1416717 (Refugee)

[2016] AATA 3653

1416717 (Refugee) [2016] AATA 3653 (4 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416717

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Chris Thwaites

DATE:4 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2016 at 1:48pm

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] November 2012 and the delegate refused to grant the visa [in] October 2014.

3. On 8 October 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s files relating to the applicant’s protection visa applications and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provided to the Tribunal by the applicant.

5. The applicant’s written claims for protection are contained in a written statement provided to the Department as an attachment to his visa application forms. The written statement states:

   I, [Applicant’s name] tell the story of my life.

   Since I was [age] years old I used to like playing with my sisters and like to play girl games. I used to dress like my sisters.

   My dad is very conservative, he used to hit me because of my behaviour as a gay, he used to hit me brutally.

   When I was at school my friends used to hit me and call me gay.

   All my school friends used to hit me and used to say that I am not a boy and I should be a girl.

   I had a very hard times in my life because I wasn't like all the boys in my area. I did not like the girls as they used to like them.

   I wish I was born a girl.

   There was only one person who could understand me, this person is [Mr A]. We were very close friends because he used to feel the same way as me and he is gay like me. This friendship became a relationship that last for 6 years, we used to spend all day together in the mountains in Lebanon where no one can see us and I used to love him and have a feeling that he is all my life.

   Some times I used to sleep in the mountain because my dad did not let me sleep in the house.

   My dad used to take my money and did not let me get in the house because he used to say that I bring shame to the family. Once my dad hit me with a knife and cut my [body part] following an argument in which he accused me of being gay.

   Some times I used to think of suicide and finish all this pain but the only person who kept me alive is [Mr A] because he used to help me through all these problems.

   None of my family members know that I can't love girls I used to feel that I should be born as a girl. I was not comfortable with my situation with the boys.

   Especially, I am a Muslim and my family would kill me if they know that I am gay and I had a relationship with a Muslim gay too, the Authorities and the Muslim sharia will support them in this. I think being gay is something normal and I was born like that.

   I was happy because I left Lebanon and came to Australia where I can say that I am gay and have the right to say that I love boys and I can't love girls.

   I cannot go back to Lebanon because soon or later they are going to know that I am gay.

   I ask the Australian government to protect me because the Lebanese Authorities cannot protect me. There is so many people like me in Lebanon who cannot practice what they love to do.

   One more time I ask the Australian government to protect me and protect all the gays because being gay is one of my normal rights.

   I believe that the law in Australia protect the human rights and the justice.

   Thanks a lot for looking on my case because I was not able to say that I am gay all my life and now I can say it and practice it in Australia.

6. [In] October 2014 the delegate refused to grant the applicant a protection visa because the applicant had failed to attend an interview with the delegate, and on the limited information before the delegate, he was not prepared to accept the applicant claims to be a homosexual. Therefore the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant’s fear was well founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention and as a result the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the noncitizen being removed from Australia to a receiving country, there was a real risk the noncitizen will be subject to significant harm. As a result the delegate found the applicant did not meet the criteria for a grant of a protection visa under s.36(2)(aa).

7. On 8 October 2014 the applicant applied to the Tribunal for review of that decision.

8. The applicant appeared before the Tribunal in Melbourne on 11 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone from Sydney.

9. During the hearing the applicant initially told the Tribunal he feared returning to Lebanon because he had been in Australia a long time and has not spoken to his father for a long time. He told the Tribunal life is very different in Australia. If people knew about him in Lebanon he would be treated badly and made fun of.  He later told the Tribunal he does not know what would happen if he returned to Lebanon as he is not in contact with anyone in Lebanon, apart from saying hello to his mother, when his [sibling] calls her, approximately every month. He later told the Tribunal if he went back he fears his father will hit him as his father is harsh. He later told the Tribunal he fears his father will kill him if he returns to Lebanon and that he has doesn’t have anyone there and has no money and cannot get married because he can’t be with a girl. 

10. At the conclusion of the hearing the representative requested the Tribunal put its credibility concerns to the applicant in writing after the hearing and allow the applicant 14 days in which to respond. The Tribunal considered the request and noted the applicant had been given an opportunity to respond to the issues raised by the Tribunal in relation to his credibility, including the information put to him under s.424AA. The relevance of that information had been explained to the applicant as well as the consequences of that information being relied on. The applicant had been given an opportunity to ask for time in which to comment on or respond to the information during the hearing and had chosen to respond immediately. The Tribunal refused the representative’s request but granted the applicant 14 days’ time in which to provide any further information in support of the application.

11. On 23 February 2016 the representative submitted a statutory declaration declared by the applicant on 22 February 2016. The declaration addresses some of the concerns raised by the Tribunal during the hearing including concerns raised about differences between the applicant’s oral evidence and the information contained in the three different psychological reports submitted to the Department in support of the applicant’s first protection visa application, as well as an issue relating to the applicant’s father taking steps in [a] court to strip him of his inheritance, and an  issue raised about the applicant’s failure to mention the incident of his father striking him with a knife during his oral evidence. This statutory declaration is considered in more detail below. The representative also provided copies of media reports and articles on gay men being arrested in Lebanon, and a copy of the Lebanon section of the Human Rights Watch World Report 2016, and a copy of the Lebanon section of the Amnesty International Report 2014/15 The State of the World’s Human Rights, and a copy of an online article from Towleroad.com titled “Lebanese man describes how family kicked him out after discovering he is gay”.

    FINDINGS AND REASONS

    Nationality

12. On the basis of the applicant’s consistent information provided to the Department and the Tribunal about his place of birth and citizenship of Lebanon, as well as the copy of his Lebanese passport provided to the Department, the Tribunal finds that the applicant is a national of Lebanon.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Lebanon.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Lebanon, the Tribunal also finds that Lebanon is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    S.48A Bar

13. During the hearing the applicant confirmed he arrived in Australia [in] October 2008 and made his first protection visa application [in] February 2009 and that that application was refused [in] June 2009. The applicant confirmed the decision to refuse to grant him a protection visa was affirmed by the Refugee Review Tribunal on 13 November 2009 and his subsequent requests for Ministerial Intervention were unsuccessful. The applicant confirmed he made his second protection visa application [in] November 2012.

14. While the Tribunal acknowledged it had jurisdiction to review the decision in relation to the complementary protection criteria in s.36(2)(aa), it discussed with the applicant and his representative whether the Tribunal had jurisdiction to review the decision in relation to the Refugee Convention referred to in s.36(2)(a).

15. On the evidence before it the Tribunal finds that the applicant made his first protection visa application [in] February 2009 and that application was refused with reference to the Refugee Convention criteria [in] June 2009, prior to the commencement of the complementary protection provisions on 24 March 2012.

16. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

    Complementary Protection criterion s.36(2)(aa)

17. An applicant meets this criterion if he or she is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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’).

18. During the hearing the applicant told the Tribunal that his lawyer had helped him complete his visa application forms and had translated his written statement into English. He told the Tribunal the written statement was the same statement he had used in his first protection visa application. The applicant told the Tribunal he was aware of the contents of his statement and his visa application forms and had nothing to add or change, noting the information related to what happened to him in Lebanon, and that he had been in Australia for a number of years and that more had occurred over that time.

19. During the hearing the Tribunal discussed with the applicant his background in Lebanon, his family composition, education and work history, as well as his relationship history and the reasons he fears returning to Lebanon. The applicant told the Tribunal he had been in Australia a long time and had not spoken to his father. He told the Tribunal his father knows his story and he has not spoken to his father for a long time and life is different in Australia, and that if people knew about his situation in Lebanon he would be badly treated and made fun of.

20. On questioning, the applicant told the Tribunal about the harsh treatment he had received from his father due to his behaviour as he was growing up, playing with makeup and girls clothes, and that his father would hit him and screamed at him and treated him differently from his siblings. The applicant told the Tribunal about the relationship he had with [Mr A], a friend from school who lived near him in his village, as well as a relationship he had while he was working in Beirut with a man named [Mr B].  The applicant told the Tribunal no one knew about these relationships and that his father stopped hitting him when he got a job, but his father did not love him and continued to treat him differently from his other siblings. He told the Tribunal his mother used to see his father treat him this way but there was nothing she could do, and that he did not have any problem with others in his village and his brothers and sisters were too young to know. The applicant told the Tribunal his [sibling] applied for his holiday visa to Australia and once he arrived in Australia he found out the government looks after people in his situation so he applied to stay.

21. The applicant told the Tribunal that he has lived in a bungalow in his [sibling’s] back yard since he arrived in Australia, although later in the hearing he also told the Tribunal he used to spend time at his friend’s [Mr C’s] house over the weekends. He told the Tribunal he has not seen [Mr C] for a few years. The applicant told the Tribunal he had his first relationship with a man in Australia in 2011. The man was a [ethnic background] guy name [name] who he met at a pool and the relationship lasted for about one year. The applicant told the Tribunal that he learned English over time and started meeting other men. He had another relationship with a man named [name] who he met at a club [at a named location]. The applicant told the Tribunal he now uses the application (app) [App name] on his telephone to meet men for sex. The applicant showed the Tribunal the app on his phone. The Tribunal noted the app was for men and women and that the applicant’s profile contained photos only and had no information and nothing to indicate his sexual preference, and the list of people who had recently viewed his profile contained both men and women The applicant told the Tribunal that he did not state his sexual preference on the app as people in his community might see it.  He told the Tribunal he has not told his [sibling] in Australia that he was gay, and his [sibling] keeps pressuring him to get married. The applicant told the Tribunal that no one in his family in Australia knows he is gay. He told the Tribunal that although his father can feel it, no one in Lebanon knows he is gay. The applicant told the Tribunal he has many friends in Australia and his friend [name], who he sees every day, knows he is gay, and his friend [Mr C], who he has not seen in some years, also knows. He told the Tribunal he has not made any contact with the gay community in Melbourne and does everything through the app. 

22. On questioning, the applicant told the Tribunal that homosexuals are not liked in Lebanon and that they are judged and made fun of, and that there is more freedom in Australia where you can do what you want. He later told the Tribunal that he has been living in Australia for a while now and doesn’t know what would happen if he returned to Lebanon. He told the Tribunal that he did not have contact with anyone in Lebanon and hadn’t spoken to his father, who is quite aggressive, and in Lebanon there is no freedom like in Australia for gay people. He told the Tribunal he speaks to his mother to say hello on average about once a month when his [sibling] calls her.

23. He later told the Tribunal if he goes back to Lebanon he thinks he father will hit him, he hasn’t spoken to him for a long time. He told the Tribunal the situation is quite bad in Lebanon, and he does not have friends and his father is quite harsh, and that in Australia he is happy and has forgot about Lebanon, and wants to continue to live the same way he is living now.

24. During the hearing the applicant told the Tribunal that he had applied for a new passport and was told that he can’t get a passport because he needs to go to prison in Lebanon. On questioning why the applicant needed to go to prison in Lebanon, the applicant told the Tribunal that before he came to Australia there was trouble with other boys, and that since he was in Australia he does not know what happened. On further questioning the applicant told the Tribunal that the trouble with other boys was that his cousin created some trouble, fighting with other boys, and the applicant was there, and that they want him as a witness. The applicant told the Tribunal that he applied for his passport and waited three months and that the Lebanese consulate telephoned him and told him they can’t give him a passport and that he has to go back to Lebanon first and then apply in Lebanon.

25. During the hearing the Tribunal raised a number of concerns about differences between the applicant’s oral evidence and the information in his visa application form and his written statement, as well as information he had previously provided to the Department.  The applicant told the Tribunal that he can’t tell the Tribunal exactly the same as what was in his application as it has been years. While the Tribunal accepts that the ability of a person to recall details can be affected by the passage of time and the stress of giving evidence, and the Tribunal accepts the applicant had a limited education, the Tribunal doesn’t accept those circumstances resolve or explain the differences discussed with the applicant. On questioning, the applicant told the Tribunal he does not have a memory problem and does not have a medical condition or take mediations that affect his capacity to recall things. The Tribunal does not accept the applicant has a bad memory or that that explains the differences and omissions discussed below.  The Tribunal has considered the psychologists reports the applicant had submitted to the Department in support of his first protection visa application but gives their conclusions little weight as the Tribunal is not satisfied the applicant has told the truth about being a homosexual and being in homosexual relationships and having suffered harm because of that.  The reasons for this are discussed in more detail below.

26. During the hearing the applicant told the Tribunal he had worked as [an occupation for] [a named company] in Beirut for about two years, and that he’d stopped working there not long before he came to Australia. The Tribunal raised its concerns that the applicant’s oral evidence was different to the information provided in his visa application form, which indicated the applicant was employed as [that occupation] at the [named company] between June 2004 and October 2008. In response the applicant told the Tribunal that he had worked [for the company] for two years and then worked in a [different business] for about 10 months. The Tribunal noted this information does not explain the difference between his oral evidence and the information provided in his visa application form which indicated he work in the [named company] for over four years. In response the applicant told the Tribunal he can’t remember exactly as it has been eight years, and that he’d been in Australia for long enough he forgot what happened. On questioning if the applicant had any problems with his memory, the applicant told the Tribunal no, when he first came to Australia he was different, he was [age] and now he is [age]. He told the Tribunal he does not have any problems with his memory. On further questioning if the applicant had any medical conditions or took any medication that might affect his ability to remember things, the applicant told the Tribunal he was not, that he had been to the doctor twice, a psychologist a while ago and had not seen him since. The Tribunal is not persuaded the passage of time and of having lived in Australia since 2008 explains the difference between the applicant’s oral evidence and his visa application form. While in isolation the Tribunal would not draw an adverse credibility conclusion from this difference alone, in light of the other credibility concerns discussed below, the Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.

1. During the hearing the Tribunal raised its concerns that the applicant had failed to mention in his oral evidence that his father used to take money from him, and that once his father hit him with a knife and cut his [body part]. In response the applicant told the Tribunal he did not talk about this because he forgot about it. He indicated his scar on his [body] and that every time he returned from his job in Beirut his father use to hit him and take his money because he wanted money for allowing him to stay in the family home. On questioning about when the knife incident occurred the applicant told the Tribunal he can’t remember exactly when but thought it happened when he was [age], a little while after he left school, and that no one can know how his father is until they witness how he behaves. The Tribunal does not accept the applicant has a bad memory or that the passage of time and the stress of giving evidence explains the applicant’s failure to mention his father taking money from him or cutting him with a knife in his initial oral evidence.

2. The Tribunal has taken into consideration the applicant’s post hearing statutory declaration where he declares that the incident with his father striking him with a knife did take place, however he failed to recount this issue during the recent Tribunal proceedings. He declares that this is not because the incident did not occur but similar to the inheritance issue, this is one of many aspects which underpin his fears and one that he simply forgot to recall due to his nervous and apprehensive state.

3. While the Tribunal accepts that giving evidence at a hearing can make people nervous and apprehensive, and can affect their ability to recall detail, the Tribunal considers having money taken from him and being cut by a knife by a parent are significant incidents. The Tribunal would expect a person in the applicant’s circumstances to have recalled such incidents. The Tribunal considers the applicant’s failure to mention that his father took money from him and hit him with a knife and cut his [body part] reflects poorly on the applicant’s credibility and the reliability of his evidence and the claim that he had money taken from him and was hit and cut with knife by his father. While the Tribunal accepts the applicant has a scar on his [body] which he referred to during the hearing, the Tribunal is not satisfied the applicant has told the truth in relation to where he obtained that scar.

4. In accordance with s.424AA the Tribunal put information to the applicant during the hearing from a Psychological Report dated [in] January 2009 written by [Mr D] provided to the Department by the applicant’s representative in support of his first protection visa application. The information was that the applicant reported to [Mr D] that he has engaged in one homosexual relationship for approximately 6 years and that his partner’s name at the time was [Mr A], who was aged [age]. The Tribunal noted the information was different to the applicant’s oral evidence which was that he had a relationship with two people in Lebanon, [Mr A] and [Mr B], and outlined the consequences of the information being relied on. The applicant was given an opportunity to ask for time in which to comment on or respond to the information and chose to respond immediately and told the Tribunal he told the psychologist that he was with [Mr A] for six years. The applicant told the Tribunal that he got to know [Mr B] the last two years before he came to Australia, and he did not tell the psychologist about [Mr B] because it was the first time he spoke to someone in Australia about his story. He did not know him and that was the first time he had seen him and he did not tell him what happened to him and the whole story. On further questioning about why he did not tell the psychologist the whole story the applicant told the Tribunal he did not feel comfortable telling him the whole story about when he was young and he forgot something.  On further questioning the applicant clarified that he did not feel comfortable and that he did forget some things. He then told the Tribunal the psychologist was all right with him but he did not know him like a friend, and only met him for one hour, or half an hour and couldn’t say everything in half an hour.

5. The Tribunal has also considered the applicant’s post hearing statutory declaration dated 22 February 2016 which states that at the time he attended the consultation with [Mr D] he did not have the benefit of a professional interpreter. The applicant declares that the translation was being undertaken by [Mr C] who may not have translated the questions and his responses accurately. As a result there may have been some inaccuracies in the translations. The applicant also declares that during the consultation he was extremely uncomfortable and nervous about discussing what he regards as an extremely private aspect of his life including his relationship with other men. He declares due to his anxiety and nervous state, he may have simply forgotten to discuss his relationship with [Mr B]. At that time he was only [age] years of age and discussing private matters of a sexual nature with a stranger was completely new and not comfortable for him.

6. The Tribunal is not persuaded by the applicant’s response during the hearing or in his post hearing statutory declaration. The Tribunal notes the [Mr D’s] report indicates the applicant told [Mr D] about his relationship with [Mr A] and that he likes cross dress, to wear women’s apparel, high heels and tight lycra long pants in his own privacy, and finds wearing these types of clothes sexually arousing, and also suggested he felt more like a woman inside than a man. The Tribunal does not accept the applicant felt too uncomfortable to mention another same sex relationship or that he forgot about that relationship at that time. While the Tribunal accepts inaccuracies and miscommunication can occur when using an interpreter, especially a non-professional interpreter, given the detail recorded in the report, there is no indication that the applicant was unable to understand the nature of the questions being asked, or respond to those questions in detail. There is no indication in the report that the applicant was not given every opportunity to discuss his sexual orientation and previous relationships and the Tribunal does not accept the applicant’s omission occurred due to limited time with [Mr D] or inaccuracies in the translation or interpreting. The Tribunal finds the applicant failed to mention a relationship with a man named [Mr B] to [Mr D]. The Tribunal considers the applicant’s failure to mention a relationship with [Mr B] reflects poorly on his credibility and the reliability of his evidence that he was in a relationship with a man by the name of [Mr B] in Lebanon.

7. In accordance with s.424AA the Tribunal put information to the applicant during the hearing from a Psychological Report written by [Mr E] dated [in] March 2009 and provided to the Department by the representative in support of the applicant’s first protection visa application. The information was that the applicant reported to [Mr E] about the development of a relationship in Beirut, which was kept secret, with a male his own age. The Tribunal noted the report makes no mention of [Mr A] or a relationship in the applicant’s home village. The Tribunal noted the information was different to the applicant’s oral evidence, and outlined the consequences of the information being relied on. The applicant was given an opportunity to ask for time in which to comment on or respond to the information and chose to respond immediately and told the Tribunal he spoke to the second doctor about [Mr B]. When asked why the applicant did not speak about [Mr A] the applicant told the Tribunal that he knew both reports would go to the Department and that in the first one he didn’t mention [Mr B] and in the second one he did mention [Mr B] and both reports were received by the Department. The Tribunal noted the reports came from different psychologist and were not submitted as instalments, and that they were different psychologist making assessments. The applicant acknowledged he understood this and told the Tribunal he spoke to the second doctor about [Mr A] and did not have the time to speak about everyone he saw, and that everything he said was the truth and in his first statement he mentioned both men and with the doctors he mentioned one in every interview.

8. During the hearing the Tribunal raised its concerns that while the applicant’s written statement referred to his relationship with [Mr A], it made no mention of his relationship with [Mr B], which the applicant spoke about in his oral evidence. In response the applicant told the Tribunal he said there was somebody but he didn’t put their name.

9. The Tribunal has also considered the applicant’s post hearing statutory declaration dated 22 February 2016 which states that during his consultation with [Mr E] he did not have the benefit of a professional interpreter. The applicant declares the person assisting him with interpretation was [Mr C], who may not have accurately translated what was being asked of the applicant or his precise responses. The applicant also declares that during his consultation he was also most anxious and embarrassed to discuss with total strangers very private aspects of his life. Due to his inhibitions he may have unintentionally omitted to mention his relationship with [Mr A]. He asks the Tribunal to please note his age at the time and the fact that he came from an extremely conservative Muslim society where discussions about a person’s private sexual life is uncommon. He declares that now he is far more comfortable having lived in an open and tolerant society for so many years.

10. The Tribunal notes the applicant’s post hearing statutory declaration response to the issues raised about the difference between the applicant’s oral evidence and the information in [Mr E’s] report is different to his response during the hearing, that he knew both reports would go to the Department and that in the first one he didn’t mention [Mr B] and in the second one he did mention [Mr B] and both reports were received by the Department, and that he did not have time to speak about everyone he saw. The Tribunal notes the [Mr E’s] report indicates the applicant appeared apprehensive and somewhat despondent, if not moderately depressed, and was cooperative throughout the interview and testing procedures and tried to give his best to them. The Tribunal notes the report indicates the applicant told [Mr E] details of his family composition, including details of his childhood and growing up in Lebanon and about his parents and siblings in Lebanon and his [sibling’s] occupation and family and migration status in Australia, as well as his experiences with his family and the local community in Lebanon, and about his schooling and employment and health, and about his gay disposition and relationship with a man in Beirut.

11. While the Tribunal accepts the applicant was [age] years old at the time, and came from a conservative Muslim society where discussions about a person’s private sexual life is uncommon, the Tribunal does not accept the applicant felt too anxious and embarrassed to mention another same sex relationship or that he forgot about that relationship at that time. While the Tribunal accepts inaccuracies and miscommunication can occur when using an interpreter, especially a non-professional interpreter, given the detail recorded in the report, there is no indication the applicant was unable to understand the nature of the questions being asked, or respond to those questions in detail. There is no indication in the report that the applicant was not given every opportunity to discuss his sexual orientation and previous relationships and the Tribunal does not accept the applicant’s omission occurred due to limited time with [Mr E] or inaccuracies in the translation or interpretation. The Tribunal finds the applicant failed to mention a six year relationship with a man named [Mr A] or a relationship with a person in his home village to [Mr E].

12. The Tribunal does not accept the applicant chose to speak to one psychologist about one relationship and another psychologist about another relationship because both reports were being sent to the Department. On the evidence before it the Tribunal does not accept the applicant did not have time to speak to his psychologists about all the same sex relationships he had had to that point in time. The Tribunal considers the applicant’s failure to mention this relationship with [Mr A] to [Mr E] reflects poorly on his credibility and the reliability of his evidence that he was in such a relationship.

13. In accordance with s.424AA the Tribunal put information to the applicant during the hearing from a Psychological Report written by Mr [Mr F] dated [in] April 2009 and provided to the Department by his representative in support of the applicant’s first protection visa application. The information was that the applicant reported to [Mr F] that he was not living with his [sibling] and was living with [Mr C] who knows his situation but is not a homosexual. The Tribunal noted the information was different to the applicant’s oral evidence that he has lived in a bungalow at his [sibling’s] home since arriving in Australia, and outlined the consequences of the information being relied on. The applicant was given an opportunity to ask for time in which to comment on or respond to the information and chose to respond immediately and told the Tribunal he used to see [Mr C] every day and spent time at his home on the weekends. The Tribunal noted the psychologist report stated the applicant told [Mr F] that he was not living with his [sibling] and that he was living with [Mr C]. In response the applicant told the Tribunal that he did tell [Mr F] he was with [Mr C]. He told the Tribunal he was living with [Mr C] on Fridays and Saturdays.

14. The Tribunal has also considered the applicants post hearing statutory declaration which declares the applicant remembers informing [Mr F] that he was staying with [Mr C] on the weekends, whilst his personal belongings were kept at his [sibling’s] house. The applicant declares he is not sure whether [Mr F] may have simply misunderstood his answer to that question or alternatively, the applicant may have misunderstood the question. The applicant declares that [Mr C] was assisting him with the interpretation during this consultation.

15. While the Tribunal accepts inaccuracies and miscommunication can occur when using an interpreter, especially a non-professional interpreter, given the detail recorded in the report, there is no indication the applicant was unable to understand the nature of the questions being asked, or respond to those questions in detail. The Tribunal notes [Mr F’s] report indicates the applicant spoke to [Mr F] about his childhood and family composition and experiences in Lebanon in detail. That information corresponds with much of the information the applicant has provided elsewhere, and there is no indication from that report that the applicant was unable to understand the nature of the questions being asked, or respond to those questions in detail. The Tribunal does not accept a misunderstanding or miscommunication occurred during that interview. The Tribunal finds information the applicant provided to [Mr F] about his living arrangements was different to his oral evidence provided in hearing. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

16. In accordance with s.424AA the Tribunal put information to the applicant during the hearing from his representative’s written submission requesting Ministerial Intervention under s.48 dated [in] October 2011. The information was that the submission to the Minister states the applicant’s parents in Lebanon have been advised by relatives who reside in Australia that their son is maintaining an overt gay lifestyle in Australia, and that the family’s reaction was dialectic, and that they have taken steps to bring the matter before [a court] for the purpose of depriving the applicant of his rightful inheritance. The submission attached a copy of a decree obtained from the [court] for the Minister’s consideration. The submission states the applicant has been warned by his family that they aim to cause him severe physical harm should he return to Lebanon.

17. The submission also stated the representatives were further instructed that the applicant had approached the Lebanese Consulate in [Australia] for the purposes of obtaining a renewal of his passport, and that the consulate staff had requested him to volunteer information pertaining to his application for a protection visa as a condition of renewing his passport, and that the applicant made certain admissions to consulate staff which has put him to the adverse attention of the Lebanese authorities and that his application for renewal of his passport has been refused.

18. The Tribunal noted the information was different to the applicant’s oral evidence and outlined the consequences of the information being relied on. The applicant was given an opportunity to ask for time in which to comment on or respond to the information and chose to respond immediately and told the Tribunal the certificate is something that his father sent. That his father did this so he does not get any rights from him because his father does not want him to be happy wherever he is, and that his father does not want to see the applicant.

19. The Tribunal noted the information in the submission was that the applicant’s family was told by people in Australia that the applicant was living an overt gay lifestyle in Australia, and that they had taken the matter to [a court], and that they have warned the applicant that they will cause him severe physical harm should he returned to Lebanon. The Tribunal noted the information was very different from what the applicant had told the Tribunal in the hearing. In response the applicant told the Tribunal that it had not asked the applicant in particular about this and that he had forgotten this. He told the Tribunal his father knows lots of people in Australia and has a cousin. The applicant stated his father knows how he is living and does not want to leave him in peace.

20. The Tribunal also noted the information in the submission about the applicant’s request to renew his passport and that he had made admissions to the consulate staff that put him in adverse attention to the Lebanese authorities. In response the applicant told the Tribunal he had filled out a form and it was sent to Lebanon, and they have to get the okay from his father, his father has to say yes before he can get the passport, and the consulate told the applicant it had been refused and he needed to go to Lebanon to get a passport.

21. The Tribunal does not accept the applicant’s responses explains the difference between his initial oral evidence and the information contained in the submission for Ministerial Intervention under s.48 as noted above. The Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.

22. In accordance with s.424AA the Tribunal put information to the applicant during the hearing from the certificate which accompanied the representative’s submission for Ministerial Intervention noted above. The Tribunal noted the certificate was headed “To Who It May Concern” and states the writers were the Mayors of [a town] and gave their names and official stamps and stated they certify the applicant is known to them personally and travelled to Australia as a tourist and did not return because of a disagreement and dispute with his father and relatives over homosexuality, which is against Shia. It states homosexuality is illegal and they heard many times from the applicant’s father and relatives that should the applicant return to Lebanon they would kill him, and that his father had deprived him irrevocably from inheritance and has severed all relations whatsoever with his son, and that in order to safeguard the applicant from his father and relatives, they beg the competent authorities to consider the humanistic situation. Furthermore they state there is an arrest warrant against the applicant issued by the Lebanese authorities. Taking the legal and humanistic situation into consideration they give him this certificate in order to guarantee his personal safety.

1. The Tribunal noted the information was different to the applicant’s oral evidence about what his family knows and what people know in Lebanon, and outlined the consequences of the information being relied on, and raised its concerns about the genuineness of the document. The applicant was given an opportunity to ask for time in which to comment on or respond to the information and chose to respond immediately and told the Tribunal he had said that nobody from his family knows about him. That the people who wrote the certificate are all Mayors, and mature men, and his father would have spoken to them. The young people don’t know. When he said that nobody knows from his relatives, he was referring to people of his own age. After he came to Australia he does not know who knows about his story in Lebanon as he is not in contact with anyone in Lebanon. He only speaks to his mother when his [sibling] is speaking to her and doesn’t speak to her about any such subjects. He told the Tribunal all this is happening and he does not have any knowledge of it and it is coming from his father.

2. The Tribunal has taken into consideration the applicant’s post hearing statutory declaration where he declares that his father has taken steps in the [court] to strip him of his inheritance, and that this is a significant matter, however he does not care about his inheritance but is solely focused on his freedom and being able to live in a country which will respect and protect him. He declares that he does not intend on returning to Lebanon because he knows what awaits him there. He declares that if he is not permitted to remain in Australia he will look for a safe third country to travel to. The applicant declares that the issue of his father denying him his inheritance is significant, but he considers it is not so significant when he is solely focused on the preservation of his life. The applicant declares that while he can understand the Tribunal’s concerns, the Tribunal must equally understand that he remains extremely apprehensive about his future and has simply failed to recall during his oral evidence one of many aspects which underpins his fears.

3. The Tribunal does not accept the applicant’s initial oral evidence made a distinction between the age of people and his relatives and their knowledge of his sexual orientation. The Tribunal does not accept when the applicant said nobody knows from his relatives, he was referring to people of his own age. The Tribunal finds the difference between the applicant’s oral evidence and the information contained in this certificate, as noted above, reflects poorly on the applicant’s credibility and the reliability of his evidence and the genuineness of the document provided to the Minister.

4. At the end of the hearing the applicant told the Tribunal that it can see what his father has written and said about him and that he fears if he returned to Lebanon his father will kill him. He can’t get married if he goes to Lebanon, he doesn’t know anyone and doesn’t have any money and his father will not give him any rights and the law is different there than in Australia. If he is gay in Lebanon he can’t go anywhere, according to the law being gay is not allowed and he can’t get married and doesn’t have money and doesn’t know where he would live if he goes there. He told the Tribunal that he has told the truth and has been in Australia for seven years and not got married, and he can’t get married because he can’t be with girls.

5. Due to the credibility concerns discussed above, the Tribunal finds the applicant is not a witness of truth and it is not satisfied he has told the truth about being a homosexual or about being in homosexual relationships and continuing to have sex with men. 

6. While the Tribunal has taken the psychologists reports into consideration and notes that [Mr D’s] report indicates the applicant spoke about a relationship with [Mr A] and cross dressing, and that [Mr E’s] report indicates the applicant spoke about a relationship with a man in Beirut, and that [Mr F’s] report indicates the applicant reported that he had had had sexual intercourse with males, the Tribunal is not satisfied the applicant has told the truth about being a homosexual or about being in homosexual relationships or about having sex with men. Therefore the Tribunal gives these reports little weight insofar as they support the applicant’s claims of being a homosexual, or their conclusions based on his claims to be a homosexual.

7. On the evidence before it the Tribunal does not accept the applicant is a homosexual or that he has sex with men and fears harm from his family and relatives or anyone else because of that. The Tribunal does not accept the applicant’s father used to hit him brutally because of his behaviour or that his father called him gay. The Tribunal does not accept the applicant had hard times in his life because of his sexual orientation, or that he liked to dress as his sisters and that he cross-dressed and wore women’s apparel, or that that he wished he was born a girl. The Tribunal does not accept the applicant was in a same sex relationship with [Mr A] or a same sex relationship [Mr B]. The Tribunal does not accept the applicant was in a same sex relationship or had sex with men while he was in Lebanon. The Tribunal does not accept the applicant’s father took his money and did not let him into the house, or that his father hit him with a knife and cut his [body part] following an argument in which he was accused of being gay. The Tribunal does not accept the applicant has thought of suicide because of his sexual orientation or that he cannot love girls or feels he should have been born a girl. While the Tribunal accepts the applicant has a profile on the [App name] on his telephone, on the evidence before it, the Tribunal does not accept that the applicant uses that application in order to meet men and have sex, or that he would be imputed as a homosexual because he has a [App name] profile.

8. On the evidence before it the Tribunal does not accept the applicant has had same sex relationships in Australia, or that he has had sex with men in Australia, or that he leads a gay lifestyle, or that he has told any of his friends that he is gay.

9. The Tribunal does not accept the applicant will have same sex relationships, or sex with men, or cross dress, in the future.

10. The Tribunal does not accept the applicant’s parents in Lebanon have been advised by relatives who reside in Australia that the applicant is maintaining an overt gay lifestyle, or that they brought the matter to [a court] to deprive him of his rightful inheritance. The Tribunal does not accept the certificate provided in support of the applicant’s Ministerial Intervention under section 48 is genuine and the Tribunal gives that document little weight. The Tribunal does not accept the applicant’s family or relatives or friends or anyone in Australia and in Lebanon believe or suspect or impute the applicant is a homosexual.

11. The Tribunal does not accept the applicant has lost his nationality or that he is unable to obtain a Lebanese passport. The Tribunal does not accept there is a warrant for the applicant’s arrest in Lebanon. The Tribunal does not accept the applicant has made any admissions which have led to the adverse attention of Lebanese authorities.

12. The Tribunal does not accept the applicant would not be able to marry or earn money in Lebanon or that he does not know anyone in Lebanon or that he is estranged from his family in Lebanon or is unable to seek shelter and assistance from them. Given the applicant’s employment history in Lebanon the Tribunal does not accept the applicant would be unable to find employment or that he would be unable to subsist on his return to Lebanon.

13. The Tribunal does not accept there is a real risk the applicant will be hit or abused or killed by his father, or suffer significant harm, or harm of any kind, from his family or relatives or friends or anyone in Australia or Lebanon for the reasons he has claimed. The Tribunal does not accept there is a real risk the applicant will suffer significant harm, or harm of any kind, if he is returned to Lebanon.

14. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment, if he is returned to Lebanon.

    CONCLUSION

15. 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, there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

16. 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

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

    Chris Thwaites
    Member  4 April 2016

    
    

    ATTACHMENT: RELEVANT LAW

18. 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.

    Complementary protection criterion

19. A person meets this criterion if the Tribunal is satisfied Australia has protection obligations to the applicant because the Tribunal 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’).

20. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

21. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

    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.