Tribunal files relating to the applicants together with information from a variety of sources.

11. The issue in this case is that the applicant fears harm if he returns to Lebanon on the basis that he would be perceived to have an anti Hezbollah political opinion. In written submissions dated 16 July 2015 made on the applicant’s behalf the applicant’s representative indicated that the applicant has a well-founded fear of persecution on the basis of an actual and imputed political opinion against Hezbollah as well as claiming to fear harm on the basis of his membership of particular social groups in that it is submitted the applicant is a high-ranking army officer in the Lebanese army working against Hezbollah as well as his membership of a particular social group in that it is submitted he is a deserter from the Lebanese Armed Forces.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

13. In his protection visa application which was received by the Department [in] February 2014 the applicant claimed that he was born on [date] in [his home village] in [a location] in Lebanon. He claimed that he married [in] 1989 (however a marriage certificate provided by the applicant indicates that the marriage occurred in 1998). He claimed that he had no right to enter or reside temporarily or permanently in any other country apart from Lebanon. He claimed that he was a serving officer in the Lebanese army and that he had been issued with his current Lebanese passport [in] 2013. He claimed to have arrived in Australia [in] November 2013 on a visitor visa. He claimed to have lived in [his home village] for his entire life. He claimed to have attended school in Lebanon between [year] and [year] and have attended one year at university and attended at a military academy between [year] and [year]. He claimed that he had been in the Lebanese army since [then] and that he currently holds the rank of [Rank 1]. The second and third named applicants did not make separate claims for protection.

14. The applicant provided a statutory declaration dated [in] February 2014 in support of his protection visa application. In that declaration the applicant claimed that he was a Sunni Muslim and referred to his personal details and his immediate and extended families details. He referred to his education and his attendance at a military academy. He claimed that he had graduated from the academy as a [Rank 2] in [year] and gave details as to his postings in Lebanon. He claimed that he was promoted to a [Rank 3] in [2009] and moved to [a district in] [a location] and [a specified] Checkpoint. He claimed in February 2013 he had been conducting a routine check when he had stopped a vehicle and requested identification from the occupants. He claimed the occupants gave him Hezbollah identification cards and said they were from the “resistance”. He claimed he searched the vehicle and located some arms and had the weapons confiscated and the two occupants of the vehicle arrested. He claims that he later found out the two occupants were later released without charge. He claimed that about one week later a similar incident occurred. He claimed that about [several] weeks later he was approached by one of his officers and told that the Hezbollah leadership was not happy with the applicant’s confrontation with Hezbollah members passing through the checkpoint. He claimed that in August 2013 he was shopping when a man known to him as a leader in Hezbollah ( [Mr A]) approached him and told him “Hezbollah wants to kill you because you were hindering their work at [the named] checkpoint.” He claimed he responded by saying that he was an army officer and that he would report this incident to his superiors so that it could be taken up with [Mr A’s] superiors. The applicant claimed he reported this incident to his superior and that he was shortly after transferred to [Location 4] army base which he claimed was located in “Hezbollah heartland”.

15. The applicant claimed that after the transfer that he was being observed by members of Hezbollah and his movements were watched and he was followed by unknown cars on his way to work. He claimed he became very frightened and applied for his visa to come to Australia and had then attempted to have his wife and children come to Australia but only his wife and one child were able to come to Australia. The applicant claimed that he and his wife have [number] children.

16. The applicant claimed he left Lebanon  because his life was in danger and that he had received direct threats to his life and he feared if he returned to Lebanon he would be pursued and killed by Hezbollah. He claimed that Hezbollah had killed  many of his military comrades and that Hezbollah is militarily very strong, and it is not possible for the Lebanese authorities to protect him. He claimed that the Lebanese army cannot become involved in direct armed conflict with Hezbollah and that Hezbollah uses its strength “to achieve their political and ideological goals”.

17. The applicant provided a further statutory declaration dated [in] June 2014. In that declaration the applicant repeated his personal details and information about his family contained in his first declaration. He provided further information about his military postings and claimed that he had moved to the [specified] checkpoint in January 2008. He claimed that during clashes [in] May 2008 he “suspected” his house had been shot at by Hezbollah or its supporters. He suspected he had been targeted because he was a Lebanese army officer of the Sunni faith. He said he was promoted to a [Rank 3] in [2009] and continued to command a checkpoint. He then repeated the claims that he had made in his first declaration about the events in February 2013 where he claimed to have stopped the car and caused the seizure of weapons and the arrest of the two occupants of the vehicle. He claimed that another incident of a similar type occurred about a week later. He then repeated the claims that he had made in his earlier declaration about Hezbollah being unhappy with him and that he was told Hezbollah wanted to kill him. He also claimed that Hezbollah does not  respect the Lebanese authorities or Lebanese law or Lebanese people. He claimed “I have on many occasions officially declared such position”. He claimed he was seeking protection in Australia. He was unwilling or unable to return to Lebanon where he claimed he would be killed by Hezbollah.

18. The applicant was interviewed by a Department delegate [in] July 2014. The delegate declined to grant the applicant a protection visa and was not satisfied that Australia had protection obligations to the applicant under the Refugees convention or under the Complementary protection provisions of the Migration Act. The applicant’s representative confirmed during the hearing that the Tribunal had been provided with a copy of the delegate’s record of decision with the application for review.

19. The Tribunal received written submissions dated 16 July 2015 from the applicant’s representative’s. In summary those submissions referred to the applicant’s background and his military career in Lebanon. The submissions refer to the applicant initially taking leave of absence from the army, but that that leave had expired in [2014]. The submissions claimed that he was now a deserter from the Lebanese army and attached a document purporting to be from Lebanese authorities for the investigation and arrest of the applicant because he has deserted. The submissions claimed that the applicant could not return to Lebanon because he feared being killed by Hezbollah and that because he had also deserted from the army, he would be detained, punished and imprisoned and that in prison, he would be tortured and treated inhumanely and he fears he could be killed by Hezbollah operatives. The submissions refer to the Refugees convention and the legal basis for considering refugee claims in Australia. The submissions also refer to the background of Hezbollah in Lebanon and refer to a number of media and journal reports in relation to that issue. The submissions suggest that the reports “clearly indicate Hezbollah’s dominance in Lebanon ”. The submissions refer to the situation for Lebanese army deserters in terms of likely punishment and treatment and referred to a DFAT report to the Refugee Review Tribunal released on 15 August 2013 referring to that issue (cited as DFAT Report 1534 LBN42474). The extract from the DFAT report refers to significant custodial sentences available for desertion but “post did not come across any media reporting of cases where a sentence for desertion from the LAF was imposed”. The extract also refers to this aspect being discussed with a Lebanese Colonel who said that deserters returning to Lebanon are arrested at the airport and that the military tribunal’s judgements are subsequently enforced and deserters are discharged from the LAF and that desertion was an internal issue which explained why there was no news of enforcement of military judgements in the news. The extract also refers to heavier penalties being available for officers who desert, as opposed to privates. The submissions also refer to a 2013 Human Rights Watch report that indicated that torture had occurred in a Ministry of Defence detention facility and also referred to other international reports in relation to claims that torture had occurred in detention facilities under the control of Lebanese authorities. The submissions also refer to a decision of the Refugee Review Tribunal which is claimed in the submissions to have similar aspects to the applicant’s case and where the Tribunal in that case, found that the applicant was entitled to protection under the Complementary protection provisions of the Migration Act( cited as 1217887 (2014) RRTA 15 January 2014 presiding member Filip Gelev). The submissions also refer to the concepts of political opinion and members of a particular social group in discussing the applicant’s claims. The submissions also suggest that the applicant would not be able to relocate within Lebanon to avoid the persecution that he claims to fear from Hezbollah and the military judicial system.

20. The submissions also refer to certain credibility issues that the Department delegate raised in the delegate’s decision record. That aspect arose in particular, according to the submissions, in relation to the applicant “primarily due to a claimed inconsistency in the chronology of his services in the Lebanese Armed Forces”. The submissions raised issues in relation to the consideration and assessment of credibility in refugee cases and protection claims. The submissions suggest that the applicant’s difficulty in remembering exact dates regarding military service should not “infer  lack of credibility on his part” and also refer an attached report [a welfare agency] in relation to the applicant. The submissions suggest that the applicant is a person who is entitled to protection in Australia and that his wife and child satisfy the criteria as members of the same family unit as the applicant.

21. The attached [welfare agency] report (dated [in] July 2015) for the applicant referred to the applicant reporting his background to the author of the report. The report said the applicant’s “highly anxious state is a reflection of his extreme worry for his [family] and his fears for his own life if ever he was sent back to Lebanon”. The report referred to the applicant’s fears about Hezbollah and the consequences of his desertion from the army . The report indicated that the applicant is very anxious and “in this state his memory is affected.”. The report suggested that his memory difficulties included his inability to recall the precise order in which events may have occurred. The report referred to the applicant’s wife and the toll that has been taken on her health because of the situation. The report referred to the second named applicant being [pregnant] and having medical difficulties and that those difficulties also increased the stress levels for the applicant. The report referred to the applicant attending counselling on a fortnightly basis over the last eight months and that the author of the report understood that the applicant also had weekly appointments with his general medical practitioner. The author of the report suggested that it would be “very beneficial” for the applicant and his family if the asylum situation could be positively resolved soon.

    TRIBUNAL HEARING

22. The first named applicant appeared before the Tribunal on 23, July 2015 and 6 October 2015 to give evidence and present arguments. Only the first named applicant gave evidence. The other applicants raised no separate claims for protection but claimed protection on the basis of being members of the same family unit as the first named applicant. As indicated elsewhere in these reasons the first named applicant will be referred to as the applicant.

23. The applicant confirmed his name and personal particulars. The applicant confirmed that he has [children] who are living with relatives in Lebanon. The applicant confirmed that neither his wife or [child] in Australia were making any separate claims for protection other than as members of the same family unit as the applicant. The applicant confirmed that he had been in the Lebanese army since [year]. The Tribunal asked the applicant why he did not resign from the Lebanese army rather than face the desertion charges that he claims he now faces and the risk of harm as a result of the desertion. He told the Tribunal that he had to be in Lebanon  in person to resign his commission and he claimed he could not resign from overseas. He claimed that if he returned to Lebanon he would be arrested and tried before a military court for his desertion. He claimed he would receive a higher penalty because of his rank for deserting and he claimed he would be treated to psychological and physical torture while in military detention. He also claimed if he returned he would be at risk of harm from Hezbollah. He told the Tribunal during the course of the hearing that he had left Lebanon  in a "rush" and that he had not thought about resigning his commission. He claimed he left in a rush because Hezbollah wanted to kill him. The Tribunal during the course of the hearing referred to the document that the applicant had provided which he said he had been sent by his friend in the military in Lebanon and which referred to the applicant and referred to a “notice of search and investigate in regards to an army deserter”. The Tribunal raised its concerns during the hearing about the document in terms of its veracity and the circumstances in which the applicant obtained the document. The applicant told the Tribunal that he had received the document from a friend of his in the Army and the document had been sent via “DHL” to the applicant.

24. The Tribunal asked the applicant about his claim that there had been a shooting incident where his home had been fired at. The Tribunal noted that there was no mention in his first statutory declaration of that incident. He told the Tribunal that he suspected after the claimed incident in August 2013 that it was Hezbollah who shot  at his home in 2008 and he had not mentioned it in his initial statutory declaration until he thought further about the 2008 incident. He told the Tribunal that he had been threatened by [Mr A] (a claimed Hezbollah leader), the person referred to in his declaration in August 2013. He told the Tribunal that he had been posted to [the specified] checkpoint where he claimed to have encountered Hezbollah in January 2013 but he said he had been working in the wider military district before that posting. He claimed he was transferred to [Location 4] in November 2013 and that posting placed him in an area dominated by Hezbollah.

1. He told the Tribunal that he had left Lebanon to come to Australia on his own passport and had left from Beirut International airport. The Tribunal noted that the country information indicated that Hezbollah effectively controlled security at that airport (see DFAT country report Lebanon  dated February 2014). He told the Tribunal he had not had any difficulties in leaving Lebanon . The Tribunal raised its concern that he claimed he was at risk of harm from Hezbollah and yet given Hezbollah's significant presence at the Beirut International airport he had no difficulties in leaving Lebanon. The Tribunal was told  he believed that he had been "lucky" in being able to leave the airport without any difficulty. The Tribunal was told that he had worn his army uniform at the airport and he had been able to use his army authority to be able to leave through the airport.

2. The Tribunal asked the applicant how he had obtained the document which referred to the applicant being wanted for desertion and  which was effectively a warrant for the applicant's arrest although it was described as “a notice of search and investigate in regards to an army deserter”. As indicated elsewhere in these reasons he said that a friend who was in the military had supplied it to him. That document had been attached to submissions made on the applicant's behalf and referred to elsewhere in these reasons. As indicated the Tribunal raised its concerns with the applicant during the hearing about the veracity of the document. The DFAT country report for Lebanon refers to issues about document fraud in Lebanon.

3. The Tribunal asked the applicant why Hezbollah had not harmed him given that it had ample opportunity to hurt the applicant while he was in Lebanon. The applicant said that he believed Hezbollah was waiting for an opportunity to hurt him. The Tribunal asked the applicant about his claims that Hezbollah had followed him. He said that he had seen cars following him but he also said that sometimes he slept at the army checkpoints and explained to the Tribunal his attendance at checkpoints and in other places when he was in the army and by implication suggested that by sleeping at checkpoints he had limited Hezbollah's opportunities to hurt him. He told the Tribunal that he believed he had been transferred to the  [Location 4] posting because of the threats that had been made to his safety from Hezbollah. He told the Tribunal that no one had actually spoken to him directly and threatened him when he had been at [Location 4] and that the only occasion when he had received a direct threat was in relation to the conversation with [Mr A]. The Tribunal asked the applicant why Hezbollah would essentially flag in advance that they wanted to kill him when they could have just proceeded to kill the applicant and that Hezbollah had opportunities to harm the applicant when he was driving between postings or from postings to his home. The Tribunal raised that issue in the context of its concerns about the credibility of the applicant’s claim that he faced harm from Hezbollah if he returned to Lebanon. The Tribunal overall found that the applicant’s evidence was very confusing about why he believed Hezbollah had not harmed him while he was in Lebanon. As indicated the Tribunal noted that Hezbollah had opportunities to harm the applicant if it wanted to do so. The Tribunal also referred in the hearing to DFAT country information contained in the 2014 country report for Lebanon which indicated that the Department assessment was that the Lebanese armed forces had strong links with Hezbollah.

4. The Tribunal asked the applicant about his claims surrounding the checkpoint incidents. He said that the first incident was [in] February 2013 around [a certain time] in the afternoon and that he was supervising the [specified] checkpoint on that occasion. He said he caused the vehicle to be stopped and that two of the occupants gave Hezbollah identification cards and  the applicant claimed he asked for  Lebanese identification cards. He said the occupants of the car said that they were "resistance". The applicant said he had the car surrounded and  the car was searched and that two of the people stayed in the vehicle while this occurred. He said weapons were located in the car and that both people were detained and were handed over to the military police but he claimed they were later released without charge. He said the checkpoint was about [distance] drive from Beirut. The applicant told the Tribunal that a seizure notice that had been produced regarding the arrest of 2 people and what had been seized by the army on that occasion from the vehicle had been forwarded to him by his friend in the army who had also sent him the "arrest warrant" for his desertion (which has been referred to). He said the documents had been provided by his friend through the applicant's brother who had contacted the friend on the applicant's behalf and the friend had sent the documents to the applicant in Australia.

5. The applicant told the Tribunal that "roughly" a week after the first incident (around [date in] March 2013) he stopped a vehicle and detained the occupant of the vehicle who he claimed had a weapon and ammunition and also sent him to the military police and he said he believed that person was also released without charge. He claimed that person was also a Hezbollah person. The applicant claimed that about [number] weeks after that incident around the [dates] of April a fellow army officer had told him that Hezbollah was threatening to kill the applicant because of what he was doing at the army checkpoint in terms of detaining Hezbollah members. The Tribunal referred to the applicant's first statutory declaration and his claims in paragraph 17 of that declaration in asking the applicant about this claim.

6. The applicant was asked about the times that he had been in charge of the checkpoint. He said that he had served twice at the checkpoints and he said on the first occasion that was between [year] and [year] and that he had then been deployed to [another location] in [year]. He claimed he returned to the [specified] checkpoint in [2013] and that he was a [Rank 3] at that time. He was asked about the number of times that he might detain people at the checkpoint. He said that it varied and that sometimes there might be seven in a week and sometimes two or three of those would be Hezbollah people and some weeks no one was detained. He said he was not at the checkpoint all the time every day and said that he was there often three days a week for several hours on those days but he also had other duties at other places.

7. The Tribunal asked him if he had had any problems with Hezbollah between 2008 and 2010. He referred to the claims that Hezbollah had shot at his home in 2008 but he told the Tribunal that he received no actual threats during that time. The Tribunal found on occasions that the applicant responded with lengthy responses or comments to the Tribunal but that the applicant did not essentially answer or address the Tribunal's particular question. The Tribunal asked the applicant further questions about the times when he had stopped or detained people who identified themselves as Hezbollah. He told the Tribunal that after the second incident in 2013 there had been no other incidents where people had presented at the checkpoint and identified themselves as Hezbollah. The Tribunal, overall, found it was difficult to obtain details from the applicant about incidents where people had been stopped at the checkpoint and had identified themselves as being connected to Hezbollah. He told the Tribunal that he believed that Shia people coming to the checkpoint were associated with Hezbollah and people were stopped if they did not provide identification or if they had drugs. The Tribunal raised its concern about the credibility of the claim by the applicant that he had not encountered any people after the second incident in 2013 (around [date in] March 2013) at the checkpoint who had identified themselves as being associated with Hezbollah. The Tribunal referred to the DFAT country report for Lebanon  dated February 2014 which indicated that the Lebanese Armed Forces had strong links with Hezbollah. The applicant claimed that the army was controlled by Hezbollah.

8. The applicant speculated that Hezbollah had decided to avoid him by avoiding the checkpoint and that was the reason why people who had been stopped did not identify themselves as being connected to Hezbollah after the March incident. The applicant told the Tribunal that he had received no threats between April 2013 to August 2013 in relation to Hezbollah. He claimed that he was seen to be a threat to Hezbollah because he was a high-ranking military officer and of the Sunni faith who had detained Hezbollah people. He also claimed that his [relative] who was an Iman at [mosques] and he was also critical of Hezbollah. The applicant claimed that Hezbollah wanted to kill the applicant. He told the Tribunal that no harm had come to his  [relative] but he told the Tribunal that he also claimed to fear harm because of his  [relative’s] critical comments about Hezbollah. The applicant told the Tribunal that he feared harm because of his  [relative’s] activities in [the] mosques where he preached and he claims was critical of Hezbollah and he also referred to a shooting incident that occurred about [number] days before the Tribunal hearing in his home town in Lebanon. He claimed that incident in essence indicated the volatility of events in Lebanon. The applicant did not provide any further details about the claims regarding his [relative] during the Tribunal hearing. The applicant in his first statutory declaration had not referred to any claims that he feared harm on the basis of his [relative’s] activities as a cleric who was said to be critical of Hezbollah. That claim was made by the applicant in his second statutory declaration dated June 2014.

9. The applicant told the Tribunal that he had memory difficulties. He told the Tribunal that he had been attending counselling at [the welfare agency]. That organisation had provided a report on the applicant's behalf. The Tribunal noted that report was essentially just a summary of the applicant's claims. The applicant said that he was also seeing a psychiatrist and a general practitioner in relation to his stress and his anxiety. The Tribunal was subsequently provided after the Tribunal hearing with further documentation in relation to the applicant's treatment for stress and anxiety. That documentation will be referred to elsewhere in these reasons.

10. The Tribunal sought to clarify the applicant's military service in terms of his service at the [specified] checkpoint and referred to the applicant's first statutory declaration and  the submissions made on the applicant's behalf in  July 2015 and to the Department delegate's record of decision in relation to the applicant’s postings. He told the Tribunal that he had been stressed before the interview with the Department delegate and that he was concerned about his family in Lebanon and was not able to concentrate at the time of the interview with the delegate. The applicant claimed that he had fainted before the interview with the Department delegate. He claimed that his first statutory declaration was correct in terms of the details about his service but that he gets stressed and could not remember details and dates. The Tribunal noted that the applicant's first statutory declaration suggested that he had been serving at the checkpoint since 2009 but this was not the case. The applicant said that he had been serving in the wider military area at that time. He claimed to the Tribunal that he was at risk because he had copied his military identification and produced that to the Department. He made these comments when the Tribunal had asked him for his comments in relation to the Department delegate's adverse findings in relation to inconsistent evidence by the applicant about his military service at the checkpoint. That credibility aspect had been referred to in the written submissions made on the applicant's behalf and which have been referred to elsewhere in these reasons. The applicant said that he had not asked for a transfer to [Location 4]. He said that the transfer had taken a little time to take effect but that he took command at [Location 4] [in] November 2013 but he claimed that he had been under surveillance from Hezbollah before he took up the posting and he claimed that he had been threatened by [Mr A] before he took up the posting. The Department delegate had noted (see page 6 delegates decision record) that the applicant had claimed to have been transferred to [Location 4] in August 2013 but the applicant told the Tribunal that he took command at that posting [in] November 2013 because the actual transfer had taken a little time to come into effect. He claimed to have received no threats when he took up the posting but as indicated elsewhere in these reasons claimed that cars had followed him. The Tribunal overall had difficulty in getting the applicant to clarify his military service record in terms of postings and relevant dates in relation to his claims in relation to those postings.

11. The Tribunal believed overall that the applicant did not effectively engage with the Tribunal's question's about his claims about being followed by Hezbollah or by vehicles which he claimed contained people associated with Hezbollah. He confirmed that nothing had happened to him when he took up his posting at [Location 4]. The applicant said that he had been a [Rank 4] in the Army in 2008 and a [Rank 3] in 2009. The Tribunal asked the applicant a number of questions about his military service more generally in an effort to clarify dates and details as to where the applicant claimed he served in Lebanon at particular times. The Tribunal was concerned in particular about the times and dates when the applicant had served at the particular checkpoint where the incident with Hezbollah was said to have occurred and also about his subsequent posting to [Location 4]. The applicant claimed he had been posted to [Location 4] because of the threats from Hezbollah. The Department delegate had raised concerns in the delegate’s decision record about the applicant’s evidence surrounding the dates and details of his various military postings in Lebanon and about the dates and events that he said occurred at the [specified] checkpoint as well as the applicant’s claims about the threat made to him by [Mr A] (a claimed Hezbollah leader). The Tribunal spent time seeking to clarify the details surrounding these issues. The Tribunal referred to the claims the applicant had made about his military service in his statutory declarations in an effort to clarify the facts. The Tribunal raised concerns about inconsistent evidence that had been provided by the applicant to the Department delegate about his military postings. The applicant said, as indicated, that he got stressed and could not remember dates in seeking to explain inconsistencies in relation to his evidence to the delegate and his claims in his statutory declarations and his evidence to the Tribunal.

12. The Tribunal asked the applicant about his claim in his second statutory declaration that he had been critical of Hezbollah. The Tribunal overall found it difficult to get  clear and concise details from the applicant about this claim . He essentially told the Tribunal after a May 2008 incident/ attack in Beirut by Hezbollah that he had criticised Hezbollah to his commanding officer and that he had also spoken to other military officers in critical terms about Hezbollah and he also claims that he spoke to the mayor in his home area and at social events about Hezbollah and the assassination of Prime Minister Hariri. He told the Tribunal that he was not involved in politics in Lebanon. He referred to the general conflict between people of the Sunni and Shia faiths and he claimed that he supported the March 14 coalition in terms of opposition to Syrian influence in Lebanon and the assassination of Prime Minister Hariri. The Tribunal asked the applicant why he would stop Hezbollah vehicles and detain Hezbollah people in 2013 in light of the country information referred to by the Tribunal that indicated that the Lebanese Armed Forces and Hezbollah had a close relationship and that in those circumstances the Tribunal had difficulty in understanding why the applicant would claim that he would stop and detain people who identified themselves as being associated with Hezbollah. The applicant said that he did not agree with Hezbollah carrying weapons and being above the law in Lebanon. He said that he had to apply the law and arrest Hezbollah people carrying weapons to set an example to his troops and he arrested them even though he knew that they would be released.

13. The Tribunal asked the applicant about his claims that Hezbollah had targeted members of the Lebanese Armed Forces. That issue and those claims by the applicant had been discussed in the delegate's record of decision. The Tribunal referred to the delegate's record of decision in relation to the examples cited by the applicant. The delegate had essentially disagreed with the applicant's claims and the Tribunal indicated to the applicant that there appeared to be other issues involved in relation to the three events that he had referred to. The applicant said that Hezbollah was behind the drug trade and he claimed that in relation to the killing of the Lebanese army pilot that there had been a cover-up. In essence he still claimed that Hezbollah had targeted( on occasions) the Lebanese Armed Forces. He told the Tribunal that he disagreed with media reports about the incidents. Those media reports have been referred to by the Department delegate in the record of decision.

14. The Tribunal asked the applicant about his claims that his home had been targeted by Hezbollah in 2008. He told the Tribunal that he "thinks" Hezbollah had targeted him and he said he believed a sniper had been firing at his home and he also said that his village in Lebanon is opposed to Hezbollah. He told the Tribunal that he had only suspected Hezbollah had targeted his home in 2008 after the incidents in 2013.

15. The applicant said that he had nothing further to raise with the Tribunal in relation to his claims. The Tribunal referred to country information referred to in the DFAT country report for Lebanon dated February 2014 and which had been referred to during the course of the Tribunal's hearing. The Tribunal again noted that that information indicated that the Department assessment is that the Lebanese Armed Forces have strong links with Hezbollah and that in those circumstances it was difficult to reconcile the applicant's claims about his dealings with Hezbollah and his claims to fear harm from Hezbollah given that he was a senior Lebanese army officer. The Tribunal noted that the country report indicated that Hezbollah would tend to only target high-profile politically active and outspoken critics of Hezbollah and those people who are perceived to present a direct threat to Hezbollah's political power in Lebanon and that the report also indicated that Hezbollah had control over airport security at Beirut International airport.

16. The Tribunal also noted that the country report indicated that an officer or soldier can resign at any stage from the Lebanese Armed Forces with the approval of their commanding officer and that the Department had been told officers and soldiers can resign at any time without difficulty but that soldiers can face court-martial for not returning from leave or for refusing to follow orders the punishments can include periods of imprisonment. As indicated the applicant had claimed during the hearing that he had to be in Lebanon to resign and could not resign his commission from overseas.

17. The Tribunal referred to the delegate's record of decision . The applicant's representative said that the delegate's record of decision had been sent to the Tribunal with the application for review and confirmed that it was intended that the Tribunal be provided, on the applicant's behalf, with the delegate's record of decision.

1. The applicant said that because he is against Hezbollah he is at risk and he also said he was at risk because he was a deserter from the Lebanese government. He claimed that Hezbollah wanted to kill him. He claimed that he was at risk if he returned and he would be court-martialed for deserting. The Tribunal raised concerns about the lack of documentation that had been provided regarding the applicant's military service. The Tribunal said that it expected that there would have been more significant documentation provided in relation to the applicant’s claims that he was a senior Lebanese army officer and given the importance of that claim in relation to the context of the applicant's case the Tribunal had expected more documentation in relation to that aspect. The applicant and his representative indicated that that aspect had not been raised previously by the Department. The Tribunal indicated that it would allow the applicant and his representative further time to provide documentation.

2. The Tribunal raised concerns about the credibility of the applicant's claims and the credibility of his evidence in relation to some aspects of his claims. The applicant claimed that it was a "pile up" of issues between 2008 and 2013 that caused him to be at fear of harm from Hezbollah. The Tribunal raised its concerns about a number of inconsistencies in relation to the applicant’s claims and those aspects have been referred to during the course of the Tribunal hearing. The applicant claimed that he had memory issues and that was the reason for any inconsistencies particularly in relation to dates of incidents or the sequence of events. The Tribunal referred to inconsistencies that had been referred to in the delegate's record of decision and to certain events not being referred to in the applicant's first statutory declaration and that included the claimed shooting at his home in 2008 which he attributed to Hezbollah. The Tribunal had concerns about that claim not having been raised at an earlier time. The applicant's representative had said that the applicant had only become aware after the first statutory declaration of Hezbollah possibly targeting him 2008.The Tribunal said that the applicant's claims about Hezbollah targeting him as a senior army officer was not consistent with the country information that the Tribunal had referred to and it had also been referred to by the Department delegate.

3. The Tribunal said in those circumstances that it seemed unlikely that the applicant would be a target of Hezbollah.The Tribunal noted that the applicant claimed that the two occasions involving Hezbollah had occurred in early 2013 and that there had been no further incidents identified with Hezbollah apart from the claimed threat that he said he received directly in August 2013 apart from the conversation with another military officer about Hezbollah being unhappy with the applicant which he said occurred in around April 2013. The Tribunal noted that the applicant had been able to leave Lebanon to come to Australia without difficulty on his own passport through Beirut International airport and the security of that airport was controlled by Hezbollah. The Tribunal indicated that it had overall concerns about the credibility of the applicant's claims that he had received threats from Hezbollah and  those concerns included the applicant's evidence about what he said occurred at the checkpoints and that he had received no threats between April and August 2013. The Tribunal had raised concerns during the hearing about the lack of clarity surrounding the applicant’s claims about his military postings and in particular in relation to the checkpoint where the incidents with Hezbollah were said to have occurred.

4. The applicant's representative made oral submissions on behalf of the applicant to the Tribunal. The representative indicated that that the Tribunal could fall into error if it just relied on the DFAT country report that it had referred to and should also have regard to the other materials submitted by the applicant's representative(and which have been referred to elsewhere in these reasons). The representative indicated that a core claim  of the applicant is that he was a high-ranking officer in the Army and in that role could be seen to directly threaten Hezbollah. It was said that the applicant could be perceived to be sympathetic to opponents of Hezbollah and that the events in 2013 (carried out by the applicant) directly threatened Hezbollah. The representative submitted that the applicant's profile placed him at risk if he returned to Lebanon. The Tribunal in response noted that the applicant did not claim that he had had any difficulty between April and August 2013 and the representative indicated that Hezbollah may have been waiting for the right time to harm the applicant and that the applicant received a warning in August 2013 that Hezbollah would harm him. The representative also referred to the applicant deliberately wearing his army uniform at the airport was described as a tactical move on the applicant's part so that he could leave without difficulty. The representative also indicated that had the applicant stayed in Lebanon he would continue to voice his opposition to Hezbollah. The representative also said because the applicant did not return from military leave after [month] 2014 that he was a deserter and at risk of harm on that basis. The Tribunal allowed until 3 November 2015 for the provision of any further comments or documents or submissions on the applicant's behalf in relation to his claims.

5. The Tribunal received further documentation on the applicant's behalf on 2 November 2015. That documentation, in summary, consisted of documents in relation to the applicant's military service in Lebanon as well as documents in relation to medical reports in relation to the applicant. Where relevant those documents will be referred to further in these reasons. There were also brief further submissions that indicated all the evidence before the Tribunal indicated that the applicant was entitled to protection in Australia and that the applicant's wife and child are entitled to protection on the basis of being members of the same family unit as the applicant.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. On the basis of the documentation provided to the Department and to the Tribunal, the Tribunal accepts that the applicant is a Lebanese citizen and that the second and third named applicants are also Lebanese citizens and are members of the same family unit as the first named applicant. The Tribunal accepts that their identities are as they claim them to be. The Tribunal accepts that the applicants have no right to enter or reside either temporarily or permanently in any other country apart from Lebanon. The Tribunal accepts that Lebanon is the applicants country of nationality for convention purposes and is the receiving country for complementary protection purposes.

7. The Tribunal has considered the applicant’s claim to have a well-founded fear of persecution if he returned to Lebanon on the basis that he fears harm because he could be perceived to have an imputed or actual political opinion of being opposed to Hezbollah. In essence that claim is based around two incidents in early 2013 when he was in charge of a military checkpoint in Lebanon and he claimed that he stopped two vehicles on two occasions that contained people associated with Hezbollah and he caused those people to be detained and seized weapons and munitions from the vehicles. He also claimed harm if he returned to Lebanon on the basis that his [relative] is a prominent cleric in [mosques] in Lebanon and his [relative] is critical of Hezbollah. The applicant also claimed to fear harm because he claimed Hezbollah had fired shots at his home in May 2008. The applicant also claimed that he had made public statements against Hezbollah and in essence because of that he also feared harm from Hezbollah. He also claimed to fear harm if he returned to Lebanon on the basis that he claimed he had deserted from the Lebanese Armed Forces by not returning to duty when his leave had expired and while he had been in Australia. In submissions filed on the applicant’s behalf it was claimed that the applicant would be subject to punishment as an army deserter and referred to reports about prisons under the control of the Ministry of Defence in Lebanon. Those submissions indicated that the applicant’s claims to have a well-founded fear of harm of persecution were based on an actual and imputed political opinion against Hezbollah and his membership of a particular social group being either as a high-ranking army officer in the Lebanese army working against Hezbollah or as a member of a particular social group in that it is claimed he is a deserter from the Lebanese Armed Forces. The Tribunal has considered those claims and the evidence and country information.

8. The Tribunal is not satisfied as to the applicant’s claims that he has a well-founded fear of persecution if he returned to Lebanon on the basis of his claims and his evidence to the Tribunal. The Tribunal is also not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and to some aspects of his claims.

9. The Tribunal has considered the applicant’s evidence and his claims and the written submissions that have been made on his behalf and the documents that have been submitted on his behalf.

10. At the core of the applicant’s claims to fear harm are his claims surrounding his encounters with Hezbollah. He referred in his evidence to the two incidents that he said occurred in early 2013 when he was in charge of an army checkpoint and two vehicles were stopped that he claimed contained people associated with Hezbollah. The applicant’s evidence about those events has been referred to elsewhere in these reasons. The Tribunal has considered the applicant’s evidence about those events and the document that was provided to the Tribunal regarding the event that was said to have occurred [in] February 2013. The Tribunal’s overall assessment is that the applicant’s evidence about the two events (the applicant claimed that the second event occurred roughly a week after the first and took place around [date] March 2013) was that the applicant’s evidence was not convincing in that it appeared to the Tribunal to be very “mechanical” in that the applicant did not satisfy the Tribunal that he was giving evidence about events that he had actually been involved in but rather appeared to be speaking about the events in a very rehearsed way ( and essentially in terms of the claims in the two statutory declarations). In essence he gave the same detail in the Statutory declarations about these incidents as he did at the hearing. He made a point of referring to the vehicles being “black [specific models]” and the people in the vehicles referring to themselves as “resistance” and producing Hezbollah identity cards. Overall his evidence about these events was comparatively brief and his evidence about the second claimed incident was briefer than in relation to the first incident.  The Tribunal expected, given the criticality of these events to his claims, that the applicant would have spoken in more detail about these events or provided more detail overall about these events. The Tribunal found the applicant’s evidence about these events to be brief and essentially limited to the relatively brief details/claims  in his statutory declarations . The Tribunal has also considered the information contained in the DFAT country report for Lebanon which has been referred to elsewhere in these reasons that indicates that the Lebanese Armed Forces and Hezbollah have a close working relationship. The Tribunal notes that the Department delegate in the record of decision had also referred to country information (see pages 8 and 9  and 10 of the delegate’s record of decision) which indicated that the Lebanese Armed Forces and Hezbollah had a cooperative relationship. The Tribunal raised the DFAT information with the applicant in terms of why he would have detained and arrested Hezbollah operatives and seized weapons and munitions from them when country information indicated a close relationship between the army and Hezbollah. He told the Tribunal in response that he did not agree with Hezbollah being allowed to operate above the law and he wanted to set a good example to his men. The Tribunal is also concerned that the applicant claimed that he was transferred to [Location 4] after he received threats from Hezbollah and that he was transferred as a result of those threats. The applicant agreed that the [Location 4] posting placed him in an area of Lebanon that is essentially dominated or controlled by Hezbollah. That posting does not seem credible when considered in the context of the applicant’s claims that he was transferred because of the threat from Hezbollah. It does not seem credible to the Tribunal that if the applicant had complained of threats from Hezbollah that the Lebanese Armed Forces would have transferred him to a locality which was effectively controlled or dominated by Hezbollah and would have placed the applicant at more risk or higher risk. The transfer does not seem credible when considered in the overall context of the applicant’s claims and causes the Tribunal to further doubt the credibility of the applicant’s core claims. The applicant’s claims that he did not agree with Hezbollah being able to operate above the law and wanted to set a good example to his men has been considered by the Tribunal. The applicant claimed to be a long-term army officer and told the Tribunal that he believed Hezbollah effectively controlled the army. The country information, as indicated in these reasons, refers to the close relationship between the army and Hezbollah in Lebanon. The Tribunal does not accept as credible that the applicant would stop and detain and arrest Hezbollah members in the light of the country information and the applicant’s long-term background in the army. The applicant gave evidence about the two incidents in early 2013 but was very vague about other incidents where he claimed he stopped vehicles. The Tribunal has also considered the applicant’s claims that he deserted from the Lebanese army and in those circumstances desertion by an officer does not seem consistent with someone who claimed to be concerned to set a good example to his men by stopping Hezbollah members. The Tribunal does not accept the applicant’s claims that he stopped, detained and arrested Hezbollah members in early 2013. The Tribunal in those circumstances and having regard to the evidence and the country information and its assessment of the applicant’s credibility does not accept as credible that the applicant would stop and detain Hezbollah members because he did not believe Hezbollah was above the law and he wanted to set a good example to his men.

11. The Tribunal has considered the applicant’s claims and the evidence and relevant country information in relation to the applicant’s claims. The Tribunal has referred elsewhere in these reasons to its concerns about inconsistent evidence from the applicant about a number of issues and to its concerns about the credibility of a number of aspects of the applicant’s claims. The Tribunal has also had regard to its assessment of the applicant’s credibility in relation to his claims in his evidence. The Tribunal accepts, on the basis of medical and other evidence that has been provided to it, that the applicant has received medical treatment in relation to anxiety and depression and has received treatment for mental health issues. That evidence includes material provided to the Tribunal after the Tribunal hearing and including a psychiatric report from a consultant psychiatrist dated October 2015 but referring to an assessment based on a consultation [in] August 2014. It also includes a letter from a general practitioner dated October 2015 and a further report from [the welfare agency] dated October 2015 in relation to the applicant. Some of those reports refer to the applicant claiming memory difficulties because of his mental health issues. The Tribunal is prepared to accept that the applicant suffers from anxiety and that is affected by concern over his extended family in Lebanon and his concerns about the outcome of his protection Visa application. The applicant told the Tribunal on a number of occasions during the hearing that he has memory difficulties and that causes him to forget dates surrounding incidents. The Tribunal has considered that evidence submitted on behalf of the applicant and the applicant’s evidence in considering its assessment of the applicant’s credibility in the credibility of his claims.  The Tribunal is prepared to accept that the applicant’s claims that he has mental health issues and that affects his memory to some extent. However the Tribunal after considering that aspect does not accept that the Tribunal’s concerns about the applicant’s credibility and the credibility of his claims and its assessment of the applicant’s credibility is based on the fact that from time to time the applicant had difficulty in remembering precise dates surrounding events. The Tribunal’s concerns about the credibility of the applicant and his claims relate to matters of more substance than just about the applicant recalling particular dates of incidents. The Tribunal’s concerns relate to the applicant’s core claims. The Tribunal has referred to the applicant’s claims about the two incidents at the army checkpoint in early 2013.

12. The Tribunal has referred to its concerns about the applicant’s evidence in relation to those claims and also in the context of the available and relevant country information contained in the DFAT country report which has been referred to in these is also consistent with other country information referred to by the Department delegate in the delegates decision record. That information indicates that the Lebanese Armed Forces and Hezbollah have a close working relationship. That country information is not consistent with the applicant’s claims that he would be involved in detaining, arresting and seizing weapons and munitions from Hezbollah operatives in early 2013 as he claimed. That claim by the applicant in the light of the available and relevant country information does not seem credible to the Tribunal. The Tribunal has also referred to the applicant’s evidence about these claimed events and to the Tribunal’s observations and concerns about the applicant’s claims and evidence in relation to these events. The Tribunal accepts that the information contained in the DFAT country report for Lebanon dated February 2014 provides comparatively recent and credible information relevant to the applicant’s claims.

13. The Tribunal has also considered the applicant’s claims and evidence in relation to Hezbollah shooting at his home in 2008 and also to his claims that his fears harm because of the activities of his [relative] who is a cleric and who he claims is critic of Hezbollah. The applicant did not refer to either of those claims in his first statutory declaration dated February 2014 in support of his protection Visa application. He made both claims in his subsequent statutory declaration which is dated June 2014. The Tribunal has referred elsewhere in these reasons to the applicant’s evidence about these claims. The Tribunal has considered the applicant’s evidence about these claims but does not accept that the applicant has a well-founded fear of harm of persecution on the basis of these claims. The Tribunal believes that the applicant’s evidence about the claimed shooting by Hezbollah at his home in 2008 was essentially speculation by the applicant and was not based on any actual knowledge by the applicant that Hezbollah was targeting the applicant in 2008. The applicant’s evidence to the Tribunal did not suggest to  the Tribunal that there would be any reason why he would have been targeted by Hezbollah in 2008 and as indicated the applicant did not raise this in his initial statutory declaration in support of his protection Visa application. In essence the applicant claimed that he thought Hezbollah had been targeting him and that his village was opposed to Hezbollah. The Tribunal after considering the applicant’s claims and evidence does not accept that Hezbollah targeted and shot at the applicant’s home in 2008 as the applicant claims. The Tribunal has also considered the applicant’s claims that he fears harm because of his  [relative] who is a cleric. That claim was not raised in the applicant’s first statement. The applicant told the Tribunal that no harm had come to his [relative] despite the applicant claiming that his [relative] was opposed to Hezbollah. The applicant’s evidence to the Tribunal and his claims about this issue were brief. The Tribunal believes that if the applicant had a well-founded fear harm on this basis it would be reasonably expected that he would have raised it in his first statement The Tribunal after considering the evidence and noting the lack of any previous harm to the applicant’s brother or to the applicant does not accept that the applicant is at risk of harm on the basis of this claim.

1. The Tribunal has also considered the applicant’s claims that he is at risk of harm because he has publicly criticised Hezbollah. The applicant’s evidence about that  claim has been referred to elsewhere in these reasons. The Tribunal overall found that it was difficult to get clarity from the applicant about the details surrounding this claim. The Tribunal after considering the applicant’s evidence does not accept that the applicant has a well-founded fear of harm on the basis that he claims that he has made critical comments about Hezbollah. The Tribunal does not accept that the applicant’s evidence about speaking to other military officers or even to the mayor of his village or even at social events in critical terms about Hezbollah supports the applicant’s claims that he has a well-founded fear of harm on this basis. The applicant essentially provided no significant detail about what he claimed he said to people in criticising Hezbollah and the applicant’s evidence about the circumstances in which he spoke to people were indicative or suggestive of almost private conversations.  As indicated it was unclear as to the extent that the applicant was actually critical of Hezbollah in terms of the details of any of those claimed conversations. The Tribunal notes that the applicant did not raise this claim in his first statutory declaration in support of his protection Visa application but raised the matter in the June 2014 statutory declaration. The Tribunal believes that it would have been reasonable for the Tribunal to assume that if the applicant had a well-founded fear of persecution based on the claims surrounding his [relative], the shooting at his home in 2008 and his claimed public criticism of Hezbollah that he would have raised those issues in his initial statutory declaration in support of his protection Visa application. The Tribunal notes the applicant’s explanation surrounding the omission of his claim in relation to Hezbollah shooting at his home in 2008 but as indicated does not accept that the applicant has a well-founded fear of harm on this basis. The Tribunal notes that the applicant left Beirut without incident on his own passport and apparently dressed in his military uniform from Beirut International airport which as indicated has a strong Hezbollah presence. That fact also does not support the applicant’s claims that he has a well-founded fear of harm from Hezbollah should he return to Lebanon either now or in the reasonably foreseeable future. The applicant essentially claimed that he was lucky in being able to leave Lebanon but the fact that he left Lebanon without incident on his own passport through Beirut International airport is not consistent with his claims that Hezbollah was seeking to harm him and is not broadly consistent with his wider claims about fearing harm from Hezbollah. The Tribunal after considering the evidence and country information does not accept that the applicant was lucky in being able to leave Lebanon safely. The Tribunal believes the applicant was of no interest to Hezbollah and was able to leave Lebanon without difficulty on that basis.

2. The Tribunal has considered the applicant’s evidence in support of his claims and has also considered its assessment of the applicant’s credibility. The Tribunal after having regard to its concerns about aspects of the applicant’s claims and his evidence, and which have been referred to elsewhere in these reasons, does not accept that the applicant is a credible witness and also does not accept the credibility of a number of the applicant’s claims.

3. The Tribunal notes the document that has been provided in relation to the claimed arrest and seizure of weapons and munitions which was said to have occurred [in] February 2013. The Tribunal because of its wider concerns about the applicant’s claims and his evidence and its assessment of its credibility does not believe that this document overcomes the Tribunal’s concerns in relation to the credibility of the applicant’s claims about the events that he said occurred in early January 2013 in relation to Hezbollah.

4. The Tribunal after considering the applicant’s claims and the evidence and having regard to available and relevant country information and the Tribunal’s assessment of the applicant’s credibility does not accept that the applicant was involved as he claimed in two incidents in early 2013 in detaining, arresting and seizing weapons and munitions from Hezbollah operatives. In those circumstances the Tribunal does not accept the applicant’s claims that the applicant was subsequently warned by a fellow officer that Hezbollah was unhappy with the applicant. The Tribunal notes that the applicant claimed that he had no difficulty in relation to any threats or further encounters with Hezbollah from April to August 2013. The Tribunal after considering the applicant’s evidence and its assessment of his credibility also does not accept his claim that in August 2013 he was warned by a Hezbollah leader that Hezbollah wanted to kill the applicant. The Tribunal also does not accept after considering the applicant’s claims and the evidence and relevant country information that the applicant was transferred to the [Location 4] posting in 2013 because he was at risk of harm from Hezbollah.

5. The Tribunal does not accept on the basis of the evidence and the country information that has been referred to elsewhere in these reasons  that the applicant faces a real chance of serious harm on the basis of his claims that he would be harmed by Hezbollah if he  returned to Lebanon either now or in the reasonably foreseeable future.

6. The Tribunal has  reservations about  the “search and investigate “ document that has been provided regarding the applicant being described as an “army deserter’ based on the applicant’s evidence that he was so concerned to leave Lebanon and left in a “rush” that he did not think about the consequences of becoming a deserter from the Army or turned his mind to resigning his commission while he was still in Lebanon.  It seems on the basis of the DFAT country information that has been referred to elsewhere in these reasons that the applicant could have resigned from the army while he was in Lebanon. The Tribunal expressed its concerns about the veracity of the “search and investigate” document during the course of the Tribunal hearing. That aspect has been referred to elsewhere in these reasons.

7. The Tribunal notes that reference was made to (and reliance placed on by the applicant) in the written submissions of July 2015 to the decision of the Refugee Review Tribunal of 15 January 2014 in  RRT decision 1217887. The Tribunal notes the country information referred to in that decision (the Refugee Review Tribunal decision dated 15 January 2014 by member Filip Gelev (RRT 1217887). The Tribunal in that decision refers to country information relevant to the applicant’s claims. Extracts from that decision include (see paragraphs 65 and 73 of that decision)

   “As to the likely punishment for desertion, DFAT advised in August 2013 (see DFAT report 1534, released to MRT/RRT 15 August 2013, LBN42474):

   Desertion from the Lebanese Armed Forces (LAF) is a military crime covered by the Military Judicial Law. The said law makes a distinction between deserters who remain in-country, and those who flee to a foreign country, as well as between cases of desertion in times of war and peace. Severe penalties are imposed for desertion to a foreign country, and in cases of desertion that occur during wartime. Penalties are also heavier for deserting officers than for privates.

   Article 109 of the Military Judicial Law covers desertion to a foreign country, and is therefore applicable to the two cases detailed in RRT Country Information Request LBN42474. The article states that the private who crosses the Lebanese borders without permission or abandons his unit for a foreign country, is considered to have deserted the LAF after three days of absence without legal justification during peacetime and after one day of absence during wartime. Desertion is punishable by a sentence of two to five years imprisonment during peacetime and of up to ten years during wartime. Privates who: abandon a military zone or an area where a state of emergency is declared; steal military property (ammunition, weapon, animals, or uniforms); desert while on duty or in the face of rebels; or repeat the offence of desertion; also face the ten-year prison term. …

   Post did not come across any media reporting of cases where a sentence for desertion from the LAF was imposed. However post followed this up with a Colonel from the Strategic Security Branch, Directorate of Intelligence, LAF. The Colonel told post that deserters who return to Lebanon are arrested at the airport by General Security officers. The Military Tribunal's judgements are subsequently enforced and deserters are discharged from the LAF. Colonel Sleilati said that desertion was an internal issue, which explains why the enforcement of military judgements against deserters does not appear in the news.”

8. The Tribunal in those reasons also referred to further country information and noted (paragraph 73).

   “In 2010 the Lebanese Centre for Human Rights (CLDH) released a report on prison conditions in Lebanon. The CLDH was not granted access to the Ministry of Defense prisons. However, the report provides information regarding Ministry of Defense facilities in addition to accounts of mistreatment of prisoners held in these facilities, assessed on the basis of individual cases brought to the organisation's attention. The report states;

   “:Several prisons are ruled by intelligence services and are used as private prisons, where the inmates remain under the authority of the same services that arrested and investigated them, under a limited or nonexistent supervision of the Judiciary.The prisons of the Ministry of Defense, under the control of the Lebanese military intelligence services, are also part of the Lebanese official list of prisons.

   The Detention Center of the Ministry of National Defense

   The prisons of the Ministry of National Defense have been legalized as official prisons by decree nº6236 of 17/1/1995.The Detention Center of the Ministry of National Defense is located in the Ministry's basement, in Yarze, southern suburbs of Beirut. It is used both as an investigation place and as an official prison, entitled to holding persons who are unconvicted, convicted, minors, adults, men or women. The only forces responsible for this prison are the military intelligence services and their armed branch Mukefaha.The persons held in this prison are those tried – or susceptible of being tried – by the military courts and the Justice Council, which are special jurisdictions deprived of independence visà-vis the military apparatus for the military courts, and the political authorities for the Justice CouncilCLDH having been denied access to the prisons of the Ministry of National Defense, the information below is based on testimonies of persons having been recently held there. It is worth noting that the interrogation and detention conditions in the Ministry of National Defense have been repeatedly denounced by human rights organizations, and CLDH is astonished that the Ministry of National Defense prisons have not been erased from the list of official prisons at the time of the political transition of 2005 and of the release of Samir Geagea, Gerges al Khoury and Khalil Matar, who were being held in these premises.

   Similarly, the prerogatives of the military intelligence services have not been revised. Arrests, torture, and detention in this place continue with impunity. Waves of arrests among the persons accused of having planned an attack against Hezbollah leader Hassan Nasrallah, then among the alleged Islamist activists in Tripoli, then among the alleged supporters of Fatah El Islam, and more recently among the alleged spies of the Israeli enemy have represented since 2005, periods during which dozens or even hundreds of persons were interrogated, detained, and often tortured in the Ministry of National Defense prisons.

   Regarding the interrogation conditions, several points have to be raised:-

   Many detainees complain of having been severely tortured in the Ministry of Defense in view of forcing them to sign confessions.

   - The military doctor is in charge of the detainees' examination and various information mentions his participation in torture sessions. Any inspection by an external doctor takes place under the supervision of the military doctor.

   - The detainees are often presented to the investigating judge in presence of the military intelligence services, and if the raises any complaint about torture in front of the investigating magistrate, he is subjected to severe reprisals (torture, and most particularly prolonged deprivation of sleep).

   What characterizes the prisons of the Ministry of National Defense is the absence of effective external control.

   Detainees have been arrested and interrogated by the military intelligence services that also attend the investigating judge hearings and monitor the lawyer and family visits; no NGO is granted access to the premises and the ICRC visits being confidential, there is no evidence that an effective external control is taking place in the Ministry of Defense prisons. In this context, allegations of torture, often accredited by the  physiological and psychological troubles of the former detainees, are quite credible and should encourage the authorities to take radical decisions.”

9. The Tribunal on that occasion noted in relation to discussing another report about prisoners being held by the Ministry of Defence that the detainees referred to in that report had been fighting against the Lebanese Armed Forces and were not military personnel.

10. The Tribunal on that occasion said that it had “not been able to find specific information on the treatment that an LAF compared to the treatment of civilians” in relation to detention in prisons under the control of the Ministry of defence (see paragraph 70 of the decision record of the Tribunal on that occasion). The extracts referred to by the Tribunal in that decision related to the treatment of non-military detainees in the Ministry of defence prisons.

11. As indicated elsewhere in these reasons the information contained in the DFAT country report for Lebanon dated February 2014 indicates that “an officer or soldier can resign at any stage from the Lebanese Armed Forces with the approval of their commanding officer. Contacts have told DFAT that officers and soldiers can resign at any time without difficulty. Consistent with similar practices in other regular military forces, soldiers can face court-martial for not returning from leave or refusing to follow orders. Punishments can include periods of imprisonment.” That information strongly suggests that the applicant could have resigned from the Lebanese Armed Forces without difficulty. The applicant claimed that he could not do so unless he was in Lebanon. The DFAT information referred to does not suggest that resignation from the Lebanese Armed Forces required the applicant to be physically within Lebanon. The DFAT country report also notes that the department is not aware of any specific risk of violence to former members of the Lebanese Armed Forces.

12. The Tribunal has considered the applicant’s claims and his evidence and available country information and also its assessment of the applicant’s overall credibility in relation to his claims. The Tribunal accepts based on the information provided to it by the applicant or on his behalf that the applicant was at some stage a serving military officer in the Lebanese Armed Forces. The applicant claimed he was on leave from the military when he came to Australia. He came to Australia in November 2013 and had previously been in Australia as a visitor. He made his protection Visa application in February 2014 approximately three months after he had arrived in Australia. The documentation provided to the Tribunal includes a Lebanese military identification card which was said to have been issued in August 2014 and was said to be valid until [November] 2014 (a period of time when the applicant was in Australia). Very little documentation about the applicant’s military service had been provided to the Department or  the Tribunal until the Tribunal raised its concern about that issue during the Tribunal hearing. The Tribunal notes the documentation that has been provided and as indicated accepts that the applicant at some stage was a serving military officer in the Lebanese Armed Forces. The further documentation that was provided to the Tribunal related to the applicant graduating from a military academy in [year] as a [Rank 2] together with a document issued in 2008 and a payslip from March 2011 showing the applicant’s rank at that time as a [Rank 3]. A temporary military card was provided which was issued in August 2014 (when the applicant was in Australia). No documentation has been provided in relation to the applicant being on approved leave from the military while he has been in Australia and it was claimed that the applicant’s leave had been extended to [month] 2014. The Tribunal regards the lack of documentation in relation to that issue with concern and as indicated the Tribunal raised the general lack of documentation about the applicant’s military history during the Tribunal hearing. The Tribunal believes, having regard to the applicant’s claimed lengthy military service, that it would be reasonable to have expected that the Tribunal would have been provided with documentation that indicated or showed that the applicant was on approved military leave up until [month] 2014 as he claimed and that would have been provided in response to the Tribunal’s general concerns about the lack of documentation in relation to the applicant’s military service. As indicated, in essence, the applicant claimed that he was on leave from the military from when he arrived in Australia in November 2013 up until [month] 2014. The Tribunal, having regard to the totality of the applicant’s claims and the criticality of his claim that he is an army deserter believes it would be reasonable to expect that the applicant, as part of responding to the Tribunal’s concerns about his military history, would  have provided documentation that indicated that he was on approved leave from the Lebanese military and also provided some evidence about the temporary military card that was provided to the Tribunal and which was said to have been issued to the applicant in August 2014. No evidence, for example, by way of any supplementary statement or statutory declaration from the applicant has been provided about how the applicant obtained that card .The applicant had claimed to the Tribunal that he was at risk of harm because he would be a deserter from the Lebanese army because he had not returned from leave to Lebanon. The Tribunal notes Section 5AAA (2) of the Act provides “for the purposes of this Act, it is the responsibility of the noncitizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim” and that requirement arises in relation to a noncitizen who claims to be a person in respect of whom Australia has protection obligations. The applicant is such a person and has the responsibility to provide sufficient evidence to establish his claims. As noted elsewhere in these reasons the applicant came to Australia on a visitor visa and then subsequently applied for a protection Visa.

13. The Tribunal has considered the applicant’s claims in relation to the desertion issue  and has also considered documentation that has been provided by the applicant and including the “search and investigate” document which has been referred to elsewhere in these reasons. The Tribunal has considered the applicant’s claim that he could not resign his commission from the Lebanese Armed Forces while he was in Australia. The Tribunal however has also considered the information provided in the DFAT country report which has been referred to and which indicates that the Department has been told that officers and soldiers can resign at any time without difficulty. That information does not suggest or indicate that the applicant could not have resigned his commission while he was on leave. The Tribunal’s concerns about the veracity of the search and investigate document was raised with the applicant during the Tribunal hearing. The document refers to a service warrant number and a date of “[date]/[month]/2002” and also includes a paragraph where the applicant is referred to and  refers  to the applicant’s leave having ended on “[date]/[month]/2014”.

1. The Tribunal has considered that document. However  because of the Tribunal’s concerns about the credibility of the applicant’s claims and the Tribunal’s overall assessment that the applicant is not a credible witness and the concerns about the veracity of that document does not believe that document overcomes the Tribunal’s concerns that the applicant is not a deserter from the Lebanese army as he claims. The applicant claimed that he was provided with this document through a friend in the Lebanese army. The document purports to be a cable dispatch. The document has no formal heading or carries no formal military heading but does purport to have a seal of the Army command on it and also purports to be addressed to various army commands and military groups. The Tribunal has been provided with a claimed copy of the original of the document together with an English language translation. The Tribunal believes that it would be reasonable to expect that a formal document issued for search and investigation purposes in relation to the applicant would have had a more formal official  military appearance in terms of the letterhead and other aspects. As indicated the document purports to be a cable dispatch but then also purports to have a seal of the Army command on it. The Tribunal continues to have concerns about the veracity of the document.

2. The applicant claimed that he could not return to Lebanon because Hezbollah would harm him. The Tribunal having regard to the DFAT information referred to and the Tribunal’s concerns about  the applicant’s credibility and the lack of any documentation that the applicant was on approved leave is not satisfied that the applicant is a current serving member of the Lebanese Armed Forces. The Tribunal has considered the military identification document that has been referred to but given the Tribunal’s concerns does not accept that document overcomes the Tribunal’s wider concerns about the applicant and his claims. In those circumstances  the Tribunal does not accept that the applicant faces a real chance of serious harm if he returned to Lebanon either now or in the reasonably foreseeable future on the basis that he is a deserter from the Lebanese Armed Forces.

3. The Tribunal has considered the applicant’s claims both individually and cumulatively and has considered the totality of the evidence in relation to the applicant’s claims and had regard to available and relevant country information and also had regard to submissions made on the applicant’s behalf. The Tribunal has referred to its assessment of the applicant’s claims and the evidence and also to its concerns about the credibility of the applicant’s claims and his evidence. The Tribunal does not accept on the basis of the evidence for materials and information before it that the applicant faces a real chance of serious harm for a convention based reason if he returned to Lebanon either now or in the reasonably foreseeable future.

4. The Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon that he faces a real risk of significant harm. The Tribunal has considered the applicant’s claims and the evidence and available and relevant country information in relation to the applicant’s claims. The Tribunal has referred elsewhere in these reasons to its assessment of the applicant’s claims and the evidence and the available and relevant country information. As indicated the Tribunal does not accept that the applicant is a deserter from the Lebanese Armed Forces or that he faces a real risk of significant harm from Hezbollah. The Tribunal has referred elsewhere in these reasons to its assessment of the evidence in relation to the applicant’s claims on these issues and to its assessment of the applicant’s credibility in relation to these issues and to the documentation provided by the applicant and the submissions made on the applicant’s behalf. In those circumstances and for the reasons that have been considered and discussed elsewhere in this decision the Tribunal does not accept that the applicant faces a real risk of significant harm on the basis that he would be arrested and imprisoned for being an army deserter if he were to return to Lebanon or that he faces a real risk of significant harm from Hezbollah if he were to return to Lebanon.

5. The Tribunal has considered the definition of significant harm contained in s.36(2A) of the Act as well as the relevant definitions contained in s.5(1) of the Act in terms of the applicant’s claims. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to  Lebanon that there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to( e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, or pain or suffering, whether physical or mental, intentionally inflicted on the person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature, such as that would meet the definition of cruel and inhuman treatment or punishment in s.5(1) of the Act. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Act which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

   Overall Summary

6. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

7. The Tribunal affirms the decision not to grant the applicants Protection visas.

   James Jolliffe
   Member