1416271 (Refugee)

1416271 (Refugee) [2015] AATA 3332 (24 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416271
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Shahyar Roushan
DATE:24 August 2015
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 August 2015 at 11:02am
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
Background, Claims and Evidence

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, a Sunni Muslim, is [age] years old and a citizen of Lebanon. He arrived in Australia [in] December 2013 on a Visitor visa. He applied to the Department of Immigration (the department) for a Protection (protection) visa [in] April 2014.
In his application for a protection visa the applicant essentially claimed that he comes from a Sunni family and his suburb is on the border of the area where Sunnis and Alawis are engaged in an armed conflict. He claimed that ‘as a young man’ he used to go out and have a few drinks, but after the militant Muslims became a dominant power in the city, he was subjected to threats and told to stop his ‘bad behaviour’ otherwise he would be ‘tortured’. He then decided ‘to do my best to avoid any problems with them’. He was also pressured to join Sunni militias fighting against Alawis. At that time he worked as [an occupation] and did not need their money. He ‘refused their pressure’ and as a consequence, [in] August 2013, he was told that unless he starts his military training he would be considered an enemy and an Alawi agent. He became afraid and contacted his father to arrange an Australian visa for him. He received his visa in December 2013 and subsequently travelled to Australia. He fears being forced to carry arms in Lebanon and getting killed.
In his Form 80 (Personal particulars for assessment including character assessment) the applicant had indicated that he resided at a single address in Tripoli continuously from [year] to December 2013 and that he worked as [an occupation] at [a business] in Tripoli from June 2005 to December 2013. He also indicated that he had visited [another country] for ‘business’ [in] July 2013.
The applicant was interviewed by a delegate of the Minister [in] September 2014 and provided further evidence to the department. Where relevant the applicant’s oral evidence to the delegate is discussed below.
The delegate refused to grant the visa [in] September 2014. The delegate did not accept that the applicant would be forced to join a Sunni militant group and take arms to fight the Alawis in Jabal Mohsen or that the applicant would be harmed if he were to return to Lebanon. The delegate was not satisfied that the applicant faces a real chance of serious harm for a Convention reason if he were to return to Lebanon. Nor was she satisfied that there is a real risk that the applicant will be subjected to significant harm if removed to a receiving country.
The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.
The applicant appeared before the Tribunal on 18 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. Where relevant the applicant’s oral evidence to the Tribunal is discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Relevant Law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the DFAT Country Report Lebanon (published on 25 February 2014) and the DFAT Thematic Report-Sectarian Violence in Lebanon (published on 18 December 2013).
Analysis, Reasons and Findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal did not find the applicant to be a truthful and credible witness. In reaching this view, the Tribunal has had regard to the numerous inconsistencies in his evidence, as well as other reasons detailed below.
First, the applicant provided inconsistent evidence in relation to his residential addresses and whereabouts in Lebanon. According to his Form 80, the applicant resided at a single address in Tripoli continuously from [year] to December 2013. In his written evidence to the department, the applicant had essentially stated that after he was threatened by a militia in August 2013, he became afraid and contacted his father in Australia to arrange a visa for him. He came to Australia when he received his visa. The applicant did not claim that he was forced to live in hiding or away from his family home at any time.
In his interview with the department, the applicant claimed that he was in hiding at his grandparents’ house [for] three months. At the Tribunal hearing, however, he stated that he used to hide from the people who were after him, staying at various places, including his aunt’s house, his grandparents’ house or at [a certain village]. When asked what was the longest period of time he had spent in hiding, he said he was in hiding at his grandparents’ house for a period of one month from [November] 2013.
The information the applicant had provided to the delegate orally was put to him under s.424AA. The applicant explained that he resided at his grandparents’ house [for] one month, but he also resided at his grandparents’ house in the village. The Tribunal does not find this explanation satisfactory. The applicant had expressly stated at the hearing that the longest period of time he had remained in hiding was for a period of one month. He did not claim that he was in hiding for a further two months in the village or anywhere else. The applicant’s evidence casts doubt on the credibility of his evidence and his reliability as a witness.
Secondly, the applicant provided inconsistent evidence in relation to his work history in Lebanon. In his Form 80, the applicant had stated that from June 2005 to December 2013 he had worked as [an occupation] at [a business]. At the interview he claimed for the first time that the [business] or the [shop] he worked in belonged to his father. The business burned down three years earlier and sometime later his father opened a [food] shop. The applicant then started working in the [food] shop in order to support himself. At the hearing the applicant provided similar evidence and initially stated that he had worked in the [food] shop until he came to Australia. However, he later stated that he could not stay and work in the shop because of his circumstances, when it was put to him that he had claimed to have worked in the [food] shop until his departure from Lebanon, he said he had worked in the [food] shop only until November 2013 but not continuously because of his situation. The changes in the applicant’s evidence throughout the process, including the new claims raised at the interview, regarding his work history were put to him at the hearing under s.424AA. The applicant stated that he did not wish to comment. The Tribunal is unable to reconcile the applicant’s various accounts in relation to his employment and considers his evidence to undermine the credibility of his claims.
Thirdly, at the departmental interview the applicant claimed that he had been convicted of [a crime] and had served a 9 month prison sentence before coming to Australia. He was specifically asked by the delegate if he had any other convictions or had served any other prison terms. He responded in the negative. At the hearing, however, the applicant stated that he had served two prison terms. He was sentenced to three months imprisonment in 2010 and in 2012 he was again convicted of [a crime] and served a prison term of 9 months. When his evidence to the delegate was put to him at the hearing under s.424AA, he stated that at the interview he had been asked how many times he was convicted and that if one goes to jail it does not necessarily mean that he has been convicted. He told the delegate that he was convicted only once and that only one verdict had been issued. The Tribunal finds this explanation unconvincing. The applicant evidence at the hearing clearly indicated that he had served two separate prison terms for two separate offences. The fact that he had denied having served a second prison sentence at the interview casts doubt on the credibility of his evidence and reliability as a witness.
As it was put to the applicant under s424AA, the department had received allegations from an anonymous source that he had been convicted and sentenced to imprisonment in Lebanon on three separate occasions. The applicant stated that he has served two prison sentences and only one ‘verdict’ had been issued. In view of the fact that the allegation is from an anonymous source, the Tribunal does not consider the allegation to be reliable. In considering the applicant's claims the Tribunal has not placed any weight on the allegation made against the applicant.
Fourthly, at the departmental interview the applicant was asked which Sunni group had tried to recruit him. Initially he stated that he did not know their name. After being pressed, however, he said the Abu Ziyad group had tried to recruit him. At the hearing, however, he claimed that the Abu Ali group had tried to recruit him. He claimed that he was first approached by two friends who were both members of this group. The information the applicant had provided at the interview was put to him under s.424AA at the hearing. He responded that he had been too scared to mention names at the beginning, but he does not care now. The Tribunal finds the applicant’s explanation unsatisfactory. The applicant had referred to ‘names’ both at the interview and at the hearing, albeit different names. The applicant’s evidence casts serious doubts on his claims that he was approached or pressured by any group or individual in Tripoli to join the Sunni/Alawi conflict.
Fifthly, the applicant introduced a number of significant new claims at the departmental interview and the hearing. The applicant claimed for the first time at the interview that his father’s [food] shop was attacked by Sunni militants and that he was stabbed as he tried to defend the premises. He also claimed that those involved in these attacks were the same people who had tried to pressure or force him to join the fight against Alawis. These claims were not mentioned, even tentatively, in his application for a protection visa. When this was put to him under s.424AA at the hearing, he said he did not know how this had happened. The applicant was assisted by a registered and experienced migration agent in preparing his application for a protection visa. The Tribunal does not accept that if the applicant had been stabbed or a property belonging to a member of his family had been attacked and damaged, these claims would not have been mentioned in his application for a protection visa.
Sixthly, according to the department’s movement records, the applicant’s visitor visa was issued [in] November 2013. However, he did not leave Lebanon until, according to his evidence at the hearing, [December] 2013. The applicant initially claimed at the hearing that he had had approached a travel agent as soon as he had received his visa and was able to travel to Australia a few days later. When it was put to him that his visa was issued [in] November 2013, he said he did not wish to comment. In the Tribunal's view, the applicant’s departure from Lebanon some [weeks] after he was issued with a visa casts doubt on the genuineness of his claimed fear of harm and the credibility of his claims.
Finally, the applicant arrived in Australia [in] December 2013, but he did not apply for a protection until [April] 2014. When asked at the hearing why he had delayed applying for a protection visa, he said after he arrived in Australia his father approached a lawyer who prepared his application for a protection visa. The applicant did not provide a persuasive explanation for the three month delay in lodging his application for a protection visa. This delay also casts doubt on the genuineness of his claimed fear of harm and the credibility of his claims.
For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to manufacture, shift and tailor evidence in a manner which achieves his own purpose. The Tribunal, therefore, does not accept that the applicant was ever approached, pressured or forced to join armed Sunni Salafi militant groups fighting the Alawis in Tripoli. The Tribunal does not accept that he was targeted, threatened, assaulted, stabbed, verbally abused or pursued by any individual or group in Tripoli. The Tribunal does not accept that the applicant has refused any claimed invitation by or has resisted any claimed pressure from any group or individual to join the fight against Alawis in Tripoli. The Tribunal does not accept that the applicant has insulted, offended or antagonised any extremist or militant group or individual in Tripoli. The Tribunal does not accept that is of any interest to any group or individual in Lebanon.
In his application for a protection visa the applicant stated that as a young man he used to go out and have a few drinks, but after the militant Muslims became a dominant power in the city, he was subjected to threats and told to stop his ‘bad behaviour’ otherwise he would be ‘tortured’. The applicant, however, did not meaningfully pursue this claim at any other point during the process. Neither at the interview nor at the hearing he claimed to fear harm for the reason of his lifestyle or perceived ‘bad behaviour’, including outings and drinking alcohol. At the hearing the applicant claimed that his bad behaviour was one of the reasons behind his friends approaching him to join the fight in Tripoli. He explained that he was perceived to be a ‘trouble maker’ and they wanted a trouble maker to join their ranks. The Tribunal has already comprehensively rejected the applicant's claims that he was approached, invited or pressured to join a militia or any extremist or militant group. The Tribunal is not satisfied that that the applicant was threatened with serious harm or was harmed by any group or individual for going out or having a few drinks. The Tribunal is not satisfied that if the applicant were to return to Lebanon there is real chance that he will be seriously harmed for the reason of his real or perceived lifestyle or ‘bad behaviour’.
The Tribunal does not accept that there is a real chance that the applicant will face serious harm in Lebanon for the reason of his religion, his real or perceived religious beliefs, his real or perceived political opinion, membership of any particular social group apparent on the face of the evidence or any other Convention reason.
In his application for a protection visa the applicant stated that his suburb is on the border of the area where Sunnis and Alawis are engaged in an armed conflict. At the hearing, however, he acknowledged that he lived much further away from the area of the conflict. In so far as the applicant’s evidence refers to the security situation in Lebanon, there is no evidence before the Tribunal to suggest that the tensions, lack of general security and any instability the applicant may be concerned about is faced by the applicant personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason.
The Tribunal is not satisfied, either individually or cumulatively, that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Lebanon now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal does not accept that there is a real risk that, if the applicant was removed from Australia to Lebanon, he will suffer significant harm by a militia, an extremist group or a Sunni militant group. The Tribunal does not accept that 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 arising from his religion, his real or perceived religious beliefs, his real or perceived political opinion, his real or perceived lifestyle or ‘bad behaviour’ or any other factor arising from his claimed circumstances. The Tribunal does 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined in the Act.

Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, lack of general security and the instability the applicant fears are faced by the population generally and not by him personally. The Tribunal finds that there is taken not to be a real risk that the applicant will suffer significant harm in Lebanon as a result of general lack of security and instability.
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Shahyar Roushan
Senior Member

[2015] AATA 3332

24 August 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice