1505327 (Refugee)

[2016] AATA 4524

1505327 (Refugee) [2016] AATA 4524 (11 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505327

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:11 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 11 October 2016 at 7:51am

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 2014 and the delegate refused to grant the visa [in] March 2015.

3. The applicant appeared before the Tribunal on 19 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] ([official] [Organisation 1]), [Mr B] (friend) and [(applicant’s sister)]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   CLAIMS AND EVIDENCE

   PV Application

5. The applicant claimed that he was an Alawite born and raised in Tripoli.  His father was Sunni and his mother Alawite.  Since he was a child he was influenced by his maternal uncles and was influenced by them to adopt the Alawite faith.  All [his] maternal uncles live in Syria and support President Assad.  Everyone knew that he was Alawite and he was perceived as the regime’s supporter.

6. He actually did support Assad against terrorism and, even though he lived in Lebanon he couldn’t split himself from his people.  The events in Syria have brought attention on to him.  He was living in a Sunni part of Tripoli and was targeted and threatened with death because he supported Assad.  He was at one point approached by extremists with links to the militias in Syria.

7. In April 2013 he was driving in the suburb of [Suburb 1] returning home from work when a car followed him and suddenly opened fire and shot at him. He wasn’t hit and sped away from them.  He drove to Beirut and stayed in a hotel overnight.  He also called the number that had been ringing all the time while he had been driving; the person who answered was aggressive, knew his name and screamed at him and said ‘they’ would catch him and kill him.  He also said that if he reported anything to the police they would kill his family.

8. He was scared and the next day his wife and family joined him in Beirut by taxi.  He tried to maintain a low profile in Beirut but they found him again and attempted to assassinate him via a fatal car accident.  He fears going back to Lebanon because of the serious harm he will be subjected to because of his religion and political opinion.

   Tribunal Hearing

9. The applicant claimed that he would be killed by religious extremist groups because he was Alawite.  They could be Fatah al-Islam, Jabhat al-Nusra, Islamic State or other Salafists. This was his sole claim.

10. He claimed that he had been fired at in his car in Lebanon.  In April 2013 he was returning from Beirut at night and another car came up and opened fire at his car and then left – he had no idea who they were.  He had provided photos of his car with the bullet holes.  This occurred around [time] am.  He was at the beginning of Tripoli and there were no other cars around given the time.

11. He was on a road with three lanes each side and he was in the left hand lane and the other car came from the right lane, cut him off and began shooting.  Asked to clarify, he claimed they didn’t cut him off but sped up and fired.  He was asked to explain exactly what occurred and he claimed the other car was in the middle lane, then it sped up and they began shooting.  Asked for more detail he claimed it happened really quickly.  Pressed further he then claimed one person fired a machine gun from the back window.  He didn’t know how many were in the car.  They were perhaps five metres in front of him. 

12. They only fired once, and expended six or seven rounds.  He confirmed that the shooter was to his front right when they fired.  Asked why they didn’t just pull up parallel to him so the shooter could fire straight through the front passenger window of the applicant’s car.  He claimed he had no idea why it occurred this way.  Nothing had ever happened to him prior to this shooting.  Asked if he knew of any other Alawi who had been ambushed on that road traveling to Tripoli, he claimed he didn’t but it had occurred in other places.  Asked to confirm this, he claimed that it had but he couldn’t remember whether it was the middle of the night.

13. He was asked why he had been singled out and how they knew that the car coming in to Tripoli at [time] am was being driven by an Alawi.  He claimed that prior to this he had been threatened several times by telephone but hadn’t paid much attention to them.  The threats began around a month before the shooting.  They said that because he was an Alawite they had to kill him.  Asked how they would have known he was Alawi such as by practising his faith or having it on his ID card, he claimed that they knew him because some of his relatives (uncles, cousins) lived in Jabal Mohsen and he used to go there all the time.  His first [wife] was his cousin and she was Alawite but was registered as Shiite Ja’afari.  He was registered as Sunni.

14. Asked what religious denomination he was married under, he claimed that because he was Alawite he had to marry an Alawite.  He had been married twice; the first time to [his cousin].  The second time he was married to a Sunni and it was put to him that he had claimed that Alawites had to marry Alawites.  He claimed he fell in love with his wife and got married in a Sunni service.  When he was married the first time they were married as Alawites; the second time he was happy to marry for love.

15. The interpreter was asked to translate the divorce certificate that had been presented by the applicant and she said the applicant was described as Muslim and she was described as Shiite Ja’afari.  Asked if his wife was Shi‘a Ja’afari, he claimed that she was Alawite.  Not all Alawites are registered as Alawites in official documents; asked why this was the case, he claimed that some government departments didn’t care about registering people as their proper religion.  Some Alawites are registered as Shi’a or Shi’a Ja’afari.  Some were registered as Alawites but they were all mixed up together.

16. Asked why she would be described as Shi’a Ja’afari in particular given it meant Twelver Shi’a.  He knew her beliefs belonged to the Alawite faith.  It was put to him that his mother was described as Alawi on the document provided but his father was described as Muslim and was asked why there were differences.  He claimed they were registered according to the documents given to them.  It was put to him that he appeared to be a Sunni according to his documents, he married and divorced a Shi’a then married a Sunni woman in a Sunni ceremony.  This appeared to indicate that he was actually Sunni.

17. He claimed that his father was registered as a Sunni but he married his Alawite wife because he was actually Alawite himself.  Their registration documents actually showed them to be Sunni but they were Alawite.  He had considered himself to be Alawite from the time he knew the world around him and they visited their relatives in Syria and Jabal Mohsen.  Asked what age this was, he claimed it was around [age] years old.  He was now [age] years old. 

18. He was asked if he had ever tried to change his religion on his documents in the past [number] years to reflect his actual religious identity and he claimed that he hadn’t even thought about it as he was well known as Alawite as he didn’t see a need to do this on his documents.  He didn’t attend any mosque in Lebanon.  It was put to him that he had never attended mosque, his documents showed him to be Sunni, he had married a Shi’a and then a Sunni in a Sunni ceremony and was asked why he would be considered to be Alawite.    

19. He again claimed that he had been to his relatives in jabal Mohsen many times and he was well-known as an Alawite.  It was not necessary to be registered as an Alawite to be an Alawite.  His sister in Australia was registered as a Sunni but was married to an Alawite – she attended the [Organisation 2] when there were funerals for instance.

20. Regarding the shooting, after it occurred he was in shock and left via the first exit and returned to Beirut.  His house was in [Suburb 1] (the incident may have occurred on [date] April) but he went to stay with friends in Beirut after the shooting.  He stayed with his friends in Beirut, rarely went to Tripoli and was very concerned if he had to do so. He then came to Australia.

21. There had been another incident involving the car.  About a month before he came to Australia, he was going to see his family via a different route.  He noticed a car behind him coming closer and eventually it came to him and hit his car, causing his car to swerve until it hit the concrete barrier. This was [in] October 2013.  He called his wife and they picked him up and he returned to Beirut.  He and his family had been living in [Suburb 1] prior to the shooting but after the shooting his family went to his wife’s family also in [Suburb 1] and stayed there until he left Lebanon.  The applicant’s family house had been rented in May 2013 but his family had since returned to it.  He had been staying at his friend’s house in Beirut but couldn’t remember the address.

22. [Mr B] appeared as a witness [and] had known the applicant from a long time ago in Lebanon.  He claimed the applicant was Alawite as was his family.  The witness was Alawite and they prayed special prayers together and always went on Fridays to the mosque. He attended mosque with the applicant in Lebanon around five or six times.  When the applicant came to Jabal Mohsen they would go to prayers together.  It was put to him that the applicant had claimed he had never gone to mosque.

23. The applicant claimed they always prayed in a small group (halweh).  Asked if he knew of any documentary evidence that the applicant was Alawite and he claimed that he didn’t have any but he knew from talking to him about religious questions and his relatives were all Alawite.  Asked if he knew whether the applicant had married an Alawite he claimed the first one was but the second was Sunni.  Asked if he thought this was strange for an Alawite to marry a Sunni in a Sunni service, he claimed they had no authority to be married in their own religion.  Asked if it wouldn’t be better to register in a Shi’a court given the veneration of Imam Ali common to them, he claimed that he had to agree to marry in a Sunni court because of the attitude of his wife’s family.

24. Asked if they went to regular prayers he claimed they were together all the time and went to pray at the [Organisation 2] all the time.  Asked how often, he claimed they went whenever there were religious festivals; they didn’t go every Friday.  Asked why they didn’t he claimed because they both worked.  They would go to the [organisation] around two or three times a month to pray.

25. The applicant’s sister appeared as a witness and wanted to speak about the suffering that people of their religion experienced.  She was asked whether she knew of any particulars of her brother’s circumstances in Lebanon first hand.  He couldn’t work because of his religion and if there was a war he would be killed.

26. The applicant was asked about the photo with bullet holes in the car.  It was put to him that there was a bullet hole in the front left of the door and a graze mark on the left hand side rear panel of the car and yet he had claimed to have been shot at from the front right.  The bullet hole looked like an entry hole not an exit hole. Shots could have been put in the car apart from the attack or it could have been manufactured in some way.  He claimed that the left hand bullet came from the inside of the car and exited there and that the graze on the left rear came from a bullet from the inside that pushed the metal from inside to out, it wasn’t a graze on the outside.

27. He was advised about s 424AA and it was put to him that on his [temporary] visa application he signed [in] June 2014 (and which he claimed was true and correct) he claimed that his wife and children were living at an address in Beirut while he was in Australia.  This was inconsistent with what he had said in his statement and during his DIBP interview where he had claimed that his wife and family went to live with his parents-in-law in [Suburb 1].  He claimed that he had said only he lived in Beirut and his response to Question 20 of his application was read back to him which specifically applied to his family.  He again claimed he had answered only in relation to himself.

28. He was asked why he couldn’t relocate to Beirut and said that Alawites would be targeted no matter where they were.  His children were in school at [Suburb 1].  It was put to him that he was safe while he lived in Beirut, and he claimed it wasn’t as he was always feeling scared there.  He was asked whether he had any country information that indicated that Alawites were targeted in Beirut as the Tribunal was unaware of this.  He claimed he heard the news from Lebanon that made him scared.  He was asked if he had copies of any of that information.  He claimed that extremists wanted to eradicate all Alawites and Shi’a.

29. Under s 424AA it was also put to him that his witness had said he had gone with the applicant to prayers five or six times in Lebanon while he had claimed he never went to mosque and never mentioned that he ever went to group prayers.  This was inconsistent.  He claimed that he was asked if he went to mosque and they went to a closed group as part of their religion and he couldn’t talk further about his religion.  He claimed his witness was referring to this as it was the way they practised their religion but they kept the religion secret inside.

30. He was also advised about s 91R(3) and it was put to him that he may have been attending Alawite functions in Australia to establish a profile as an Alawite whereas his documentation would indicate he was Sunni.  He claimed the [Organisation 2] would never accept a Sunni masquerading as an Alawite.

31. [Mr A] a representative from the [Organisation 1] was telephoned as a witness and he claimed he knew that applicant.  The applicant was from the Alawite as he knew everyone in the Alawite community.  He came when there was a funeral or a festival; he was the community leader but had no religious credentials.  If he met anyone from Lebanon and they told him his location he would know the person’s religion.  The applicant was from [Suburb 1] and he knew the applicant’s story about being adopted. 

32. Asked how he knew the applicant’s background, he claimed that he was told the story by the applicant and checked it with his own father and mother.  He had not checked any documentation of the applicant to determine his religious identity – as soon as he knew the area the person was from he knew their religion.    

33. The applicant claimed that Alawites would know each other because of certain secret aspects of the religion that only they knew.  It was put to him that the Tribunal had to establish his credibility to determine whether he was saying things were secret because they were actually so or not.  The Tribunal had concerns as to why he was picked out for specific attacks and why he couldn’t relocate.  He claimed there were armed groups and one could either be for them or against them.  He was asked why he couldn’t be neutral – he claimed one couldn’t be like this.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

34. The applicant arrived in Australia on a [temporary] visa [in] November 2014 and applied for a protection visa [in] November 2014.  I have sighted his passport and accept that Lebanon is the applicant’s country of nationality.  The applicant is a [age] year old married male from Tripoli.   

35. 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. 

36. I found the applicant’s evidence regarding his claims to be vague and to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his claims in order to be granted a protection visa.

    Religious Identity

37. Although the applicant has claimed to be a member of the Alawi faith I find that he is actually a Sunni Muslim.  His family registration document (folio 38) shows him to be Sunni, his marriage certificate (folio 66) to his current wife shows he was married in a Sunni legal court and he states that she is also Sunni.  I accept that his mother was of the Alawi faith but note also that his father was Sunni (folio 74). 

38. I do not accept that the Lebanese authorities did not care about registering people as their proper religion, hence the misrepresentation on his documentation.  Country information[1] indicates that Lebanese citizens are free to change their religion on their identity cards and registration documentation and, given the applicant claimed he connected with his true Alawite identity when he was [age], he had [number] years in which he could have changed his registration documents to reflect his claimed religious identity yet failed to do so. 

    [1] >

    I do not accept that he failed to do so because he was well known as an Alawite and there was no need to change the documentation.  It is reasonable to believe that someone who felt as passionately about his faith as he claimed would have wanted it recorded on his personal documentation.

39. I have taken into account the various pieces of evidence he provided in support of his claim however lend them little weight, and lend greater weight to the Lebanese registration documents and the lack of credibility of the applicant.  The letter from the Alawite [organisation] in Tripoli (folio 72) could have been produced on any home computer.  It also states that the applicant is known by [an official] of the [organisation] in person yet the applicant stated that he never went to mosque in Lebanon and felt Alawite because he visited his relatives in Jabal Mohsen.  There was no mention made by him of having meetings with any senior members of the Alawite community in Lebanon.

40. I have also taken into account the letter from [Mr C], [an official] of [an organisation] (sic) who wrote that the applicant was a member of the community in Australia, as well as the testimony of [Mr A] [an official] of the [Organisation 1].  [Mr A] had no religious credentials and accepted the applicant’s claim without checking any of his documentation and had a rather haphazard way of authenticating one’s ‘Alawiteness’ – knowing the area they were from in Lebanon and in the applicant’s case asking [Mr A]’s parents.  [Mr C] was not called as a witness and there was no indication as to what he based his identification of the applicant as an Alawi on.

41. I have also taken into account the letter from [name] (folio 44) who supports the applicant’s claim to be Alawi.  He claimed that the applicant was an honest individual whereas I have found him to lack credibility, and refers to rumours about the applicant ‘being associated with the Sunni faith’ without mentioning the fact that the applicant’s registration documents show him to be Sunni and the fact he was married to a Sunni woman overseen by a Sunni cleric which would indicate the issue of his religious identity to be about more than simply rumours.

1. Further, I have taken into account the evidence of [Mr B] who claimed that he and the applicant had prayed together five or six times in Lebanon.  This is inconsistent with what the applicant himself had said, claiming that he had never gone to mosque, and making no claim that he engaged in group prayers elsewhere either in the company of [Mr B] or not.  It is reasonable to believe that if the applicant had undertaken these group prayers he would have made mention of them at some stage during his claim.

2. While it is plausible that the applicant has attended some Alawite community and religious ceremonies since being in Australia, I find that these have been deliberate and targeted with the sole purpose of establishing an Alawite religious profile.  As I advised the applicant during the interview, s.91R(3) requires me to disregard this conduct in determining whether the applicant has a well-founded fear of persecution if I found that it was carried out for the sole purpose of strengthening her refugee claim.

   Attacked in his car

3. Given I do not accept that the applicant is Alawite it follows that he was never targeted because of this religious identity, that he had been threatened by name during a phone call r warned not to tell the police or his family would be hurt.  This finding is supported by the implausibility of his claims in this regard.  Despite no evidence to support his claim that any other Alawite in Lebanon had ever been ambushed on the road between Beirut and Tripoli, this happened to the applicant twice within the space of six months.

4. The manner in which he was attacked are also implausible.  Firstly a car sped past him at [time] without any other cars on the road and opened fire on him, then six months later using an alternate route he had a car bump into him from behind.  It makes no sense why a vehicle with a ‘machine gun’ in it would choose to fire from such a strange position whilst moving when they could easily have forced him off the road or otherwise made him stationary and then execute him. 

5. Similarly, the fact that he was found on the secondary road as well as at [time] on the first occasion would indicate that his vehicle and his movements were well known and hence he could have been attacked at any stage with a great deal more certainty of killing him than either of the amateurish incidents exhibited.  It also lacks credibility that so much effort would be put into targeting someone with such a low profile and who had never been targeted before.

6. I have taken into account the letter (folio 13) from the mayor saying that the applicant was targeted however I lend it little weight.  Not only does it claim that the applicant’s house was shot at (a claim not made by the applicant himself), country information indicates that letters from mayors are not normally considered reliable sources of information.[2]   I have also taken into account the photos (folios 2-11) of a vehicle with bullet holes in it and also one that had been severely damaged in an accident.

   [2] DFAT Lebanon Country Information Report 28 February 2014, p 25.

7. I lend them little weight given they have no date/time stamp so it is impossible to know when they were taken and the damage to the left-hand side of the vehicle appears inconsistent with the claim he was shot at from the front right – I am not satisfied that the damage is the result of bullets traveling through the vehicle.

   Other Issues

8. I do not accept that the applicant was or would be perceived to be a supporter of the Assad regime.  To begin with I have found the applicant to be Sunni, not Alawite and therefore much less likely to support the Assad regime.  He also made no claim during the hearing that he was perceived in this way or that he had been threatened or attracted adverse attention because of it. It is reasonable to believe that this would have formed a significant element of his claim were it true; I also note that none of the Alawite community support letters mentioned anything about the applicant’s pro-Assad political opinion.

9. The applicant was also inconsistent in his account of his family’s whereabouts and hence his ability to relocate away from Tripoli.  Although he claimed that his family had remained living in [Suburb 1] (at his parents-in-law and then their own home), in his [temporary] visa application he claimed that while he was in Australia all of his family lived in Beirut at his home address.

10. 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

11. Although I have disregarded the applicant’s attendance at Alawite community events in Sydney for the purposes of the applicant’s refugee claims, I have had regard to them in assessing her claims relating to s.36(2)(aa).  Because I do not accept that the applicant is Alawite or has any genuine interest in the faith, or that anyone in Lebanon would perceive him to be Alawite, that he was, is or would be perceived to be an Assad supporter or that he has been targeted by any group in Lebanon for any reason 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.

12. 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 Iran, 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

13. 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).

14. 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).

15. 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

16. 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.