1503224 (Refugee)

[2016] AATA 4609

1503224 (Refugee) [2016] AATA 4609 (27 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503224

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:27 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 October 2016 at 10:36am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Lebanon, applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] February 2015.

3. The applicant appeared before the Tribunal on 22 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s [daughter].   The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   CLAIMS AND EVIDENCE

   Visa Application

4. The applicant claimed that a bomb blast in Beirut [in] November 2013 damaged her [relative]’s business, also resulting in the injury of [her relative].  [In] October 2013 more than [number] people were killed and [number] injured due to a bomb blast in their area.  If she returns to Lebanon she will be harmed.

5. She was married at [age] and her husband married another woman when she was [age].  He lived with the other woman and came over to her house and got angry at and was violent towards her.  Her husband would also not provide financial support to her for their children.

6. Civil war has escalated in Lebanon and her parents have left Beirut and gone to the south.  The south is no safer and because her identity documents say they were born in Beirut it will be complicated to live in the south for political reasons.  Her daughter supports her as her father doesn’t give the applicant any money.  If she returns to Lebanon without her son then her husband will harm her.  She has been divorced from her husband.

   Tribunal Hearing

7. The applicant claimed that if she returned to Lebanon her husband would ill-treat her because her husband had taken the house and thrown her luggage outside.  He came to Australia last March and she found that he had sold the land that belonged to her and kept the money.  She now had nowhere to go as her house was gone.  Her husband had kicked her when she was pregnant trying to abort the baby, as he was married at the time.

8. If she returned to Lebanon she would have nowhere to live and he had written to her that if she returned to Lebanon she didn’t know what could happen to her.  In Australia she was protected.  He could physically harm her because he has a new life and she was valueless to him.  Her [in-laws] could harm her for the same reason.

9. Asked about her marital status she claimed she was married in 1982/3 and had [children].  When her older one was [age] her husband divorced her and re-married.  Asked when she divorced she said she couldn’t remember; it was put to her that she had had a long time to remember dates prior to the hearing.  She claimed she was with a psychologist because of her poor memory.  Asked what decade she was divorced in, she claimed that she was divorced in 1999.  She claimed her husband wanted to give her the divorce papers because he wanted to please his new wife.  She said her husband was already married when this occurred and then said he was married in 2001 or 2002.  She agreed that her husband had divorced her before he married his new wife.

10. In 2013 her husband said they should re-marry and they got married and divorced in 2013; he divorced his other wife first.  She wanted to keep the family together but then learnt he wanted to get back to his other wife and the problems escalated until they divorced.  She lived with her husband until they divorced in 1999 and after this she lived in the same house with his family because she had nowhere else to live.  She lived in this house until 2013 when she came to Australia.  His mother-in-law also lived in the house at the time; his [siblings] visited as it was the family house.

11. Between 1999 and 2013 she saw her husband when he visited his mother. Sometimes he was absent for a week.  She couldn’t remember when asked how often she would see him because of their problems and she was afraid he would take their children.  He was physically violent to her a lot between 1999 and 2013.  He treated her less than a servant and would abuse her in front of his sisters, and bring his dirty washing for her to wash.  Asked again if he was physically violent over this period she said he was.  She was asked why she re-married him and said that she thought she would get her rights when he was in Australia.

12. In Lebanon the house they lived in [location].   Her parents-in-law owned it for around 50 years.  Asked how she survived financially over this time she said she wasn’t working and her [children] here provided her money.  Her husband provided very little to her son, barely enough to cover their food and expenses.  Asked how she received the money, she claimed she received USD [amount] a month.  In the beginning he would give the money to his mother who was the one preparing the food.  He gave this amount sporadically, not every month.

13. She was asked why her husband was physically violent to her and she said that it was to demean her and to please his new wife.  Once she became pregnant it came to the attention of his second wife.  It was put to her that it wasn’t her wife at the time.  She said she was the wife, and was asked when he married his second wife.  She then said she thought it was 1995 but her head was full or problems and made it hard to remember.  She then said it may be 1991. 

14. Asked if she had family in Lebanon, she said that her parents were there and lived in the south in [Town 1].  She had never lived with them previously and couldn’t if she returned because the [in-law] lived near there.  Asked again, she claimed the conditions in [Town 1] were miserable and her [in-laws] would make life miserable for her.  They lived in the same area as her parents. 

15. Asked if they had done anything to her previously, she claimed that they told her they would take her children after her husband’s second marriage and wanted her out of the house.  She claimed she hadn’t mentioned this previously because no one had asked her about it.  Her parents had moved to [Town 1] around 10 years previously.  She had never lived with them in [Town 1] nor in Beirut.  She said that she would prefer to kill herself than return to Lebanon.

16. The applicant’s daughter was called as a witness and was asked what she wished to say.  She reiterated that her father had married another woman and had humiliated her mother and emotionally and physically abused her.  She claimed Lebanon is not a safe country and one could be walking and a bomb could happen.  She was asked to specify what she meant as the member told her that he travelled to Lebanon regularly and had taken his children there on holiday last December so it wasn’t like the ‘Wild West’ as she described.

17. She claimed her [sibling]’s friend had been on the street and had been killed last year; there was no president and her husband would refuse to let her take her own child. At any minute AIS could throw a bomb.  She claimed her mother had nowhere to go and her father had taken her mother’s land from her – she would harm herself.  She claimed that she would not be able to visit her mother.

18. Asked when the land was sold, she claimed her father did something with the house but she didn’t know if it had been sold.  Her father was in Australia for a holiday and told them he had sold the land.  Her mother asked him how he could sell land that wasn’t in her own name.  In Lebanon land had been subdivided.  She was asked how the land could be sold not in his name.  Asked whose name it was in, she claimed her mother bought the land but they were waiting for land to be subdivided. She was again asked if the land was in her mother’s name and she claimed she hadn’t gone into it that deeply.

19. The applicant was told about s 424AA and it was put to her that in a visa application she had made at the Australian Embassy in Beirut in October 2011 she was interviewed by embassy staff and that she had told them that, regarding the financial support her husband provided they sued to talk regularly when her husband was in Australia because they had separated amicably.  Her husband used to send her [money] and she cashed her monthly retirement pension (USD [amount]/month).  She had said at hearing that he gave his mother USD [amount]/month sporadically for the family’s upkeep and that this inconsistency could go to issues of her credibility.

20. She claimed that she knew her husband sent money to his [sibling] and this morning she had sworn not to tell lies.  She was asked why she had told something different to the embassy in Beirut and she claimed that when she was coming to Australia her husband had an intention to get back together and he told her what to say.  It was also put to her that she had told the embassy in the same interview that she loved her husband despite his actions, and they continued to live together in the same house.  Today she had claimed he was emotionally and physically abusive and they didn’t live together.  This could call into question the nature of their relationship.  She again claimed that he had told her what to say in order to facilitate them getting together again.

21. It was also put to her under s 424AA that in June 2010 she had come to the counter at the embassy looking for a partner migration booklet, was asked where her husband and she replied that she lived with the applicant and the other wife.  She agreed when asked that they all lived together.  This was also inconsistent with what she had told the Tribunal today which could again call into question her credibility.  She said that she again had been told by her husband what to say so she could go visit her kids and wanted to get back what he had taken from her.

22. Under 424AA it was also put that she was asked where her parents lived during her DIBP interview and she had said that her parents lived with her, they had lived in the south but the roads were bad so they asked to live with her.  This may indicate that either she didn’t live with her mother-in-law or that the relationship with them was so good that all the parents could live together.  She also said the parents moved back south after the applicant came to Australia whereas she had said they had move to live there 10 years before.  This again could call into question her credibility as a witness.

23. She claimed her father had been in an accident and was in danger and had come to her and stayed with her in Beirut before returning south when she came to Australia.  Her father had [medical conditions].  She had not mentioned this previously as no one had asked her.  Under s 424A she was asked by DIBP when her parents came to live with her and had simply said that the roads were bad and had asked to live with her but she had never mentioned an accident, [or] other medical issues.  Simply that the roads were bad.  She claimed that her head was full of troubles and was saying everything to unite with her children.

24. Again under s 424AA she had been asked where she lived in Beirut and said she lived in her house in Beirut which was an old rental that she only paid USD 200 a year for.  Here she had said she lived with her mother-in-law in her husband’s family house that they had owned for 50 years.  She claimed that in the beginning they paid rent monthly and over time the house was old and had reduced a great deal over time.

25. She was asked why her husband would continue to hassle her given he had a new wife and had thrown all of her stuff out of the house.  She claimed if she asked for her property back she would be in big trouble.  She had no property to go to.  She was asked why his [siblings] in [Town 1] would cause her problems if there had been no problems when living in their mother’s house. 

26. She claimed she had been abused a lot living with her mother-in-law and had to put up with this according to Islamic law as her husband could take her children away.  She was asked why he let her come to Australia with his son.  She claimed that he didn’t know as her son had an Australian passport.  Her husband had been in Australia since she had been here but she had never spoken to him while he was here. She then said that she had asked him about the land last March when he came to Australia.

27. She mentioned that her son was in school in Australia and she had brought him up.  [A few] of his [siblings] were here but they were married; she had been suffering and wanted to be with her family.  She claimed she was traumatised and psychologically disturbed and before the plane landed she would kill herself.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The applicant arrived in Australia on a [temporary] visa [in] June 2013 and applied for a protection visa [in] November 2013.  I have sighted her passport and accept that she is a citizen of Lebanon. 

29. 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.

30. 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 that she fabricated her claim in order to be granted a protection visa.

31. I have taken into account the medical reports regarding her symptoms of anxiety and fear provided by a psychologist and GP however lend them little weight.  The GP’s letter supports a positive protection outcome, both accept her claim of domestic violence which the Tribunal has not, and neither is aware of the inconsistencies in the applicant’s claims.  There is nothing in either letter that would explain the inconsistencies being due to a medical reason other than an unwillingness to return to Lebanon.

    Relationship with Husband

32. I do not accept that the applicant has suffered domestic violence at the hands of her husband.  While I accept that she and her husband had divorced and re-married, in the absence of any documentary evidence such as divorce papers and registration, as well as her vague and inconsistent answers I am not willing to make a finding on the dates on which they occurred, nor do I think the exact dates are relevant to the issue at hand.

33. What is central to the application is her relationship with her husband and her evidence in this regard was inconsistent throughout the hearing.  In her protection visa application she claimed that her husband would not provide financial support to her for their children.  When asked during the hearing how he supported them she claimed that her husband contributed USD [amount] per month to the upkeep of her and their son but did so sporadically and through her mother-in-law.  During an interview with the Australian Embassy in Beirut in 2011 however, she told her case officer that after they were divorced and her ex-husband came to Australia he continued to send money to the children, used to call her because they separated amicably, used to send her money through [a financial institution] or his [sibling] and that she used to cash his monthly retirement pension of USD [amount].    

34. During the same interview at the embassy she had claimed that she loved her husband despite his actions (the divorce) and that she and her husband continued to live together in their house.  During an earlier interview at the embassy when she was requesting a partner migration booklet (and not present with her husband) she claimed that she lived with her husband and with her husband’s second wife.  This was inconsistent with her claims made during the Tribunal hearing that her husband emotionally and physically abused her, and that she lived with her mother-in-law and only saw her husband when he came to see his mother.

35. I do not accept that the inconsistencies were because her husband had told her what to say under a promise of being reunited.  On the first occasion the applicant was not present with her husband.  On the second occasion the applicant was interviewed separate from her husband and given quite a lengthy series of questions so it is unlikely that her husband would have been able to predict what to say for each question in advance.  There were also a number of other inconsistencies throughout her evidence that could not be explained by ‘coaching’ from her husband.

36. She had also claimed during her Departmental interview that her parents lived with her because the roads were too bad and they moved in with her from [Town 1] in the south.  During the hearing she claimed that she had never lived with them either in Beirut or [Town 1].  I don’t accept that her father had [medical conditions] [as] she had never mentioned this fact previously despite claiming that it occurred while she was in Lebanon and that they had come to Beirut as a result of it.  I do not accept that she had failed to raise this previously because she hadn’t been asked about it. 

37. There were opportunities to do so previously but she had never offered up this information, which it is reasonable to believe she would have given that it may have formed a reason as to why she couldn’t live with her parents in the south.  She had only said in her visa application that it was difficult to live in the south for political reasons, it was no safer and her identity documents said she was born in Beirut.

38. Because I do not accept that the applicant has suffered domestic violence at the hands of her husband I also do not accept that there is a real chance that she will suffer harm at the hands of her [in-laws].  Given that the applicant claimed she had lived in her mother-in-law’s house for many years it is reasonable to believe that she did so with the consent of the family and hence relations between her and her husband (or ex-husband) and his family are amicable.

39. Because relations are amicable I do not accept that the applicant’s possessions have been thrown out of the house or that she would have nowhere to live if she returned to Lebanon.  Nor do I accept that the applicant’s land has been sold by her husband.  This claim was never made during her application, and it was vague when made by her and her daughter.  It lacks credibility that a parcel of land to which she held title could be sold by someone who did not hold the title, nor was any documentary evidence provided in support of such a claim.

    Other Issues

40. Because of the applicant’s lack of credibility I do not accept that a bomb blast [in] November 2013 damaged her [relative]’s business and injured her [relative].  No documentary evidence to support the damage or injury claims has been presented and it relies totally on the applicant’s oral claim.  Given I have found she lacks credibility as a witness I do not accept that such damage and injury was caused.

41. Nor do I accept that she would be harmed because of generalised violence if she returned to Lebanon.  She has no political or other profile that would make her likely to be targeted, and country information indicates that incidents of violence have decreased in response to successful interventions by the Lebanese authorities and cooperation between traditionally opposing actors.[1]  This accords with the Member’s personal experiences having been a regular visitor to the country over many years.  He most recently visited the country in April 2016 and before that in December 2015 on holiday with his family including [children].

    [1] DFAT Country Information Report – Lebanon, 18 December 2015, p 8.

1. 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

2. Because I do not accept that the applicant has suffered domestic violence, had her possessions thrown out of the house, would have nowhere to live on return to Lebanon, had her land sold from under her, or would be at risk from her in-laws or from generalised violence, 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.

3. 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

4. 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).

5. 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).

6. 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

7. 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 – to the extent that they are relevant to the decision under consideration.