1504418 (Refugee)

[2017] AATA 1191

1504418 (Refugee) [2017] AATA 1191 (17 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504418

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Mara Moustafine

DATE:17 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2017 at 1:02pm

CATCHWORDS

Refugee – Protection visa – Lebanon – Social group – Divorced women – Religion – Sunni Muslim – De-facto relationship – Child out of wedlock – Credibility – Inconsistent and implausible claims - Contrived to achieve  migration outcome – Delay in application

LEGISLATION

Migration Act 1958, ss. 5(1), 36(2)(a), (aa), (b), or (c),

65, 499
Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor

(1997) 191 CLR 559

Yao-Jing Li v MIMA

(1997) 74 FCR 275

Prasad v MJEA

(1985) 6 FCR 155

Luu & Anor v Renevier

(1989) 91 ALR 39

Randhawa v MIEA

(1994) 52 FCR 43

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).

   Background

2. The applicant, who claims to be a citizen of Lebanon, entered Australia [in] June 2010 as the holder of a [temporary] visa. She lodged an application for an [permanent] visa [in] November 2010 and this applicant was refused [in] June 2013. The applicant lodged an appeal of this decision on 7 April 2014 but the Migration Review Tribunal (MRT) found that it had no jurisdiction as the application was not lodged in the prescribed timeframe.

3. The applied to Department of Immigration for a Protection visa [in] July 2014.

   CLAIMS AND EVIDENCE

   Application to the Department 

4. According to her Protection visa application form, the applicant was born in [Suburb 1], Tripoli, Lebanon on [date], is Muslim by religion; speaks, reads and writes Arabic; completed [number] years of education; has never worked or previously travelled outside Lebanon. She stated that she was married [in] April 2013; and identified as family members her mother and [sibling], who were both resident in Australia; and no relatives outside Australia. 

5. In her written application, the applicant claimed that, if she returns to Lebanon, as a young Sunni woman, she would be seriously harmed by Alawi, as well as Sunni Muslims, because her area of [Suburb 1] in Tripoli continued to face daily attacks over the conflict in Syria; and Lebanese authorities could not provide protection as the sectarian violence in Tripoli was ‘out of control’.

6. The applicant attended an interview with the delegate [in] November 2014, a summary of which is contained in the delegate’s decision record, which the applicant provided to the Tribunal for the purposes of the review. The Tribunal has listened to the recording of the interview and is satisfied that the summary set out in the decision record is accurate.

7. At the interview, the applicant told the Department that she was no longer married and claimed that she was seeking protection in Australia because she did not have any family to support her in Lebanon and that her life ‘would be hell’ as she was a divorced woman. She initially said that she had no family left in Lebanon, but later said her father was still there, but that she did not know his whereabouts.

8. A delegate of the Minister for Immigration refused to grant the applicant a Protection visa [in] March 2015 because he was not satisfied that the applicant faced a real chance of persecution for a Convention reason in Lebanon or that the applicant had a real risk of being subjected to significant harm should she be removed from Australia to Lebanon.

   Application for review

9. [In] March 2015, the applicant applied to the Tribunal for a review of that decision. The applicant was represented in relation to the review by her registered migration agent.

10. A copy of the delegate’s decision record was provided to the Tribunal for the purpose of the review and the applicant is taken to be on notice of the delegate’s findings and reasons.

11. On 1 May and 9 May 2017, ahead of her Tribunal hearing, the applicant’s representative submitted documents in support of her claims, including statutory declarations from her and her current partner, [name] (DOB[date]), court documents relating to her ex-husband, [Mr A], and the birth certificate of their [Child 1] (DOB [date]).

12. In her statutory declaration the applicant stated that she was claiming persecution on the grounds of religion and membership of the particular social group of abused Lebanese Sunni Muslim women and also feared significant harm, namely being subjected to torture, cruel inhuman treatment or punishment or degrading treatment or punishment and/or arbitrary deprivation of life. The applicant stated that she continued to be ‘a practicing member’ of the Muslim faith and elaborated on ‘new circumstances’ that had arisen since the determination of her case by the Department. In particular, in June 2016 she had entered into a relationship with her current de facto partner, a Lebanese Sunni Muslim and Australia citizen, whom she met in March 2016 and began cohabiting with on a permanent basis after the birth of their [Child 2] in [year].

13. The applicant claimed that if she returns to Lebanon, she will be abused and ostracised because this de facto relationship as it is not acceptable socially, or under Islam to have sexual relations with a man out of wedlock. She claimed that her father and relatives considered that they were ‘obliged to harm her in order to uphold the religious and social expectations’ and that ‘some of her relatives’ had threatened to physically harm her if she returns to Lebanon. However, the applicant claimed she was not ready to commit to another marital relationship ‘at this stage’ due to the mental and physical abuse she had endured in her relationship with her ex-husband. She also stated that her ex-husband would not consent for her to travel overseas as he feared he might never see his [Child 1] again if the applicant returned to Lebanon.

14. In his statutory declaration, the applicant’s partner corroborated her claims. 

15. The applicant appeared before the Tribunal on 10 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from her partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

16. At the request of her representative, the Tribunal allowed the applicant additional time after the hearing to provide further information, which was received on 11 May 2017. This included a statutory declaration and certified copies of her marriage and divorce certificates with [Mr A] and the birth certificate for her [Child 2] with [name] (DOB [date])

17. The issues in this review are whether the applicant’s claims are credible and whether there is a real chance that if she returns to Lebanon she will be persecuted for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Lebanon, there is a real risk that she will suffer significant harm.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. A summary of the relevant law is set out at Attachment A.

19. On the basis of her Lebanese passport presented at hearing and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Lebanon and that Lebanon is the receiving country for the purposes of s.36(2)(aa).  The Tribunal accepts that she is a Sunni Muslim from Tripoli.

20. For reasons outlined below the Tribunal did not find that the applicant to be a truthful and credible witness about the reasons she fears harm in Lebanon. In reaching this conclusion, the Tribunal has had regard to inconsistencies in her evidence, the implausible nature of key aspects of her claims and other reasons detailed below. In the Tribunal’s view, the applicant’s claims for protection have been contrived to achieve a migration outcome.

21. The applicant’s claims for protection shifted significantly over the course of her Protection visa assessment process. Her initial claim in her Protection visa application form, lodged in July 2014, was that she feared serious harm from both Alawi and Sunni Muslims because of ongoing sectarian violence in her neighborhood of [Suburb 1]. At her Department interview in November 2014, however, she claimed it would be the Alawis who would harm her because she was a Sunni Muslim. She also introduced the new claims that she needed protection because she had no family in Lebanon to support her and that her ‘life would be hell’ as she was now a divorced woman. By contrast, the applicant’s claims to the Tribunal centred on her fear of harm from her family in Lebanon over her unmarried relationship with her current partner and having his child out of wedlock.

    Sectarian violence in Tripoli  

22. The Tribunal accepts that the uprising in Syria in 2011 exacerbated sectarian tensions in Tripoli, especially between the Alawite enclave of Jabal Mohsen and the Sunni neighborhood of Bab al Tabbeneh, with clashes continuing through 2013 and into 2014. As discussed with the applicant at hearing, country information from independent sources, including those noted in the Department’s decision, as well as reports of the Department of Foreign Affairs and Trade (DFAT)[1], indicate that a security plan implemented by the Lebanese Armed Forces in Tripoli in April 2014 has led to a notable reduction in the number of sectarian incidents and greater degree of stability in these neighborhoods. The Tribunal accepts that, having lived in close proximity to the conflict, the applicant may have a general fear of war, even though she and her family had not suffered direct harm in the past. However, the Tribunal is not satisfied that this amounts to serious harm, or that there is a real chance that, if she now returns to Lebanon, the applicant will face serious harm from either Sunni or Alawi Muslims as a result of sectarian violence in Tripoli.

    Harm by applicant’s family in Lebanon over her de facto partner and having a child out of wedlock

    [1] Department of Foreign Affairs and Trade, DFAT Country Information Report: Lebanon, 18 December 2015

23. In her evidence at hearing, the applicant spoke in vague generalities about not being ‘safe’ if she returned to Lebanon because Islam did not allow being in a relationship but unmarried, that ‘whoever’ received her, would harm her and the authorities would not do anything about it. However, when asked to be more specific, the applicant identified her family as the only source of serious harm she feared in Lebanon. She said that while she might face ‘inhumane treatment’ from ‘other people’, which she elaborated meant that they would ‘talk bad’ to her, she was sure she would face harm from her family. Asked who in the family would harm her, the applicant responded vaguely: ‘maybe dad, maybe his family, maybe mum’s family’. Asked how she knew anyone would harm her, given her evidence that she did not to have any contact with her father, the applicant said her [relatives] in Australia told her it was a bad idea to go back as she would face harm, that her mother told her the same and that everyone told her to get married. The applicant later added that, when they found out she was pregnant, even her [other relatives] in Australia told her that, while they could not hurt her here, if she was in Lebanon, they would kill her.

24. As discussed with the applicant, the Tribunal has serious concerns about the veracity of these claims in light of her earlier evidence to the Department and Tribunal regarding the absence of any family in Lebanon. In her Protection visa application form, the applicant only identified two family members, her mother and a [sibling], both resident in Australia and made no mention of any relatives outside Australia, including her father. Further, at her interview with the Department, the applicant’s claim for protection was based on her not having any family to support her in Lebanon.

    Further, in letters she sent to the MRT on 4 and 22 April 2014 in the context of her appeal on her [permanent] visa application, the applicant  stated ‘my whole family has …migrated to Australia’ and ‘I absolutely have no family members overseas’. The Tribunal put to this information to the applicant under s.424AA of the Act, noting that the inconsistencies in her evidence raised doubts about her truthfulness and general credibility. The applicant responded verbally that the letters had been written by her ex-husband as she could not write English. In a statutory declaration submitted after the hearing, the applicant further claimed that she had relied on her ex-spouse and an adviser, [name], to ensure that all the information in her protection visa application was true and correct as she could not read or write English at that time. She was not aware that her father’s particulars were excluded. She claimed she had instructed [adviser] that ‘I have no one in Lebanon – meaning that I do not have a good relationship with my father’ and had no knowledge of his whereabouts in Lebanon; as she had advised the Department when specifically asked about him during the interview. 

25. The Tribunal does not consider this to be a satisfactory explanation. As discussed with the applicant at hearing, whoever wrote the letters to the MRT, they were written in her name. Moreover, she had signed a declaration at the end of her Protection visa application stating that ‘the information [she has] supplied or caused to be supplied on or with this form is complete, correct and up-to-date in every detail’. As recorded in the delegate’s decision, she initially told the Department at interview that she no longer had any family members living in Lebanon. In view of the above, the Tribunal is not satisfied that the applicant has any family in Lebanon, including her father, nor that she faces serious harm from her family or anyone else in Lebanon over her relationship with her current partner.

26. Further, the Tribunal has serious reservations about the veracity of the applicant’s underlying claim that she has not married her current de facto partner, with whom she has had a child out of wedlock, because she is not ready to commit to another marital relationship ‘at this stage’ due to the mental and physical abuse she endured in her relationship with her ex-husband.

27. On the basis of court and police documents submitted by the applicant, the Tribunal accepts that she has suffered domestic violence from her previous husband, [Mr A]. The Tribunal considers that it would be totally understandable that a woman who has endured such mental and physical abuse might be cautious about a subsequent involvement with and commitment to another man. This was not the case with the applicant. According to her statutory declaration [in] May 2017, she ‘entered into a relationship’ with her current partner in June 2016, [number] months after meeting him. This was several months before her divorce from her former husband took effect [in] October 2016. On [date], the applicant gave birth to her new partner’s child, with all the legal obligations that this entails. 

28. Having shown herself to be undeterred by her previous experience from entering into a relationship with another man and bearing his child, the Tribunal finds incongruous the applicant’s claimed reluctance to marry her current partner, especially in light of the pragmatic approach to marriage which she has demonstrated since her arrival in Australia. According to her evidence at hearing, within a couple of months of her arrival on a [temporary] visa in June 2010, the applicant decided not to proceed with that marriage. [In] November 2010, she applied for a [permanent] visa with another man, [Mr B]. She said they ‘didn’t have a wedding, just a gathering with family’ or ‘religious wedding’ but that this marriage only lasted for about a month as [Mr B] did not want to continue with her. In April 2013, while awaiting the outcome of her [permanent] visa application with [Mr B], which was refused in June 2013, the applicant married [Mr A]. At her Protection visa interview in November 2014, the applicant told the Department that she was no longer married to [Mr A], had lost his child and described herself as a ‘divorced’ woman, on which she based some of her claims for protection. However, she subsequently told the Tribunal that this was a ‘single talaq divorce’, which allowed her to resume the relationship within three months; and that she only separated from [Mr A] in February 2015, at which time she was [number] months pregnant with their [Child 1]. Their divorce took effect [in] October 2016.

29. As discussed with the applicant, the Tribunal also finds it implausible that, as self-described ‘practicing member’ of the Muslim faith, who prays, worships Allah and ‘observes the principles of Islam’, the applicant would enter into a sexual relationship outside marriage and have a child out of wedlock. For reasons outlined above, the Tribunal is not persuaded by the applicant’s response that, while she knew this was a sin, she was not ready to get married because of her previous experience with her ex-husband.

30. The applicant’s claims to the Department at her interview that her ‘life would be hell’ as she was a divorced woman are undermined by her subsequent evidence to the Tribunal that she was not, in fact, divorced from her then-husband until 2016. Moreover, the DFAT report cited in the delegate’s decision indicates that in general, divorced and single women can successfully take part in ordinary Lebanese life[2]. Nor is the Tribunal satisfied that the absence of family support for the applicant in Lebanon constitutes serious or significant harm as defined in the legislation.

    [2] Department of Foreign Affairs and Trade, DFAT Country Report: Lebanon, 25 February  2014

31. The Tribunal’s reservations about the genuineness of the applicant’s protection claims are compounded by her delay in lodging her protection visa application until four years after her arrival in Australia in June 2010 and her apparent disregard for Australian migration regulations. . As discussed with the applicant, notwithstanding that her relationship with the sponsor of her [permanent] visa, [Mr B], ended after one month, the applicant proceeded with this visa application and subsequently attempted to appeal the visa refusal at the MRT. It is the Tribunal’s view that she then applied for her protection visa in June 2014 as a means of achieving a migration outcome. The Tribunal finds disingenuous the applicant’s response that, if her sole purpose had been to achieve migration, she would have stayed with the first person until she got permanent residency.

32. Considered together, the reasons discussed above lead the Tribunal to conclude that the applicant has not been a truthful and credible witness. The totality of her evidence shows a propensity to fabricate claims and tailor her evidence in a manner that achieves her own purpose. The Tribunal, therefore, does not accept any of the applicant’s claims regarding her fear of harm in Lebanon. The Tribunal is not satisfied that if she returns to Lebanon the applicant is at risk of serious harm by Alawi or Sunni Muslims or as a result of sectarian violence in Tripoli. The Tribunal is not satisfied that the applicant has any family in Lebanon, including her father, nor that she faces serious or significant harm from her family or anyone else in Lebanon over her relationship with her current partner, having his child out of wedlock, being a divorced woman or for any other reason.

1. The Tribunal is not satisfied that, if she were to return to Lebanon, there is a real chance that the applicant will be subjected to serious harm for any Convention reason, including her religion or membership of the particular social group of abused Lebanese Sunni Muslim women, as claimed.

2. The Tribunal does 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 she will face significant harm in Lebanon, including being subjected to torture, cruel inhuman treatment or punishment or degrading treatment or punishment and/or arbitrary deprivation of life.

3. The Tribunal accepts that, should the applicant be faced with separation, temporary or permanent, from one or both of her children, this may cause her mental pain or suffering. However, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or 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 she 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.

   CONCLUSIONS

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.

   Mara Moustafine
   Member

   
   

   RELEVANT LAW

8. 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.

9. 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).

10. 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.

11. 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’).

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility