1502175 (Refugee)

1502175 (Refugee) [2017] AATA 1036 (25 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1502175
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Giles Short
DATE:25 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 May 2017 at 9:16am

CATCHWORDS
Refugee – Protection visa – Lebanon – Complementary protection – Religion – Convert to Jehovah's Witness – Sunni Muslim – Fear of violence and abuse – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
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
INTRODUCTION

[The applicant] is a citizen of Lebanon. He last arrived in Australia as a student in May 2008 and as referred to in the decision under review (a copy of which he provided to the Tribunal along with his application for review) he first applied for a protection visa in July 2010. In that application he claimed to be a convert to the Jehovah’s Witness religion and he said that if people in his religion knew that he followed the Jehovah’s Witnesses they would kill him. His first application was refused in February 2011 and the Refugee Review Tribunal affirmed that decision in August 2011. [In] November 2012 [the applicant] lodged his current application for a protection visa and along with that application he produced a copy of the same statement which he had submitted in support of his first application.
[The applicant]’s current application for a protection visa was refused by a delegate of the Minister for Immigration [in] February 2015 and he applied to this Tribunal for review of that decision. At the hearing before me on 16 November 2016 I referred to the fact that he had applied for a protection visa previously and that he had been allowed to make a further application as a result of a decision made by the courts in Australia. I noted that his first application had been considered under the Refugees Convention and I explained to him that this meant that, in accordance with the decision of the courts, I could only consider his current application under the complementary protection criterion.[1] A summary of the relevant law is set out at Attachment A. The issue in this review is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.
[1] See SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 and see also Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127.
CONSIDERATION OF CLAIMS AND EVIDENCE
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm?
[The applicant]’s claims for protection
[The applicant] is aged in his early [age]. In the statement accompanying both his first application and his current application he said that he had heard some news about Jehovah’s Witnesses in Lebanon but he had not been able to join this religion in Lebanon because it would have been very dangerous for him. He said that he was a Muslim and that if people in his religion knew that he followed the Jehovah’s Witnesses they would kill him. He said that his parents had come to Australia for a holiday and his father had smacked him on his face two times because he was using the internet and not going to the mosque. He said that he had been reading about the Jehovah’s Witnesses on the internet and he had decided to join this religion.
[The applicant] was interviewed by the primary decision-maker in relation to his first application [in] February 2011. He said that his relationship with his family had broken down after his father had smacked him on his face which he said had been in July 2009. He said that in January 2009 he had had an [operation] and his parents had come to Australia at the time of the operation. He said that they had stayed in Australia for 10 months on this visit. He said that someone had told his father that they had seen him going to the Kingdom Hall in [suburb] and his father had been angry. He said that if he returned to Lebanon he could be kicked out of his village and he could be killed by his family. He said that Muslims were strictly forbidden to change their religion and they would not leave him alone. He said that they would send him away and then he could be killed by anyone. He said that his father would encourage others to kill him.
[The applicant] said that he had first become aware of the Jehovah’s Witnesses when doing his military service (in 2005 according to his application). He said that the aunt of one of the people doing military service with him had once been visited by Jehovah’s Witnesses. He said that he had been interested in knowing more about this religion but he had not been able to do anything until after he had come to Australia. He said that at the time of the interview he had been attending the Kingdom Hall and studying the Bible for seven or eight months. He said that after he had had his [operation] he had searched on the internet and had found the Kingdom Hall at [suburb]. He said that he had gone there many times but it had been closed. He said that he had first talked to someone there seven or eight months before the interview. [Mr A] of the Jehovah’s Witnesses, who attended the interview, said that it would have been in late May or early June 2010.
[The applicant] said that he had moved to Tripoli (where his family had a house) to go to school. He said that his parents lived in Akkar and they were [retired]. The primary decision-maker asked him why he could not move to Beirut and practise his religion in Beirut. [The applicant] said that he had never worked in Lebanon - he had been supported by his parents - and even if he went to Beirut it would not be easy because there was a lot of competition and the unemployment rate was very high. The primary decision-maker put to him that there were Jehovah’s Witnesses congregations in Qalamoun, south of Tripoli, and in Akkar. [The applicant] said that no one would provide protection for him. He said that as a Sunni Muslim who had changed his religion he would be killed anywhere he lived in Lebanon. In a brief submission dated 24 February 2011 his representatives referred to a number of decisions of the Refugee Review Tribunal relating to Jehovah’s Witnesses in Lebanon and submitted that proselytising was illegal in Lebanon and that Jehovah’s Witnesses could not rely on the authorities for protection if they were assaulted by private individuals or groups.
At a hearing before the Refugee Review Tribunal on 5 July 2011 [the applicant] said that his parents lived in [a village] in Akkar. He produced a medical certificate stating that he had attended a medical clinic [in] May 2010 which he said related to the incident in which his father had slapped him in the face. He confirmed that he claimed that he feared that he would be killed because of his conversion if he returned to Lebanon. He said that Jehovah’s Witnesses were rejected by everyone in Lebanon - both by Sunni Muslims and Christians - and that they met secretly although he also said that they went door to door and they faced a lot of verbal assaults and got kicked out by people. He said that they did not go to Sunni Muslim houses but to the houses of other Muslims such as Alawites because they could have a conversation with them a bit. He said that if he returned to Lebanon as a Jehovah’s Witness he would have to go door to door and he would be at great risk. He said that his family and other Sunni Muslims would able to find him and kill him.
[The applicant] said that the political and social situation in Lebanon was confused and he was not interested in returning to Lebanon. He said that his health situation would also prevent him from returning to Lebanon and that it would be expensive to see [a specialist] there. He said that he was not currently taking any medication for his [condition] nor was he seeing [a specialist] in Australia at the time of the hearing. He said that he had to wash [the affected area] every day and to make sure that there was no dust or anything which would affect his [condition]. [The applicant] referred to his attendance at the Kingdom Hall in [suburb] and his representatives subsequently produced copies of photographs showing him at the Kingdom Hall and a letter dated 3 July 2011 from [Mr A] confirming that [the applicant] had been attending meetings and that they had been studying the Bible together since July 2010. In a submission dated 6 July 2011 his representatives submitted that if he returned to Lebanon he would have to refrain from proselytising to avoid serious harm.
On 29 January 2015 [the applicant]’s representatives produced to the Department a statutory declaration made by him that day in relation to his current application in which he said that, while he remained committed to the Jehovah’s Witness faith, he seldom attended the Kingdom Hall due to numerous threats which he had been receiving from his parents and close relatives. He said that because people had been following him and reporting his activities to his father he had made a decision to dissociate himself from the Jehovah’s Witnesses. He said that his father and [relatives] in Lebanon were very religious and that his father had threatened to harm him because he considered that his actions had brought enormous shame on his family. He said that he was unable to rely on the protection of the Lebanese authorities because they did not intervene in religious matters. He said that he was suffering from depression and that he had been unable to obtain proper treatment because he did not have access to Medicare.
[The applicant] was interviewed by the primary decision-maker in relation to his current application [in] February 2015. He said that his religion was Jehovah’s Witness but he was not baptised yet. He said that he was living with [one of his siblings] in [location] and that he had been living there for nearly two years. He said that if he returned to Lebanon he would be killed or rejected by the Muslim society, especially in his area. He said that everyone knew that he had changed his religion. He said that the first threat was from his parents but he could be killed by Muslim people at any time and anywhere. He said that religion was very important for these people and they would not accept anyone of his family changing their religion. He said that this was considered a big mistake against God. He said that it had been after he had come to Australia that he had decided to change his religion. He said that he had been waiting until he had a chance to do it. He said that he had needed help from his family at the time of his [operation] so it had only been after this that he had been able to change his religion. He said that he had practised his religion as a Muslim in Lebanon and that he had also attended the mosque in Australia.
[The applicant] said that a friend in Lebanon had told him about the Jehovah’s Witnesses and it had become a dream for him: he had wanted to practise it. He said that when he had been able to do so he had spoken to people at the Kingdom Hall and he had understood more and more. He said that he had stopped going to the Kingdom Hall after his hearing before the Refugee Review Tribunal because he had feared that he would have to return to Lebanon. He said that he had been going to tell people in Lebanon that he had stopped going. He said that he had not known that he was going to be able to make another application. He said that he still loved this religion in his heart but he had not done anything to practise it since then.
[The applicant] said that the only thing which had happened to him in Australia was that his father had slapped him in the face as he had said in the statement accompanying his original application. He said that he had been told that his life would be difficult if he went back to Lebanon. He said that he did not talk to his [siblings] apart from the [one] he was living with. He said that it would be hard from him to get a job in Lebanon because he was disabled because of his [condition].
On 14 November 2016 [the applicant]’s representatives produced to the Tribunal a letter dated [November] 2016 from a psychologist who said that he had been referred to her in October 2015 by his general practitioner for [treatment] and that she had seen him on three occasions: in October and November 2015 and in November 2016. The psychologist referred to [the applicant]’s history in Australia and his claims. She said that he did not have contact with any of his immediate or distant family in Australia or in Lebanon and that this level of isolation had left him feeling very lonely.
Discussion of the issue
At the hearing before me on 16 November 2016 [the applicant] said that he had been living with a friend at the address on his driver’s licence, [address], for a year and that before that he had been living at the address he had given in his application for [review]. He said that he had been living there with a friend. After I put to him that when he had been interviewed by the primary decision-maker in relation to his current application [in] February 2015 he had said that he had been living at this address with [one of his siblings], [the applicant] said that his [sibling] had lived with him at this address and he confirmed that his [sibling] had been paying the rent. He said that his [sibling] was no longer living with him because his [sibling] wanted [his/her] own private life. He said that he was able to pay the rent where he was living at the time of the hearing because he was receiving payments from Centrelink. He confirmed that he had access to Medicare. I noted that previously he had said that he did not have access to Medicare. [The applicant] said that two years previously he had gone and explained his situation at the Medicare office. He said that he had got a letter from the Department of Immigration and in this way he had got access to Medicare.
[The applicant] said that the highest level of education which he had completed in Lebanon had been Year 12. He said that he had attended college in [Tripoli]. He said that immediately before he had left Lebanon he had been living in Tripoli and in the village: a few days here and a few days there. He said that on the days on which he had been studying he had been in Tripoli. He said that he had never worked in Lebanon: his parents had supported him. He said that in Australia he had worked in a [workplace] at [another workplace] and as [an occupation] at [a third workplace].
[The applicant] said that he thought that he had had the [operation] to which he had referred in 2010. After I put to him that when he had been interviewed in relation to his first application he had said that it had been in January 2009 [the applicant] said that it could have been between 2009 and 2010 and that he forgot. He then said that he remembered he had had the operation in 2009, before he had finished his study in Australia. I noted that he had not finished his study until 2010 and that it had been in 2010 that he had applied for protection. [The applicant] repeated that he could not remember when he had had the [operation] but that it had been before he had finished his study. He said that he was not too sure if it had been in 2009 or 2010. He said that he remembered that it had been about six months before he had finished his study. I put to him that this would suggest that it had been in 2010 because as we had just discussed he had only finished his study in Australia in July 2010. [The applicant] said that he could not remember the dates and days about the things which had happened to him.
I referred to the fact that [the applicant] had said that he feared returning to Lebanon because he had converted to the Jehovah’s Witness religion. [The applicant] said that this was correct. He said that they would kill him because he had changed from one religion to another. He said that he would not be able to live a normal life and it would be very difficult for him to get to the Jehovah’s Witnesses congregations because they met secretly. He said that he would always be living in fear because he was from the North and there were lots of Muslim people over there. He said that it was well-known that Jehovah’s Witnesses were not liked in Lebanon. He said that he would not be able to stay in the village because it was very well-known in the village that he had changed his religion.
After I put to [the applicant] that he would presumably be going back to Tripoli where he had said he had been living immediately before he had left Lebanon he said that he did not have anyone there. He said that his family had a home in Tripoli and in the village but he had nowhere to go and he would be in fear all the time. He said that he would not be able to go anywhere or to do anything. He said that they would look at him differently and life would be very difficult for him over there, living in an environment where everyone disliked him. He confirmed that the reason why he feared this would happen was that he had changed his religion. He said that they would tease him and call him names and this would destroy him.
I asked [the applicant] when he had first come to know about the Jehovah’s Witness religion. He said that he had come to know about them in Australia but that he had heard about them in Lebanon, especially when he had been in the Lebanese Army. He said that one of the other conscripts had said that he knew someone from the Jehovah’s Witnesses who had chosen to be in prison for one year rather than to serve in the army. He said that they did not serve in the army and they did not salute the flag because they considered that this was saluting Satan. He said that he had also heard that they did not give blood. He said that he had been interested and he had wanted to know more but he had been unable to do this in Lebanon. He said that in the army you were not allowed to talk about politics or religion. He said that this idea had stayed in his heart.
I asked [the applicant] what his intention had been when he had first come to Australia. He said that he had come to study first of all and then after he had finished his study he had wanted to explore the Jehovah’s Witness religion. He said that this had been in his heart but he had not been able to do this straight away. I asked him if he had been intending to return to Lebanon after he had completed his studies. [The applicant] said that he had not intended that and that after he had finished his studies the situation had not been good. He repeated that he had wanted to explore the Jehovah’s Witness religion. He said that this had not been encouraging him to return to Lebanon. He said that at that time there had been lots of trouble and friction in Lebanon. He said that the situation in Lebanon, politically and socially, had not encouraged him to go back. He said that it had not been safe for him to go back: it had not been safe for the normal people there.

[The applicant] said that he had been afraid if he went back and if they knew that he had become a Jehovah’s Witness. I put to him that he had not taken any steps to become a Jehovah’s Witness at that time, as I understood it. [The applicant] confirmed that this was correct. He said that at that time, before he had finished his study, he had believed by himself for a while and then he had started contacting the Jehovah’s Witnesses and he had liked it. He said that after he had got involved with them everyone had known about him and it had spread back to Lebanon. He said that after he had finished his study he had still had six months on his visa to stay in Australia. He said that at this time he had not been living with any of his siblings. He said that then he had got more involved with the Jehovah’s Witnesses and this had been how he had become scared to go back to Lebanon.
I referred to the fact that at the time when [the applicant] had appeared before the Refugee Review Tribunal in July 2011 he had been attending the Kingdom Hall and studying the Bible for around one year and I asked him if he had got baptised. [The applicant] said that he had not. I referred to the fact that in his statutory declaration which he had made on 29 January 2015 he had said that he had seldom attended the Kingdom Hall. [The applicant] denied saying this. He said that he had stopped attending the Kingdom Hall two months after the hearing before the Tribunal in July 2011, after he had received the Tribunal’s decision.
I noted that in [the applicant]’s statutory declaration made on 29 January 2015 he had also referred to numerous threats which he had said he had been receiving from his parents and close relatives and I asked him what form these threats had taken. [The applicant] said that he had tried to talk to his parents but they had said that they were not his parents any more, that he was not their son and that he would not be able to stay with them if he went back home. [The applicant] said that in the area which he came from, Akkar, it was very difficult for a person to change their religion. He said that at this time as well he had had physical problems and emotional issues. He said that he had tried to talk to his family in Lebanon through a third person but they had rejected this completely.
I noted again that [the applicant] had said that he had received numerous threats from his parents and close relatives. [The applicant] said that people who had gone from Australia to Lebanon had told him when they had come back what had been said. He said that people had told him that his family did not like him any more and they did not want him to go back there. He said that this had caused health issues and emotional issues for him. He said that there was one specific person with whom he communicated all the time but other people just passed on information to him. He said that this information was passed on from one person to another or they would call him. He said that this was why he had changed his phone number many times. He said that the one person with whom he communicated all the time was a social [worker]. He said that [the social worker] had tried to fix the problems between him and his family but it had been impossible. I asked [the applicant] if he had ever been threatened by anyone in the Lebanese community here in Australia since he had started attending the Jehovah’s Witnesses here. [The applicant] said that they would not dare to threaten him here but they did not like him and they would not associate with him.
[The applicant] confirmed that he claimed that it had been his dream to become a Jehovah’s Witness and that he had come to Australia with the idea of trying to find out more but that he had done nothing about this for two years, until he had completed his studies. He confirmed that he had only sought out the Jehovah’s Witnesses when he had been about to apply for a protection visa. I put to him that this suggested that he had simply seen this as a pathway to getting a protection visa. [The applicant] referred again to the fact that after he had finished his study he had still had six months on his visa to stay in Australia. He said that he had had reasons why he had not been able to go and seek the Jehovah’s Witnesses before.
I put to [the applicant] that the only reason he had given me was that he had decided to finish his studies first. [The applicant] said that the main reason had been that he had been living with his siblings here in Australia and he had not known how to go about dealing with his issues. He said that he had still been new in Australia and he had not had a car. He said that his [siblings] had made him stay with them at home because they had been afraid that he would go and get in trouble. He said that he had not had his own laptop computer at that time. He said that later on he had bought one himself.
[The applicant] said that he had not had freedom when he had been living with his siblings: they had come into the room without knocking when he had been using the computer. He said that they would have thought that he had been looking at pornography or something like that. He said that he had needed their help to get to the train stations and to explain to him about everything. He said that he had not known how to go from one street to another. He said that even his English had been very weak so he had been unable to go out and ask for himself. He said that he had not been able to live a normal life with his siblings in this environment. He said that it had been very difficult for him to live with them with his own ideas, especially now that he had become a Jehovah’s Witness. He said that he had not had a job as well at that time.
[The applicant] then confirmed that, contrary to his claim that he had not had a job, he had in fact been working [while] he had been studying. He said that he had worked for the 20 hours for which he had been permitted to work. He said that after he had applied for a protection visa he had been able to work full-time. He said that then he had worked more hours [and] then he had moved out and rented his own place. I put to [the applicant] that although he had said his English had been limited he had come here to study and his studies had been in the English language medium. [The applicant] said that he had done an English language course but they understood that they were overseas students so they took it easy on them, step by step. He said that it had not been his English language ability that had prevented him from joining the Jehovah’s Witnesses at first: it had been the fact that he had been living with his siblings and the way of life he had been living that had prevented him.
I put to [the applicant] that he had been going out to study and he had been going out to work. [The applicant] said that he had gone to study for two days a week from 8.00 am until 6.00 pm and then for another two days he had worked at the [workplace] with a Lebanese manager. He said that it had depended on the workload so it had not always been on specific days. I indicated to him that I was not inquiring into his work arrangements and whether he had exceeded the 20 hours per week which he had been permitted to work or not. I put to him that the point I had been trying to make was that he had not been restricted to his family home. [The applicant] said that his family had allowed him to go to school and to work but they had always asked him when he had been coming back and he had had to be on time. He said that he had also been giving them documents from the educational institution he had been attending confirming his attendance there and reports if he had passed the subjects or not.
I put to [the applicant] that it was difficult for me to accept that if he had genuinely wanted to find out about the Jehovah’s Witnesses he would not have done so before he had finished his studies. [The applicant] said that he had not been able to join the Jehovah’s Witnesses until he had been able to buy his own laptop computer to search for them. He said that it had been difficult for him to search for them while living with his siblings. I put to him that he had been going out to an educational institution so he had had ample opportunity to search for things if he had wanted. [The applicant] said that he had not thought of doing this. He said that he had thought that he would do this in his own free time. He said that it had been difficult for him to get to them because he had not known the area as well.
[The applicant] said that he had explained all this before when he had made his first application for a protection visa. He said that when you were living in an environment at home it was very difficult for you to get out of it. He said that he had lived with his siblings and he knew how they thought. He said that it would have been difficult for him if they had called him and asked him where he was. He said that it was true that he had been going out to study but he had not known how to get around at that time. He said that then he had bought a car and then he had gone and looked for the Jehovah’s Witnesses. He said that for a person to seek the Jehovah’s Witnesses you needed to be ready: you needed to have transport and to be ready completely.
I put to [the applicant] that he had not needed to have his own transport to find the Jehovah’s Witnesses and that he could have looked for them using the computers at the educational institution he had been attending. [The applicant] said that he had not thought of this and he had been afraid because he had thought that he had not been allowed to do this. He said that he had been studying to be [an occupation]. He repeated that he had studied for two days a week, on Wednesdays and Thursdays, and that the Wednesdays had been all practical. He said that there had only been two computers and they had only had 40 minutes for lunch. He said that on Thursdays they had had to write reports about whatever they had done and what they had learnt. He confirmed that he had also completed a [Diploma]. He said that this had been after he had studied to be [an occupation]. He said that he had been away for a month and a half because of the operation and he had had to study double to make up for the lost time. He said that this six months had been very difficult for him. He said that because of his [condition] he had been sitting back a little bit from the computer when he had been [writing].
I put to [the applicant] that he was the one who had said that he had had a dream to become a Jehovah’s Witness. [The applicant] said that sometimes you could not do everything you dreamed of. He said that there had been things which had made him delay this. I put to him that he said that he had then attended the Kingdom Hall for one year and he had stopped attending immediately his application for a protection visa had been refused. [The applicant] said that he had been shocked by the rejection of his application to the point that he had not known what to do. He said that he had been depressed and he had needed to see a psychologist but he had not been able to do so because he had not had access to Medicare. He said that he had been put on a waiting list to see a psychologist at [an organisation]. He said that he had also been taking medication for other problems so he had been living a difficult life. He said that he had been afraid that they would see him going to the Jehovah’s Witnesses. He said that he had feared that he would be sent back to Lebanon and that he would be killed. He said that he had been crying all the time and he had not known what to do. He said that he had gone to see [a welfare agency] and they had advised him to go and see a psychologist but he had told them that he could not afford it. He said that they had told him that he should go to Medicare and then to his general practitioner who would refer him to a psychologist.
I referred to the fact that (as mentioned above) [the applicant]’s representative had produced to the Tribunal a letter from the psychologist whom he had seen. [The applicant] said that he was still going and the psychologist had told him that he should go back to his general practitioner to get another referral. I noted that the psychologist had said in her letter that she had only seen him three times, first in October and November 2015 and then not for a year until November 2016. [The applicant] said that after he had gone there nothing had been happening and he had still been afraid all the time. He said that his Medicare had expired. He said that he had memory loss because of all the stress he had gone through and Medicare had not sent him a letter reminding him that it had expired. He said that he had not been able to pay for the psychologist because it was expensive. He said that it had taken him a while to get Medicare again. He said that he had not known from 2011 to 2015 that he could see a psychologist through Medicare. He said that if the [welfare agency] had not told him about this he would not have known. He repeated that life was very difficult for him and he said that he felt that no one was understanding him. He said that [due to his condition] this was not easy.
I noted that the letter which [the applicant]’s representative had produced from the psychologist was dated [November] 2016 and said that he was suffering from [conditions]. I indicated that I also accepted that he had had an [operation] as he had mentioned. I put to him that these sorts of problems in themselves did not really bring him within the complementary protection criterion. I put to him that I would have to be satisfied that the Government of Lebanon arbitrarily restricted medical care for people in his situation or that he would be arbitrarily refused medical care for some reason. I put to him that the provisions which talked about pain and suffering and extreme humiliation all required an intention on the part of the people inflicting that. [The applicant] said that you had to pay for all medical treatment in Lebanon, it was very expensive and it was very difficult to get to. I put to him that the point I had been trying to make was that this sort of thing did not bring him within the complementary protection criterion. The fact that it was not free, as it was in Australia, was not really relevant. [The applicant] said that he knew this.
[The applicant] said that he had lots of stresses from different sides and this was one of them. He said that he was also thinking why was this happening to him. He said that the thing which had given him most stress was when he had been rejected in 2011. He repeated that he had feared that he would be sent back to Lebanon and that he would be killed. He said that nobody else had been in this situation and nobody else had been feeling what he had been feeling. He said that he felt now that he was living in a jungle. He said that with everything he wanted to do he would be faced with a problem. He said that when he had been studying with [Mr A] he had been happy. He said that back in Lebanon it was not as easy as you might think. There were lots of issues going on, especially in the government. He said that just the day before the hearing a problem had arisen in his area of Lebanon and three people had been killed. He said that the cause had been hunting. He said that if he had been there he would have been killed as well and they would have said that he had been in that conflict. He said that there were many people dying in Lebanon and nobody cared.
[The applicant] said that there was one other thing which he wanted to explain. He said that the Lebanese Government did not get involved in religion: they left it to the religious people to deal with. He said that they would kill him because they might be afraid that he might convert their children and they would follow him, especially their daughters because they had their daughters wearing the hijab. He said that it would cause a big issue if the children followed him and believed what he believed. He said that the best solution for them would be to kill him so that they would get rid of that problem. He said that he would like to mention one more thing. He said that he was asking for that dream to continue. He said that he was not forcing anyone to come with him or to follow him and do the same as him. He said that he was doing it for himself because this was how he felt more comfortable and happy. He said that he would like to continue with this but Immigration was against him, he did not know why.
I put to [the applicant] that, as we had discussed, although he had said that he had this dream to become a Jehovah’s Witness, he had not done anything for two years after he had come to Australia. He had only contacted the Jehovah’s Witnesses around the same time at which he had applied for a protection visa. He had attended the Kingdom Hall and had studied the Bible for around one year. As soon as his application had been rejected he had stopped going there and he had not been there since. I put to him that, as I had indicated, I might find that he had only pretended to be interested in becoming a Jehovah’s Witness. I might not accept that he had actually been threatened by anyone in his family or by his relatives because he had supposedly become a Jehovah’s Witness. I put to him that I might not accept that there was a real risk that he would be killed if he went back to Lebanon.
[The applicant] said that he understood. He repeated that because he had been living with his siblings he had been unable to go out without their permission. He said that he had not had the freedom, he had been new in Australia, he had been unable to go anywhere and he had known nothing. He had not known how to get to them. He asked if it was possible for a person who was new to the country to go straightaway on the second day to seek the Jehovah’s Witnesses when you did not know where they were or how to get around. He said that the Jehovah’s Witnesses in Lebanon were not legal and they were not loved by the Muslims or the Christians. He said that his representative would be able to explain this more.
[The applicant]’s representative said that he wished to reiterate [the applicant]’s evidence that for the first two years after he had arrived in Australia he had been restricted and his freedom had been curtailed by the fact that he had been living with his siblings. He said that he would like the Tribunal to take into account [the applicant]’s mental health and the effect which this had had. He said that he believed that a further psychologist’s report would be provided to the Tribunal within a week. He said that the third issue was the perception in the community of [the applicant]’s association with the Jehovah’s Witnesses. He said that, if the Tribunal accepted that there was a perception that [the applicant] was a Jehovah’s Witness regardless of the fact that he had not been attending regularly in the last couple of years, this perception might in itself cause him concern because arising from that perception if he were returned to Lebanon he might face the possibility of significant harm. [The applicant]’s representative said that he had prepared a written submission which he would email to the Tribunal after the hearing. He said that he asked the Tribunal to consider that at the time of the previous hearing [the applicant]’s application had been supported by [Mr A] who had given evidence to the Tribunal to verify the fact that in his view [the applicant] was genuine in his attempts to study and convert to the Jehovah’s Witness faith.
[The applicant] said that from now on he would be seeing the psychologist regularly because he needed someone to talk to. I asked him if there was anything further he wanted to say before I closed the hearing. He said that he had had a very difficult life here and he would like me to take all this into consideration.
Post-hearing submissions

In a submission dated 16 November 2016 received by the Tribunal after the hearing [the applicant]’s representatives made no reference to the evidence taken at the hearing or to the issues raised at the hearing. They referred to country information about the situation of Jehovah’s Witnesses in Lebanon and they submitted that [the applicant] would experience restrictions with respect to his religious practice in Lebanon and that if he were to practise his religion in the way he wished he would face a real chance of being threatened, verbally abused and even physically assaulted. They submitted that the only way for him to be able to avoid serious harm would be to refrain from undertaking or to limit proselytising to such a significant degree that it would render his adherence to the core tenets of his faith untenable.
[The applicant]’s representatives submitted that the Government of Lebanon discriminated against Jehovah’s Witnesses by denying them legal recognition and that the laws of Lebanon denied [the applicant] the capacity to manifest his religion freely in teaching, practice, worship and observance. They produced a decision of the Tribunal (differently constituted), in relation to another of their clients, [case number], dated [in] August 2016, in which relevantly the Tribunal accepted that the applicant had been baptised as a Jehovah’s Witness and had been participating in meetings and door to door preaching in Australia for a number of years. The Tribunal noted that the applicant’s evidence in that regard was supported by evidence from an elder of the Jehovah’s Witness congregation attended by the applicant.
On 22 November 2016 [the applicant]’s representatives produced a further letter from the psychologist which repeats what the psychologist said in her letter dated [in] November 2016 and recites at greater length [the applicant]’s claims. The psychologist appears to have taken the view that she should act as [the applicant]’s advocate although he has a properly qualified representative and she cast no further light on his psychological state which is the only matter on which she is qualified to express a professional opinion. She said that: ‘[the applicant] was attending a Kingdom Hall at in [sic] [location] but realised there were too many people in the area who may recognise him now he attends a different Hall in a suburb further away.’ She also said that: ‘[The applicant] is currently having difficulty studying his religion as he is so anxious he is unable to concentrate. [The applicant] is also unable to complete his tasks of going door to door to speak to people about the religion as he may be recognised.’ She concluded her letter by saying that [the applicant] was currently terrified for his life.
[The applicant]’s ability to participate in the hearing
As I indicated to [the applicant], I accept that, as stated by the psychologist in her letters, he is suffering from [conditions]. I have taken the letters from the psychologist into account in assessing whether [the applicant] had the ability to take part in the hearing before me on 16 November 2016. While [the applicant] referred in the course of the hearing to his memory loss because of all the stress he had gone through, he exhibited no difficulty in responding to my questions and he addressed the issues which I raised with him in a way which indicated that he understood those issues. Having taken the letters from the psychologist into account, I consider that [the applicant] was able to participate effectively in the hearing before me on 16 November 2016.
Conclusions
As referred to above, in her letter dated [in] November 2016 the psychologist conveyed that [the applicant] was still attending a Kingdom Hall and that he was only being prevented from going door to door to speak to people about his religion because of his fear that he might be recognised. In his evidence at the hearing before me, however, [the applicant] said that he had stopped attending the Kingdom Hall two months after the hearing before the Tribunal in July 2011, after he had received the Tribunal’s decision. He denied saying that he seldom attended the Kingdom Hall, as stated in his statutory declaration made on 29 January 2015. I prefer [the applicant]’s direct evidence given to the Tribunal to whatever he may have told the psychologist. I find on the basis of his evidence at the hearing that he stopped attending the Kingdom Hall in around September 2011 and that he has had no association with the Jehovah’s Witnesses since that time. I do not accept that, as the psychologist said, he is only being prevented from going door to door to speak to people about his religion because of his fear that he may be recognised nor that he is currently having difficulty studying his religion as he is so anxious he is unable to concentrate.
I find on the evidence before me that (as referred to in the decision under review) [the applicant] only began attending a Kingdom Hall and studying the Bible with [Mr A] in July 2010.[2] As I put to [the applicant], this was around the same time as he first applied for a protection visa, [in] July 2010. [The applicant] has advanced a multiplicity of excuses to explain why, despite saying that it was his dream to become a Jehovah’s Witness, he did nothing about this until after he had completed his studies in Australia in July 2010. At the hearing before me he attempted to suggest that he had been a virtual prisoner in his siblings’ homes but, as I put to him, he was going out to study and to work. He referred to the fact that he was new to Australia, that he had not had access to a computer until he had bought his own laptop, that he had not had car, and that he had needed the help of his siblings to get to train stations and to explain everything. However he was clearly able to use public transport and he conceded that he had had access to computers for his studies. He said at one point that his English had been weak so he had been unable to go out and ask for himself but after I put to him that he had been studying here he said that it had not been his English language ability that had prevented him from joining the Jehovah’s Witnesses at first: he said that it had been the fact that he had been living with his siblings and the way of life he had been living that had prevented him.
[2] As referred to above, [Mr A], who attended the Departmental interview in relation to [the applicant]’s first application in February 2011 but not the hearing before the Tribunal in July 2011, said that [the applicant] had first talked to someone at the Kingdom Hall at [suburb] in late May or early June 2010 and he said in his letter to the Tribunal dated 3 July 2011 that [the applicant] had been attending meetings and that they had been studying the Bible together since July 2010.
Having regard to the fact that [the applicant] only began attending a Kingdom Hall and studying the Bible with [Mr A] in July 2010, and that he stopped attending the Kingdom Hall two months after the hearing before the Refugee Review Tribunal in July 2011, after he had received the Tribunal’s decision, I do not accept that it was his dream to become a Jehovah’s Witness, as he has claimed. At the hearing before me [the applicant]’s representative asked me to consider that at the time of the hearing before the Refugee Review Tribunal in July 2011 [the applicant]’s application had been supported by [Mr A] who had given evidence to the Tribunal to verify the fact that in his view [the applicant] was genuine in his attempts to study and convert to the Jehovah’s Witness faith. However I consider that this evidence must be viewed in light of [the applicant]’s own evidence that he stopped attending the Kingdom Hall two months later. [The applicant] has said that he did so because he feared that he would be sent back to Lebanon and he has also referred to his mental health and other health issues following the rejection of his application. However his fear of returning to Lebanon is based on his involvement with the Jehovah’s Witnesses in Australia. I consider that, if his desire to become involved in the Jehovah’s Witnesses was sufficiently strong to conquer his fear in July 2010, when he made his application for a protection visa, he would presumably have persisted in attending the Kingdom Hall and in practising his claimed religion even after the refusal of his application was affirmed by the Refugee Review Tribunal in August 2011.
As I put to [the applicant], I consider that his brief involvement with the Jehovah’s Witnesses indicates that he only pretended to be interested in becoming a Jehovah’s Witness because he saw this as a pathway to obtaining a protection visa. He said at the hearing before me that he had not been baptised and I do not accept on the evidence before me that he has converted to the Jehovah’s Witness religion as he has claimed. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm because he will seek to practise the Jehovah’s Witness religion or because, in particular, he will go door to door proselytising, nor that he will only be prevented from practising the Jehovah’s Witness religion because of his fear of suffering significant harm as a result. I do not accept [the applicant]’s evidence that he has received threats from his parents, other members of his family or the community more generally because of any perception that he has converted to the Jehovah’s Witness religion. I do not accept on the evidence before me 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 killed or that he will otherwise suffer significant harm because of his claimed conversion to the Jehovah’s Witness religion.
As I indicated to [the applicant], I accept that, as stated in the letters from the psychologist which were produced before and after the hearing, he is suffering from [conditions]. I also accept that he has had an [operation] in [Australia]. He said at the hearing before me that you had to pay for all medical treatment in Lebanon, it was very expensive and it was very difficult to get to. However, as I put to him, the fact that there is no equivalent of Medicare in Lebanon is not the issue for the purposes of the complementary protection criterion. I do not accept on the evidence before me that the Government of Lebanon will arbitrarily refuse [the applicant] medical care nor that it has arbitrarily restricted care for people in his situation such that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Lebanon, there is a real risk that he will be arbitrarily deprived of his life. The definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act 1958 require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. I do not accept on the evidence before me that there is the requisite intention to inflict pain or suffering or to cause extreme humiliation to people in [the applicant]’s situation. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act as a result of his medical problems.
At the hearing before the Refugee Review Tribunal in July 2011 [the applicant] said that the political and social situation in Lebanon was confused and at the hearing before me he said that at the time he had completed his studies in Australia in 2010 there had been lots of trouble and friction in Lebanon. He said that the situation in Lebanon, politically and socially, had not encouraged him to go back. He said that it had not been safe for him to go back: it had not been safe for the normal people there. He said subsequently that back in Lebanon it was not as easy as you might think. There were lots of issues going on, especially in the government. He said that just the day before the hearing a problem had arisen in his area of Lebanon and three people had been killed. He said that the cause had been hunting. He said that if he had been there he would have been killed as well and they would have said that he had been in that conflict. He said that there were many people dying in Lebanon and nobody cared. I consider that the risks associated with the general situation in Lebanon are ones faced by the population of the country generally and not by [the applicant] personally and that they are therefore excluded from the complementary protection criterion in accordance with paragraph 36(2B)(c) of the Migration Act.
Having regard to my findings of fact above, therefore, I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer ‘significant harm’ as defined in subsection 36(2A) of the Migration Act.
CONCLUSIONS
As explained above, I am only able to consider [the applicant]’s application under the complementary protection criterion. For the reasons given above I am not satisfied on the evidence before me that he is a person in respect of whom Australia has protection obligations under that criterion. I therefore find that he does not satisfy the criterion set out in paragraph 36(2)(aa) of the Migration Act for a protection visa. There is no suggestion that he 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. It follows that he is also unable to satisfy the criterion set out in paragraph 36(2)(b) or (c) of the Act. As he does not satisfy the criteria for a protection visa, he cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non citizen in Australia who is a member of the same family unit as a non citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

[2017] AATA 1036

25 May 2017

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Natural Justice