1414754 (Refugee)

[2015] AATA 3328

1414754 (Refugee) [2015] AATA 3328 (20 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414754

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:20 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2015 at 2:06pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

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

3. The applicant appeared before the Tribunal on 5 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CLAIMS AND EVIDENCE

   Protection Visa Application

5. The applicant claimed that he was a Shi‘a Muslim whose employment as [two occupations] required him to work in different suburbs of Beirut, and he faced harassment, criticism and abuse in the Christian and Sunni areas because he was Shi‘a.

6. He then moved to the dahiyya (southern suburbs of Beirut which are Shi’a-dominated). He thought he would be safe but there were random bombings and many people were killed. [In] August before he came to Australia there was a major bombing in the area and he nearly lost his life – 18 people were killed and 200 wounded.  This had a great impact on him.

7. He also experienced discrimination and abuse at work.  The political situation in Lebanon is explosive and violent acts can happen at any moment.   

   RRT Hearing

8. The applicant was advised that there were few documents presented so the Tribunal needed to assess the applicant’s credibility and he needed only to state something as a fact if he knew it to be a fact.  He agreed to do this.

9. He claimed that if he returned to Lebanon he would be caught up in a bombing.  There had been six or seven bombs in recent times; he had missed a bombing by five minutes just before he left Lebanon.  He also claimed he would be kidnapped because he supported groups fighting Islamic state.

10. He was asked to define what he meant by support, he claimed he just thought they were doing the right thing.  Asked why thinking supportively of people who fought Salafists would make him a target for kidnapping, he claimed that things were different now and every Shi’a was being targeted now.

11. He was asked if all one and a half million Shi’a in Lebanon were being targeted for bombing and kidnapping and he claimed they were.  He claimed that he supported all groups that fought Islamic State such as the Lebanese and Syrian armies, Hizbullah and the US and Western governments who were fighting Islamic State.  Asked who would target him, he claimed that Islamic State, Jabhat al-Nusra or al-Qa’ida would do this.  He had no other claims.

12. He claimed every Shi’a could be kidnapped or killed in a bombing.  He was asked how many Shi’a civilians had been kidnapped in Lebanon and he claimed he didn’t know exactly.  Asked if he knew of any, he claimed he had heard from the news that lots of Shi’a had been kidnapped.  He was asked if he had any evidence to support this given the Tribunal was unaware of any such incidents, and was asked to provide evidence to support this following the hearing. 

13. Neither he nor any of his family had been the subject of a kidnapping, but he claimed his father passed away when the applicant was a child in [year] and it may have been a plot.  It was put to him that this was long before IS or JAN were in existence and he claimed that the government had not been able to protect his father and wouldn’t be able to protect the applicant.

14. It was put to him that he lived in the Shi’a-dominated area of Beirut and wasn’t going to live in Salafist areas in Tripoli.  He claimed that his job required him to go to areas dominated by Salafists and he may come into contact with him.  Asked if he had been subject to any kidnapping attempt he claimed he hadn’t but people told him to leave once they found out his Shi’a name.

15. Asked why he feared being killed in a bomb attack, he claimed that he escaped a car bomb by five minutes.  The bombings only happened in the dahiyya.  The bomb attack occurred on [date in] August about noon.  He didn’t know exactly but it may have been just before or just after 12 noon.  He was a supervisor for the [business] company.  He wasn’t targeted but just a sporadic attack.

16. Asked whether he would be targeted by a bomb attack, he claimed he had survived once and could be caught in a blast any day.  Asked how many bombings since this bombing occurred he claimed there was two or three.  It was put to him that this meant an average of about one a year.  He claimed many attacks had been stopped.  He was asked to provide evidence relating to how many bombings had occurred and how many had been foiled in the dahiyya.

17. It was put to him that the member had been to the dahiyya twice in the previous six months and the security was tight but everyone seemed to be getting on with their lives, walking and shopping and he was asked why he couldn’t do the same.  He claimed he needed to live in peace and would be putting his life at risk every time he walked outside the house, and it was different if one lived there.

18. He was advised about s 424AA of the Migration Act and it was put to him that he had claimed the bomb attack he narrowly missed occurred around noon, yet country information indicated that the large explosion occurred early in the evening. There was an inconsistency between his recollection of the bomb timing and the actual time of the bombing and this may lead the Tribunal to believe that he had fabricated his claim to have been near the bomb when it went off.

19. He claimed that he couldn’t remember exactly what the time was.  He left the streets at about 4.30 pm and it happened just before he finished so it may have been four pm.  He was asked why there was such a difference now in the time he claimed.  He claimed it had been two years and he couldn’t recall the exact time.

20. He was asked what discrimination and abuse he had suffered, and he claimed he suffered harassment.  He dealt with complaints and when they found out his name they complained about the role of Shi’a in the country.  He was asked why they didn’t complain about [his company’s] service, and said that they were like that.  It was put to him that he was a supervisor in his company so his religion was no professional barrier.  He claimed his religious harassment from dealing with the customers affected him psychologically.

21. He was again asked to provide a list of bombings (including those foiled attempts) in the dahiyya by date, as well as information to support the claim regarding Shi’a being kidnapped.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant arrived in Australia on a [temporary] visa [in] September 2013, having visited Australia twice previously in 2006 and 2007.  He lodged a protection visa claim [in] October 2013.  I have sighted his passport and accept that Lebanon is the applicant’s country of nationality. 

23. The applicant is a [age] year old, single Shi‘a Muslim.  He claimed that he feared caught in a bombing or kidnapped because he was Shi‘a and supported groups fighting Islamic State

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

25. I note that the applicant’s post-hearing submission contained a letter from a [contact person] from [a welfare agency] dated [in] January 2015 that stated the applicant was receiving weekly psychotherapy sessions at [their centre].  The letter stated the applicant complained of 10 issues relating to his personal health including memory loss. 

26. The applicant never mentioned this letter during the hearing nor is there any indication as to how many sessions he attended or whether he was still attending them at the time of the hearing.  I lend it little weight in determining the validity of the applicant’s claim given the lack of corroborating evidence he provided and the actions he has or hasn’t undertaken in response to his claims. 

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

    Caught in a bombing

28. I do not accept that the applicant was nearly caught in a bomb blast before he came to Australia and that there is a real chance that he could be caught in a bomb blast on return to Lebanon.  To begin with, he claimed that the bomb blast he narrowly avoided [in] August 2013 occurred just before or just after noon which is inconsistent with country information that indicates the blast occurred in the early evening.

29. I do not accept that this inconsistency is due to the fact the incident occurred two years previously.  Given the seriousness of the incident and the fact that it is the only bomb attack he had been near to experiencing it is reasonable to believe that he would have had a reasonable recollection of the time of the day that it occurred.  I have taken into account the [welfare agency] letter and the applicant’s claim that he suffered memory loss but also note that there is nothing to indicate he does actually suffer memory loss, only that he claimed this was the case.  He did not claim during the hearing that his ability to recall the time consistently was due to memory loss, only that it had occurred two years ago.

30. While there have been bombings in Shi‘a areas of Beirut (the applicant provided post-hearing media reports of bombings that occurred in January 2014 in which four people were killed and one in June 2014 in which a security officer was killed) I do not accept that the applicant was or that there is a real chance that he would be specifically targeted by them.  I note that this is a very small number of bombings and an equally small number of casualties out of a population in the southern suburbs of Beirut of 900,000 people[1]  such that the chance of the applicant being caught in a blast is remote.

    [1] >

    I also note that the applicant is employed by a large commercial [business] company as a supervisor so has access to financial resources, and country information indicates that people are free to relocate to mixed areas that are particularly prevalent in Beirut.[2] 

    [2] DFAT Country Report – Lebanon, 25 February 2014, p 22.

31. Although I am not satisfied that the applicant would be targeted by, or the incidental victim of a bomb attack because he lived in the dahiyya, he has the financial resources to relocate if he so chose and his unwillingness to do so indicates that he has no fear of returning to the area in which he lives. 

    Subject of a kidnapping

32. I do not accept that there is a real chance that the applicant would be the target of a kidnapping simply because he was of the Shi’a faith or because he supported those that fought IS.  There is no country information to indicate that Shi’a Lebanese civilians are targeted for kidnapping, nor has he, any members of his family or any friends been the subject of a kidnapping attempt.  He was unaware of how many Shi’a had been kidnapped and simply stated he knew that ‘lots of Shia’ had been kidnapped because ‘he had heard from the news’.  He was asked to provide evidence post-hearing regarding instances of Shi’a civilians being kidnapped in Lebanon, but his post-hearing submission failed to make any reference to this claim nor did it provide any evidence to support it even though he had been asked to do so.

33. Nor do I accept that he would ever be perceived to be a supporter of those fighting IS or that there would be a real chance that he would be targeted for so doing.  He only supported them insofar as he thought every group who fought IS was doing the right thing and, in a country such as Lebanon where Shi’a and Christians make up more than two-thirds of the population it would be a widely held sentiment.  There is also no country information available to the Tribunal, nor was any provided by the applicant, that supported such an assertion.

    Other Issues

34. I do not accept that the applicant experienced abuse and discrimination at work.  Country information indicates that there is a high degree of tolerance for religious diversity in Lebanon, and what the applicant describes is at best an argument between individuals (the other being the customer) with differing opinions that did not lead to anything.  He self-admittedly suffered no serious harm at work and has been promoted to the position of supervisor which indicates a meritocratic work environment. Therefore I find that there is not a real chance that the applicant will suffer serious harm, including from any psychological harm, in the future by reason of any abuse or discrimination at work, from either customers or his colleagues.

    Complementary Protection

35. Because I do not accept that the applicant narrowly missed a bomb attack in 2013 nor that there is a real chance that he would be targeted by, or an incidental victim of further bomb attacks in the future or that there is a real chance that he will be the subject of a kidnapping attempt, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

36. Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

37. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

38. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

39. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

    2.        Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    3.        If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    4.        In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.