1419699 (Refugee)

[2016] AATA 4166

1419699 (Refugee) [2016] AATA 4166 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419699

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:11 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 11 July 2016 at 10:44am

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

3. The applicant appeared before the Tribunal on 27 June 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.

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 born Muslim and was baptised a Roman Orthodox Christian in June 2011.  Since he had come to Australia in August 2010 he had felt liberated and began to explore his sexuality.  He realised he was attracted to both women and men.  In Australia he had dated a girl for three months.

6. Two years ago he met [Mr A] a [Nationality 1] man. [Mr A] asked him out for coffee and then they met at [a] Club [at a location], after which they had a sexual encounter.  The applicant then began visiting various gay clubs in Sydney and he felt like he belonged.  In Lebanon he would be treated harshly by his father, who is a religious Muslim.  If he returned to Lebanon he feared being abused, kidnapped, interrogated and killed.

   RRT Hearing

7. The applicant was asked and agreed that he was aware of and agreed with everything that was in his protection visa application.  The applicant claimed that if he returned to Lebanon he could be killed because he had changed his religion to Christianity.  His father and his family would be the ones to harm him.  He also claimed that he was gay and he could be killed for this by people who are religious, or he could be jailed because there were no laws to protect gays in Lebanon. He further claimed that because he was in northern Lebanon he could be harmed by Islamic State or extremists because he had converted to Christianity.  He had no other claims.

8. He had converted to Christianity when he came to Australia in 2010. His mother was Christian and his father was Muslim.  His [Relative 1] in Australia used to speak to him about Christianity and he learnt the religion from books and attending church with his [Relative 1].  He still practised the faith by doing this.  Asked if he went to church every Sunday, he claimed he went once or twice a month, or sometimes during the week.  He averaged going once a week but said this hadn’t been continuous. 

9. Asked to be more specific about attendance since his conversion in 2010, he claimed that he used to attend every Sunday evening with his [Relative 1] for the first two years.  After that he decreased a bit.  Asked to be more specific he claimed he stopped going every Sunday and also lost his licence; again asked to be more specific about his attendance, he claimed that he went less than every Sunday.  He would go for special occasions, during festival seasons since 2012.  He then said he went about once a month since 2012 and also on special occasions; he also went just to pray.  He had been baptised in Australia in 2010

10. In Islam if a person converts then that person can be killed because he is an infidel/apostate/idol worshipper.  In Lebanon his mother knew he had converted but others were suspicious because someone from his village had asked if he had converted.  He claimed that he hadn’t but the person said the applicant’s [relative] had told people in the village that he had converted.

11. He claimed he had a strong faith and was asked why he hadn’t sworn his oath on the bible – he claimed that he could do this and swearing on the bible didn’t stop others from lying.  He claimed his father and others would kill him because they were extremists and others in the family had killed family members.

12. Asked why his father would marry a Christian woman like his mother if he was extremist, the applicant claimed his father hadn’t always been this strict and his family didn’t like his mother.  His father had not divorced his mother or sought a Muslim wife since he had been strict.  His father thought the Applicant had to be like him.  Asked why his father couldn’t just doisown him rather than kill him.  He claimed he didn’t know.

13. He was asked if there was any country information that fathers in Lebanon killed sons for converting as the Tribunal was unaware.  He claimed this was allowed in Islam.  It was put to him that he had made no claim regarding religious conversion in his protection visa application.  He claimed that he had told his solicitor everything.  It was put to him that he had been asked and agreed that everything in his application was known and correct.  He claimed it was correct.

14. Asked how IS would know he had converted, he claimed that they would know because he would speak in support of Christians.  It was put to him that the Tribunal was unaware of IS killing Christians in northern Lebanon and was asked if he had any information to support the claim and he claimed he had some information from his mother.  He showed the Tribunal a document relating to his mother’s visa application that said [Orthodox] may be affected by the violence – it was put to him that it also said that the applicant (his mother) may not be affected by the violence. 

15. It was put to him that the Tribunal had to look at the totality of evidence as it applied to him, and he had claimed that he would be targeted by IS which there didn’t appear to be any information to support.  He claimed IS may enter Lebanon tomorrow as they had in Syria.  Asked if he had previously mentioned a fear of being targeted by IS, he claimed that he had referred to terrorist groups.

16. Country information was put to him that Lebanon generally had a tolerant approach to conversion and it was legal and recognised.  He claimed it was legal but that Muslims believed fathers killing their sons was about honour and the government would turn a blind eye.  Lebanon was a chaotic country.  Asked why he didn’t move to Zahle or Beirut to get away from his father.  He claimed his father would attract investigating what happened.  He was asked why not move to a Christian town or area – he claimed he couldn’t as he would always be fearful and it may not be his father but another extremist.  Asked how anyone would know he was a convert, he claimed he wanted to practise his religion.

17. It was put to him that he could do this by living in a Christian area.  He claimed his father could send someone to follow him.  He was asked how his father would veen know he had returned to Lebanon if he landed in Beirut; he claimed his family in Australia would tell his father as not everyone knew he had converted.  He was asked how they wouldn’t know given he had been to church regularly and all the festivals and weddings/christenings and the like.  He claimed only his close [relative] knew he had converted.  He celebrated Easter with his Orthodox and Catholic [relatives].  Asked about Easter events and what occurred on Holy Thursday, he claimed that it was the Last Supper and Jesus was crucified on Friday and rose on the third day, Easter Sunday.

18. Regarding his homosexuality he claimed that in Lebanon he used to check out boys but when he got to Australia he went out and met a young man.  He didn’t have a strong memory about the month and the year it occurred and it was put to him that it was reasonable to believe that he would have a good recall of his first homosexual experience.  He then claimed that this occurred between 2012 and 2013 and had asked his lawyer to include this claim but his lawyer said that they couldn’t as they shouldn’t have too many claims.  He had changed solicitors since then who said he would apply to the Minister based on this bisexuality claim.  Asked if he had complained about his previous solicitor he claimed he couldn’t prove it as it was verbal, and he didn’t want to spend time in courts.  

19. He claimed that in his submission he had slept with [Mr A] only but when asked about other relationships in his DIBP interview he had claimed to have other relationships but hadn’t mentioned it before to his solicitor because he had felt uncomfortable talking about these personal issues.  He claimed he felt inside that he was homosexual.. Asked if he could offer any evidence that he led a gay lifestyle such as photos, texts, emails, support from a partner, interaction with LGBTI organisations.  He claimed he used to go to clubs but didn’t like to attach himself to any clubs.

20. Asked if he had any evidence to support his claim, he said he had spoken about [Mr A].  He was [Nationality 1] and was asked if he had any more information so that the Tribunal could check, he claimed that [Mr A] may not even be his real name.  He had nothing other than his oral claim regarding his claim that he had led a gay lifestyle.  He claimed he never sent photos electronically.  It was put to him that any information would be welcomed, given he had only made this gay claim late and the Tribunal was concerned that he had raised this only after his previous conversion claim had failed.   

21. He then reiterated his claim that his previous solicitor had refused to raise his claim regarding homosexuality.  He was asked why he couldn’t move elsewhere in Lebanon such as Beirut, and he claimed that Lebanon was a small country and he had a fear and everyone knew everyone else.  It was put to him that there were four million people in Lebanon and he claimed that if anyone wanted to get anyone in Lebanon they could. 

22. He then claimed the reporters from Channel 9 went to Lebanon and were kidnapped which showed there was o law.  It was put to him that they were arrested and charged, not kidnapped.  He claimed that the government assisted in their being kidnapping as the father was well connected.  Asked where he got his information from, he claimed he had seen and heard this.  He claimed he could be put into jail for between one and three years in Lebanon even if there were no law against homosexuality.

23. He was advised about s 424AA and it was put to him that he had advised the compliance section of DIBP that he couldn’t return to Lebanon because had no money sent to him and because of the security situation in Lebanon but had made no mention of his homosexuality or conversion as to why he couldn’t return which could raise questions as to whether he validly feared either of these.  He claimed that he wasn’t sure what he had said before.  Asked what he had claimed to the Minister, he claimed it was based on bisexuality.  He claimed there was some problems at the last interview because there was no interpreter present, and that he thought the interviewer got angry with him.

24. Under s 424AA it was put to him that the Ministerial intervention request didn’t include reference to homosexuality which would have occurred after his alleged homosexual experience, which raises questions as to the veracity of this claim.  He said he had told his solicitor and it was his fault if it wasn’t mentioned.  He also claimed he had been too embarrassed to talk about his homosexuality in his last interview and it was put to him that the statutory declaration he had submitted was sexually graphic and not indicative of someone who appeared to be embarrassed about the subject. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The applicant arrived in Australia for the third time on a [temporary] visa [in] August 2010.  He applied for a protection visa [in] November 2010, which was refused by DIBP, RRT, at the Federal Magistrate’s Court, and Federal Court.  Ministerial Intervention was sought but refused in March 2014.  He then applied again under SZGIZ provisions in May 2014.

26. The Tribunal has sighted the applicant’s passport and is satisfied that he is a citizen of Lebanon.  He is [an age] year-old single Lebanese male. He claimed that he feared being killed by his family and/or Islamic State for converting to Christianity, and that he could be killed by religious extremists or jailed for being homosexual.  He had no other claims.         

27. 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.

28. 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 find that he fabricated his claim in order to be granted a protection visa.

    Christian Conversion

29. The applicant claims to have converted from Islam to Christianity, including having been baptised in 2011.  I have some doubts as to the strength of this conversion for a several reasons; he didn’t swear an oath on the bible before giving his evidence, and hadn’t gone to church weekly since 2012.  Whilst he has not provided any evidence that he was previously Muslim, giving his knowledge of some aspects of Christianity and his mother’s religious identity I am willing to give him the benefit of the doubt and accept that the applicant now considers himself to be Christian.

30. Whilst I accept that the applicant has converted, I do not accept that there is a real chance that he will suffer persecution because of it.  Country information indicates that Lebanon adopts a tolerant attitude towards conversion between faiths, that it is legal and recognised in Lebanon and that DFAT is unaware of Lebanese authorities monitoring or harassing religious converts.[1]  

    [1] DFAT Country Information Report – Lebanon, 18 December 2015, p 13.

31. Nor do I accept that the applicant’s father or family would harm him because of it.  Despite claiming that his father was religiously fanatical Muslim, I note that he has remained married to a Christian woman for decades and raised a family with her.  Whilst the applicant claimed that his father hadn’t always been this strict, he has made no move to divorce the applicant’s mother or to marry a Muslim woman which it is reasonable to believe a fanatical Muslim would seek to do.

32. His father’s long-term marriage to his Christian wife would indicate a liberal family environment, and hence one in which conversion would be accepted.  The Tribunal is unaware of any country information that supports the claim made by the applicant that fathers kill family members for converting and the applicant also never provided any such information.

33. Neither is the Tribunal aware of any information that supports the claim that IS was targeting or would target Christian converts in Lebanon, nor did the applicant provide any.  Although he claimed that IS could enter Lebanon tomorrow (presumably leading to a pogrom against converts) as they did in Syria, there is no country information to indicate that this is likely to happen in the reasonably foreseeable future, if ever.  

34. I also note that the applicant could relocate within Lebanon if he were to return.  I do not accept that he could not as Lebanon is so small and ‘everyone knows everyone’.  It has a population of four million and country information indicates that Lebanese have freedom of movement and internal relocation offers a degree of anonymity and the opportunity to seek refuge from discrimination or violence.[2]   

    Homosexuality

    [2] Ibid, p 21.

35. I do not accept that the applicant is gay or bisexual.  To begin with, despite claiming that he was interested in males in Lebanon he made no claim regarding homosexuality until after his original protection visa application had been refused.  While I note that he claims his first sexual experience occurred after his original protection visa claim was submitted, he never included this claim in his Ministerial Intervention request and I do not accept that his failure to do so was based on a refusal of his original solicitor to submit the claim. 

36. He has made no complaint against the solicitor and, given the applicant had employed the services of a new solicitor who could have advised him of the way to lodge a complaint, as well as the fact that the complaint could have been done without cost in a number of ways[3] the absence of such a complaint is due to the fact that the applicant has fabricated the claim.

    [3] >

    His claim also lacks any substance.  Despite claiming to have had a sexual relationship with a [Nationality 1] named [Mr A] in 2012 and to have come to terms with his bisexuality and accepted it wholeheartedly.  He could offer no evidence to back up his claim; no details of [Mr A] or confirmation that [Mr A] was even his real name; no photos of him with any other gay people, no emails, texts or evidence of any communication that would indicate he had any connection, let alone relationship with any gay person or organisation.

37. He had no record of interacting with, or trying to establish contact with the gay community in Sydney.  Country information[4]  indicates that there is an active scene for Arabic-speaking gays in Sydney, including ones that create a safe space for gay people.  Given his claim that he is still embarrassed to talk about his homosexuality (inconsistent with the graphic sexual description he made in his statutory declaration in 2014), it is reasonable to believe that he would have sought out a safe space that would allow him to express the bisexuality he had ‘accepted wholeheartedly’.

    [4] ‘The Only Gay Arab in the Village’, The Music, 2 March 2014 accessed 31 March 2014

38. I have taken into account two letters provided post-hearing (folios 67/68) that claim to be from someone who also claimed to have been bisexual and in a relationship with the applicant, as well as one from the applicant’s [sibling] who claimed the applicant was bisexual.  I lend them little weight; they are handwritten with no contact details and could have been authored by anyone.  The alleged bisexual lover was never previously mentioned by the applicant and I lend more weight to the lack of credibility displayed by the applicant throughout the hearing.  Because I do not accept that the applicant is gay or bisexual, it follows that he would not be jailed or killed for being gay.

39. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.   

    Complementary Protection

40. Because I do not accept that the applicant is or would be perceived to be gay or bisexual, or that the applicant would be harmed by his father, his father’s family or Islamic State for converting to Christianity I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

41. As a consequence I also 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 the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

1. 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).

2. 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).

3. 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

4. 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, and DFAT country information assessments – to the extent that they are relevant to the decision under consideration.