1500985 (Refugee)

[2016] AATA 4339

1500985 (Refugee) [2016] AATA 4339 (24 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500985

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:24 August 2016

PLACE OF DECISION:  Sydney

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

Statement made on 24 August 2016 at 12:51pm

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

Background, Claims and Evidence

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, a Sunni Muslim, is [age] and a citizen of Lebanon. He arrived in Australia [in] February 2008 on [another class of] visa. In May 2010 he married an Australian citizen. They were divorced in June 2012. The applicant applied for a protection visa [in] September 2014.

   Claims before the Department

3. In a statutory declaration, signed [in] August 2014 and submitted in support of his application for a protection visa, the applicant claimed that he is a member of the Tawhid Party in Tripoli and that his father has been a ‘senior member’ of the Party since 2006. He stated that he resided in Bab al-Tabbaneh, where his Party and other militias in the area were engaged in an armed conflict with Alawis from Jabal Mohsen and militias supporting Hezbollah. His father had a shop in Bab al-Tabbaneh, but after the assassination of Rafiq Hariri, they became ‘a target’ of the Alawi militia and explosions occurred ‘near’ the shop. These militias believe that the applicant and his father have been responsible for the killing of some of their members.

4. The applicant claimed that he was not a ‘fighter’ and refused to fight with any group in Bab al-Tabbaneh. He believes ‘this war is illegal and not fair’. He arrived in Australia in 2008 and, since his departure from Lebanon, he has received ‘several death threats’. Recently, one of his neighbours in Tripoli was killed by the Alawi militia. Hezbollah controls the airport in Beirut and if he were to return he would be harmed. The Lebanese authorities would be unable to protect him.

5. The applicant did not attend the Departmental interview and the delegate refused the application [in] Jan 2015.

   Application for Review

6. The applicant applied for a review of the delegate’s decision. He was represented in relation to the review by his registered migration agent.

7. [In] July 2016, the applicant provided the Tribunal with a statutory declaration, dated [in] July 2016, in which he provided the following additional information:

8. He lived with his parents in [a suburban] area of Tripoli, which is in close proximity to Bab al-Tabbanen and Jabal Mohsen. Since 2005, they were involved in a serious dispute with the ‘non-Sunni’ community which resided in Jabal Mohsen.

9. His family had a business in Bab al-Tabbaneh and they had many non-Sunni customers, including Alawis from Jabal Mohsen. After the July 2006 Lebanon-Israel war, the applicant’s father supported Hezbollah, displaying photographs of Hezbollah’s leader, Hassan Nasrallah, in his shop. This caused many problems as relatives and other Sunnis living in the area stopped coming to the shop. The applicant was ‘advised’ to take the photos down before someone in his family gets ‘seriously harmed’. He became scared and decided to stay away from the troubles and his family’s life.

10. ‘The next day’, [number] people on a motorcycle entered the shop and threatened him to take the photos down. They said that this would be their final warning. He became scared and decided to take down the photos. However, his father, who had travelled to Beirut to attend Hezbollah’s ‘victory’ celebrations, returned with a big Hezbollah flag, which again angered the community. That night the shop was robbed and damaged. His father continued to support Hezbollah ‘secretly’ and kept one photo at home.

11. On one occasion, a customer from Jabal Mohsen was involved in an altercation with one of the applicant’s Sunni neighbours. The Alawi man was beaten and expelled from the area. Later that night, shots were fired at the neighbourhood, damaging the store. They were threatened that they would be killed if they were seen anywhere near Jabal Mohsen.

12. Subsequently, the applicant decided to focus on his studies. With the support of his father, he decided to finish his schooling and continue his studies overseas. His intention, initially, was to study in [Europe], but his father convinced him to go to Australia. He arrived in Australia in 2008 and soon after he met his ex-wife. His father was opposed to his marriage and stopped talking to the applicant. In 2011, the applicant’s childhood friend and next door neighbour, [Mr A], was killed as a consequence of the conflict in Bab al-Tabbaneh. In 2012, the applicant’s marriage ended, which resulted in him suffering from depression. In addition, his parents got divorced and [a family member], moved away after being threatened by Bab al-Tabbaneh ‘gangs’.

13. He faces danger in Lebanon and his [family member] has told him that he will face the same fate as [Mr A] and Bab al-Tabbaneh ‘gangs’ will not accept him.

14. The applicant submitted two witness statements in support of his application from [Mr B] and [Mr C].

15. In his statement, [Mr B] stated that he is a close family friend of the applicant and has known his family for a long time. They lived in the same area and saw each other often. In the conflict that erupted in Tripoli after the July 2006 war, the applicant’s family business was attacked and his house was damaged. The applicant’s father was a supporter of Hezbollah and openly promoted Hezbollah’s ideas. He also displayed photos of Hezbollah’s leader. These actions were not accepted in the area. The applicant’s father’s views caused significant problems for the family and that one of the applicant’s friends was killed in 2011 by ‘Sunni gangs’.

16. [Mr C] stated in his statement that he is a close family friend of the applicant. They grew up in the same area and he had a good relationship with the applicant’s father. He stated that the applicant has told him about his situation and he knows that since 2006 the applicant’s [family member] has been attacked by local gangs because of  [support] for Hezbollah. He stated that the applicant’s divorce had been very stressful and his level of stress was increased after his friend, [Mr A], was killed.

17. The applicant also submitted further photographs of death and destruction in the Bab al-Tabbaneh area.

18. The applicant appeared before the Tribunal on 26 July 2016 and again on 15 August 2016 to give evidence and present arguments. The Tribunal also took oral evidence from [Mr B] and [Mr C]. Both hearings were conducted with the assistance of an interpreter in the Arabic and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The Relevant Law

19. 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.

20. 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).

21. 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.

22. 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’).

23. 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 (DFAT) 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); the DFAT Thematic Report-Sectarian Violence in Lebanon (published on 18 December 2013); and DFAT Country Report Lebanon (published on 18 December 2015).

    Analysis, Reasons and Findings

24. The issues in this case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in Lebanon and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Lebanon, there is a real risk that they will suffer significant harm.

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

26. In his application for a protection visa, the applicant claimed that he was a member of the Tawhid Party in Tripoli. He claimed that his father was a ‘senior member’ of the same party since 2006. He claimed that his Party and other militias in the area were engaged in armed conflict with Alawis from Jabal Mohsen and militias supporting Hezbollah. He claimed that after the assassination of Prime Minister Rafiq Hriri, he and his father became ‘a target’ of the Alawi militia because they believed that the applicant and his father have been responsible for the killing of some of their members. He further claimed that Hezbollah controls the airport in Beirut and, if he were to return, he would be harmed.

27. The applicant’s claims in his application for a protection visa were not consistent with his evidence to the Tribunal. In his oral evidence to the Tribunal, the applicant claimed that he was not a member of any political party or entity and was not engaged in political activities. He stated that his father began supporting Hezbollah after the July 2006 Lebanon-Israel war. This caused many problems with the Sunnis living in the area. The applicant also stated that his father’s shop had many Alawi customers and on one occasion one these customers became involved in an altercation with one of the applicant’s neighbours. The customer was expelled from the area after being beaten. That night, the Alawis fired shots at the applicant’s neighbourhood. When asked why the Alawis wanted to harm him, he said because his father removed Hasan Nasrallah’s photographs from the shop and the Alawis thought that they no longer supported Hezbollah.

28. When the inconsistencies in the applicant’s evidence were put to him, he stated that his father was a member of the Tawhid Party and he just followed his father. He stated that he fears harm from both Sunnis and Alawis. However, he went on to reiterate that he fears the Sunnis in his area because his father was previously with a Sunni militia but, after 2006, he started supporting Hezbollah. The applicant did not offer a persuasive explanation as to why he had claimed to have been a member of the Tawhid Party or why he feared the Alawis or Hezbollah in his area. The Tribunal is also of the view that the applicant’s evidence that removing Hezbollah related photographs from the shop had prompted the Alawis to believe that the family no longer supported Hezbollah is improvised and contrived.

29. The inconsistencies in, as well as the problematic nature of, the applicant’s evidence cast doubt on the veracity of his claims. Nevertheless, having regard to the totality of the applicant’s claims, including the testimony of his two witnesses, the Tribunal is prepared to accept certain aspects of the applicant’s claims. The Tribunal accepts that the applicant resided in [suburb], Tripoli. The Tribunal accepts that [suburb] is a Sunni area and almost adjacent to Bab al-Tabbaneh. The Tribunal accepts that the applicant’s father began supporting Hezbollah in 2006 and displayed Hezbollah flags and photographs of the group’s leader in his shop. The Tribunal accepts that these actions would have been provocative in the applicant’s area and had attracted the adverse attention of other Sunnis. The Tribunal accepts that the applicant’s father, as well as the applicant, who was helping in his father’s shop, became a target of threats, asking them to remove the flags and the photographs. The Tribunal further accepts that shots were fired at the applicant’s father’s shop and their house. The Tribunal, however, is not persuaded and does not accept that the applicant was targeted by Alawis or Hezbollah or that he was ever targeted, threatened or otherwise harmed by members of these groups. Nor does the Tribunal accept that the altercation between the applicant’s neighbour and an Alawi customer had any adverse implications for the applicant or members of his family. The Tribunal does not accept that the Alawis or any individual or group associated with the Alawis had shot at or targeted the applicant’s house or the applicant’s father’s shop.

30. In his oral evidence to the Tribunal, the applicant stated that he was threatened on three separate occasions in 2006 by other Sunnis in the area. Soon after, he left his neighbourhood and mostly lived with his [relatives] in other areas of Tripoli until February 2008 when he came to Australia. During this period, he completed his secondary schooling and then studied [language]. The applicant, however, did not claim to have been pursued or to have suffered any harm during this period. Nor did he claim that anyone had tried to find him. When this was put to him at the hearing, he claimed that he had made up ‘news’ that he had travelled to [Europe]. The applicant’s evidence clearly suggests that those who had threatened him in 2006 were concerned with his father’s actions and had specifically demanded the removal of Hezbollah’s flags and Hasan Nasrallah’s photographs from the shop. Whilst the Tribunal accepts that the applicant’s father’s views and actions might have imputed the applicant with a pro-Hezbollah political opinion, as it was put to the applicant, according to his evidence at the hearing, he was not a member of any political party in Lebanon, he did not engage in any political activities, he did not echo his father’s views and he did not have a profile that would have been of an ongoing concern to any Sunni group or individuals in Tripoli.

31. In his statutory declaration [in] July 2016, the applicant stated that his [family member], moved away after being threatened by Bab al-Tabbaneh ‘gangs’. He further stated that his [family member] has told him that he (the applicant) will face the same fate as [Mr A] and that Bab al-Tabbaneh ‘gangs’ will not accept him. At the hearing, the applicant’s evidence in relation to his [family member] was vague and unconvincing. The applicant stated that he had spoken to his [family member] earlier in the year. His [family member] had been threatened because he supported Hezbollah. He stated that, sometime ago, his [family member] was in Beirut, but he is not aware of his [family member]’s current whereabouts. Nevertheless, he claimed that his [family member] had told him that there are people threatening him (the applicant). [Mr B] also stated at the hearing that he had met the applicant’s [family member] in Beirut during his most recent trip to Lebanon and that applicant’s [family member] had told him that the applicant’s life is at risk. Neither the applicant nor his witnesses provided any meaningful information in relation to the applicant’s [family member]’s circumstances or the identity of the ‘people’ who, according to the applicant’s [family member], are still threatening the applicant.  

32. The applicant stated at the hearing that he does not support Hezbollah. He has provided no persuasive reason as to why Sunnis, including militants, from his neighbourhood or nearby Sunni neighbourhoods would continue to harbour an adverse interest in him or wish to harm him now - 10 years after he was threatened. Indeed, the applicant did not claim that, other than what was referred to above, his father, who was a vocal supporter of Hezbollah and had remained in [suburb] following the applicant’s departure from Lebanon, had personally suffered serious harm as a consequence of his views or actions from 2006 to 2011, when the applicant stopped communicating with him.

33. Furthermore, as it was put to the applicant at the hearing, if he had a genuine fear of being harmed in Lebanon, he would not have waited some 8 years after he arrived in Australia to apply for a protection visa. The applicant explained at the hearing that he initially had [another class of] visa and subsequently he was granted a spouse visa. He stated that, after the breakdown of his marriage, his [family member] had told him that there are people threatening him. When it was put to him that his marriage had ended in 2012 and he had applied for a protection visa in September 2014, he stated that he is not in contact with his family and he could not ask anyone. The situation deteriorated when the Syrian civil war started, he suffered from depression and he did not know what to do. When the Tribunal noted that he speaks English and has close friends in Australia, he said he was afraid that, if he were to approach the Department, he would be returned to Lebanon and he did not know that he could apply for a protection visa. The Tribunal does not find these explanations satisfactory. The applicant has been in Australia since 2008. He is educated and familiar with visa related processes, having applied for a spouse visa in the past. He has close friends, including [Mr B] and [Mr C], who were both born in Australia. The Tribunal does not accept that he was unaware that he could apply for a protection visa. The Tribunal is of the view that, if the applicant had a genuine fear of being harmed in Lebanon, he would not have waited some 8 years after he arrived in Australia to apply for a protection visa.

34. The Tribunal accepts that the applicant’s friend and neighbour, [Mr A], was killed in 2011. The applicant explained at the hearing that [Mr A] had been shot by a sniper. The applicant did not offer any further details regarding the circumstances of his friend’s death. Whist in his statutory declaration [Mr B] claimed that [Mr A] had been shot by Sunni gangs, in his evidence to the Tribunal, he offered no further explanations as to the circumstances of [Mr A]’s death. More importantly, at no point the applicant had claimed that [Mr A] had fallen foul of other Sunnis in the area for any reason. The Tribunal does not accept that [Mr A] was targeted or killed by ‘Sunni gangs’.

1. The country information before the Tribunal suggests that neighbourhoods of Jabal Mohsen, a mainly Alawite area, and Bab El Tabbaneh, a Sunni district, have a long-standing feud, which sporadically erupts into violent clashes between residents of the two areas.[1] The photograph submitted by the applicant shows the extent of the damage and destruction in Bab al-Tabbaneh, caused by the clashes over the years. The Tribunal accepts that due to its proximity to these areas, the applicant’s neighbourhood of [name] has, at times, been caught in the crossfire in the course of skirmishes between the sparring neighbourhoods. According to DFAT, sectarian violence in Tripoli is mostly limited to the Alawi suburb of Jabal Mohsen and the Sunni suburb of Bab al-Tabbaneh. The meeting point of these two suburbs, Syria Street, is a recurring flashpoint for sectarian violence. [2]

   [1] see Macleod, H. 2008, ‘Tripoli’s Perfect Storm’, Sunday Herald, 16 August, DFAT Country Report Lebanon, 18 December 2015.

DFAT, in its most recent country report on Lebanon, has observed that Tripoli is now broadly stable, though vulnerable to outbreaks of renewed violence. Whist DFAT has also observed that Sunnis living in Bab al-Tabbeneh face a moderate risk of violence given the long history of sectarian violence in the area[3], the report does not suggest that Sunnis who live in other areas of Tripoli, including [suburb] face the same risk. On the basis of the evidence before it, the Tribunal is not satisfied that the applicant’s friend was specifically targeted by anyone. The applicant did not reside in Bab al-Tabbaneh and the Tribunal is not satisfied that the applicant’s friend’s death in [suburb] in 2011 means that, if the applicant, as a Sunni, were to return to [suburb], there is a real chance or a real risk that he would be subjected to serious harm or significant harm.

[3] Ibid.

For these reasons and having regard to the significant passage of time since the applicant departed Lebanon, the Tribunal is not satisfied that Sunnis, Sunnis militias, Alawis, Alawi militias, Hezbollah or other groups or individuals have an adverse interest in the applicant or that they intend to harm him. The Tribunal is not satisfied that, if the applicant were to return to Lebanon, there is a real chance or a real risk that he would be subjected to serious harm or significant harm by Sunnis, Sunnis militias, Alawis, Alawi militias, Hezbollah or any other groups or individuals.

The Tribunal appreciates that the applicant is concerned about general violence, ‘war’ and tension in Lebanon. However, there is no persuasive 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 him 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.

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 no real risk that the applicant will suffer significant harm in Lebanon as a result of lack of general security and instability.

The Tribunal has considered a psychological report submitted by the applicant. The report, which is authored by [Mr D], Mental Health Counselor, is dated [in] August 2016. In his report, [Mr D] states that he has seen the applicant on numerous occasions over the past 18 months and that the applicant has been diagnosed with ‘[condition]’. [Mr D] stated that the applicant had complained from [symptoms]. [Mr D] stated that ‘the development of his psychological disorder is associated with his current stresses related to his unclear immigration status in Australia and the fear of being forced to return to Lebanon’. The report refers to the applicant’s account of being disturbed by images of war in Lebanon and states that his mental health may deteriorate as a consequence of his ‘unresolved immigration status’. It further states that his mental health ‘is likely to improve if he were to receive ‘a positive immigration response in regard to his application’. 

The applicant, however, has made no specific claims for protection in relation to his psychological condition. The Tribunal appreciates that the breakdown of his marriage had caused the applicant much distress. The applicant has also given evidence that his parents have now separated and that the applicant has not been in contact with members of his family, other than [a certain family member], for a number of years. Whist the Tribunal appreciates that the applicant would find it challenging to readjust to life in Lebanon, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Lebanon for a Convention reason as a result of his state of mental health or current personal circumstances.

The Tribunal is not satisfied that if the applicant, upon being removed to Lebanon, were to continue to suffer from the psychological ailments he has been diagnosed with, there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal, there is a real risk that he will be subjected to any form of harm, including disability related discrimination, that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm from the authorities that would involve the infliction of severe pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. 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 he will be subjected to significant harm arising from his mental health.

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