1506898 (Refugee)
[2018] AATA 2889
•20 July 2018
1506898 (Refugee) [2018] AATA 2889 (20 July 2018)
DECISION RECORD
DIVISION: Migration & Refugee Division
CASE NUMBER: 1506898
COUNTRY OF REFERENCE: Lebanon
MEMBER: Joseph Lindsay
DATE: 20 July 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 July 2018 at 1:11pm
CATCHWORDS
Refugee – Protection visa – Lebanon – Complementary protection – Imputed political opinion – Imputed links with Fatah al Islam – Sale of item to terrorists – Unlawful imprisonment and torture in Roumieh Prison – Assassination attempt by Lebanese intelligence – Convicted in absentia of terrorism offences by Lebanese Judicial Council – Death penalty suspended – Fear of imprisonment and death penalty – Unable to pay for mental health services in Lebanon – Credibility issues – Inconsistent evidence – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H(1)(a), 5H(1)(b), 5J(1), 5J(2)-(6), 5K-LA, 36(2A) and (2B), 36(2)(a), (aa), (b) (c), 65, 499
Migration Amendment (Complementary Protection) Act 2011
Migration Regulations 1994, Schedule 2
CASES
Bakhtyar v MIMA [2001] FCA 947
MZAAJ v MIBP [2015] FCA 478
Selliah v MIMA [1999] FCA 615
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71Any 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
This is an application for review of a decision dated [May] 2015 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).
AUSTRALIA’S PROTECTION OBLIGATIONS – CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
This matter has an extensive background, and a brief summary of issues may assist the reader to understand what has happened to date.
The applicant first came to Australia in 2005 on a [temporary] visa (from [June] 2005 to [July] 2005) before then returning to Lebanon. The applicant returned to Australia some five years later ([in] May 2010) on a [second temporary] visa and has been in Australia since that time.
[In] May 2010 the applicant applied for a protection visa. [In] May 2011 the Department refused his application. On 2 June 2011 the applicant sought review of the Department’s decision by the then Refugee Review Tribunal. On 30 August 2011 the Tribunal affirmed the Department’s decision. [In] October 2011 the applicant then sought review of the Tribunal’s decision by the Federal Magistrates Court. [In] June 2012 the court ruled against the applicant and found that there was no jurisdictional error in the Tribunal’s decision of 30 August 2011 and dismissed the application. [In] July 2012, the applicant made a request for ministerial intervention under s.417 of the Act. [In] January 2013, the Minister declined to exercise that power in relation to the applicant.
It is important to note here that the decision has been made that the applicant is not a refugee under the Act. The applicant exercised his appeal rights in relation to that decision. However, the applicant was able to apply for complementary protection. On 24 March 2012, the provisions as detailed in s.36(2)(aa) of the Act came into force by virtue of the Migration Amendment (Complementary Protection) Act 2011. This meant that even though a decision had been made about the applicant’s claim in relation to his refugee status as detailed in s.36(2)(a) of the Act, he was able to make an application for a protection visa under complementary protection grounds in accordance with the newly introduced s.36(2)(aa) of the Act. This view was confirmed in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013). Accordingly, [in] November 2012 the applicant made a second application for a protection visa but this time it was for consideration in accordance with s.36(2)(aa) of the Act.
[In] May 2015, some two and a half years later, the delegate decided not to grant the applicant a protection visa. On 20 May 2015, the applicant applied for review of the delegate’s decision of 18 May 2015 to the Administrative Appeals Tribunal. On 29 September 2016, the applicant was invited to a hearing at the Tribunal. On 21 November 2016, the applicant had a hearing with then Member Chris Thwaites. It is noted that the applicant had two hearings with Member Thwaites – on 21 November 2016 and on 20 April 2017. However, Member Thwaites’ appointment as a member ceased in mid-2017. As a result, this matter was re-constituted to the author of this decision and the final hearing was held on 23 January 2018.
The author of this decision, the Tribunal, has given this matter very serious consideration and provides the following summary as to the reasons for the Tribunal’s decision.
The applicant’s claims were first made in 2010 when he claimed, in summary, that he was unlawfully jailed in Roumieh Prison in Lebanon from 2007 to 2009 due to his involvement with a terrorist organisation, Fatah al Islam. The applicant denied he was ever involved with Fatah al Islam, and claimed his only involvement with certain Fatah al Islam terrorists was that he sold them [an item] and because they did not pay him he tried to get his money from them for the [item]. The applicant claimed that he was tortured and mistreated by the Lebanese authorities for the two years he was in prison. The applicant then claimed that the Lebanese authorities released him without charge from prison in 2009, but claimed that shortly after he was the subject of an assassination attempt by members of Lebanese intelligence. On this basis, the applicant came to Australia in 2010 and applied for protection. In 2014 the applicant was convicted in absentia of terrorism offences by the Lebanese Judicial Council in 2014, some four years after he arrived in Australia. As a result of these convictions, the Lebanese Judicial Council gave him the death penalty but then also suspended that sentence. In 2017 the Tribunal was made aware that the applicant has additional criminal matters outstanding in Lebanon, although neither the Tribunal nor the applicant is aware of what those matters are. The applicant has claimed that if he goes back to Lebanon the death penalty will be carried out on him, and if that does not happen he will be put back in prison, a place where he said he was tortured for two years.
However, the Tribunal does not accept that the applicant was ever tortured whilst he was in Lebanon. The Tribunal does not accept that the Lebanese authorities caused the applicant any difficulty at all after his release from prison and does not accept that the applicant was ever the subject of an assassination attempt by the Lebanese authorities. The Tribunal also does not accept that there is a real risk that the death penalty will be carried out on him and does not accept that there is a real risk that he will be tortured or mistreated if he returns to Lebanon in the foreseeable future.
The Tribunal found the applicant’s claims that he was in Roumieh prison in particular, or that he was tortured or mistreated, not to be credible. The applicant was never able to provide specific and consistent information about Roumieh prison or of the alleged mistreatment he claimed he was subject to while he was there. The applicant’s evidence was so vague, evasive and non-specific that it did not convince the Tribunal that he himself has actually experienced what he claimed to have experienced. The applicant claimed to have depression and post-traumatic stress disorder as a result of his mistreatment in Roumieh prison, but provided no evidence from a medical practitioner that he ever was prescribed any anti-depressant or anti-anxiety medication. He provided no evidence of any ongoing psychological therapy apart from a report of one visit to a psychologist in 2010 and a report from a counsellor, a person who is not even a health practitioner, in 2018. Given that the applicant claimed to have endured such terrible treatment for two years, the dearth of information in support of such a claim is conspicuous by its absence. Indeed, the evidence pointed to the Lebanese authorities actually taking steps in favour of the applicant’s safety and well-being whilst he was in prison. Even after being imprisoned for two years, the applicant was freely able to leave Lebanon using his Lebanese passport. The applicant has already been tried and sentenced for the terrorism offences he committed. The applicant has already done his time in prison for these matters. His sentence of the death penalty has been suspended. The Tribunal is not aware of the Lebanese authorities putting any convicted terrorist to death. Indeed, the Lebanese authorities have not executed any person, let alone any convicted terrorists, for 14 years. There is a moratorium on the death penalty in Lebanon. There is no indication that the applicant has any further terrorism related matters to deal with if he returns to Lebanon. There is some indication that there are outstanding criminal matters if he returns to Lebanon. However, given that the Tribunal found in the course of its analysis that there was no torture or mistreatment of the applicant when he was in prison for the then alleged terrorism matters between 2007 and 2009, a time that so much mistreatment did in fact occur to others in Lebanese prisons at that time, and there was no mistreatment of him when he was in prison in 2005 for matters not related to terrorism, the Tribunal considers it to be unlikely that the Lebanese authorities would mistreat the applicant if he returned to Lebanon in the foreseeable future, especially for matters that do not appear to be as serious as terrorism related matters.
The consideration of evidence and reasons for the decision are detailed below.
Application for protection under complementary protection – s.36(2)(aa)
As indicated above, [in] November 2012 the applicant made a further application for a protection visa, for consideration in accordance with s.36(2)(aa) of the Act. As part of the application, the applicant provided a statutory declaration dated 18 May 2010 in relation to his claims for protection. None of the specific questions as to ‘Your Reasons for Claiming Protection’ on the form were expressly answered in the application form itself. The responses to questions 42 to 46 of the application form all state ‘please refer to attached statement’ being the statutory declaration. The statutory declaration states:
1. I make this statement with reference to my application for a protection visa and with reference to the United Nation Convention definition relating to the status of refugees.
2. I am claiming persecution on the Convention related grounds of Implied political beliefs.
3. I am a Lebanese national and have no other nationality or right to enter or reside in a third country.
4. I was born a Sunni Moslem and remain a committed member of my faith.
5. I was born on [date], at [a city in] Akkar, Lebanon.
6. I arrived in Australia [in] May 2010, on a [second temporary] visa.
7. I am currently married but do not have any children.
8. I come from a very conservative Sunni Muslim family.
9. My mother and [a number of] siblings reside in Lebanon. I also have [other] siblings who reside in [City 1] and are Australian citizens.
10. My usual occupation is [an occupation].
11. On [date] May 2007, I privately sold [an item] to a purchaser [Mr A]. He part paid me and assured me that he would pay the balance of the money within two days. On Sunday 20 May 2007, the conflict between Fateh El Islam and militants and the Lebanese army erupted at Nahr El Bared refugee camp.
12. On [date] May 2007, the purchaser did not come as he had promised to pay me the balance. I spent the rest of the day calling him on his cellular number, but there was no answer.
13. Later that day I was informed by a [named person], that [Mr A] had been arrested by the Lebanese intelligence and that his arrest was associated with the conflict at Nahr El Bared.
14. In the evening, I received a telephone call from the Lebanese intelligence who requested me to attend their Ashrafieh headquarters, situated in Asharafieh Beirut at 10.00am.
15. The following day I attended the intelligence headquarters as ordered. I was order to remain there the entire day, without being questioned. In the evening I was brought into an interview room where I was extensively questioned about my alleged association with [Mr A]. I informed them that I sold [an item] to him and that was the extent of my association. I also showed them documents evidencing the purchase, including a cheque.
16. I was released and I left the headquarters at approximately 11.00pm.
17. The following Saturday, I received a further telephone call from the Lebanese intelligence and again they ordering me to attend their headquarters at Ashrafieh.
18. I arrived there at approximately 6pm that same evening. I was questioned briefly and subsequently told that I will be spending the rest of the night locked up at the headquarters.
19. The next day, my eyes were blindfolded and extensive interrogation sessions began. I was interrogated for the next five days, with each interrogation session lasting approximately 3 hours. During each interrogation session my hands remained in handcuffs. They also placed a large piece of timber between my legs and hung me by my legs. I was beaten with a steel object. Electric shock were also be applied to my body in an effort to make me confess that I had some association with the militants.
20. After five days I was transferred to Rumiah prison and held there without charge for the next 24 months and one day. I was detained with other detainees who were convicted on terrorism charges.
21. I continue to suffer periodic interrogation and suffered gross human rights abuses such as torture, using such methods as electric shock and beaten with a steal chain. I was not permitted any access to medical attention. I was also not permitted access to legal representation nor were any charges brought against me.
22. The International Red Cross interviewed me on two separate occasions. They were extremely worried about my deteriorating health and made representations on my behalf, but all were in vain. The Members of the Red Cross who had interviewed me were [a named person] from Africa and [a named person] from Egypt.
23. I was seldom permitted visits from my family and during the initial period of 15 days I was not permitted any access to outside visitors.
24. I was released without charge and made to sign an undertaking that I would not discuss any aspects of my imprisonment with any third person, including my lawyers.
25. I was also warned that my activities would continue to be monitored.
26. An attempt was made on my life in September 2009, by members of the Lebanese intelligence. I was shot [whilst] entering my house at 1.00am.
27. I was transferred to hospital and was fortunate to have survived the shooting. I have scars [where] the bullet penetrated.
28. I reported the incident to the police. The police have not investigated the matter and I was advised by them to drop the matter altogether for my own safety.
29. My lawyer advised me to leave Lebanon as he feared that further attempts were likely to be made on my life.
30. Whilst in Lebanon I continued to fear for my safety as monitoring by the Lebanese intelligence continued. My life has been severally impacted upon by my imprisonment and subsequent attempt on my life. I was never formally charged and not compensated for my false imprisonment. I was warned not to tell anyone about my ordeal otherwise my life would be at grave risk.
31. I enclose herewith documentation evidencing my imprisonment, and the shooting incident. Also enclose herewith my Lebanese penal certificate which states that I have no convictions. I state that I have never had any association not supported any militant group or individual. I suffered imprisonment for a period exceeding 24 months and an attempt was made on my life following my release. If I return to Lebanon I believe there would be further attempts on my life or I may once again suffer further detention and gross human rights abuses.
32. I continue to be traumatised by my ordeal in prison and the attempt that was made on my life. I continue to have reoccurring nightmares and my general health has severally deteriorated. I am in urgent need of professional physiological treatment, which is something that I have been deprived off in Lebanon because I have been gagged by the intelligence (not to reveal any aspects of my experiences in prison and the torture and trauma which I suffered).
On 19 January 2015, the applicant’s representative wrote to the Department enclosing a copy of a document in Arabic together with a copy of what appeared to be an English translation of the document (not NAATI accredited). The document was described as a court order.
On 28 January 2015, the applicant’s representative sent an email to the delegate [indicating] that the applicant would attend an interview with the delegate. The applicant’s representative also indicated that the court document was a Lebanese criminal court document that indicated the applicant had been sentenced to death in absentia. The applicant’s representative also enclosed a signed consent document from the applicant for the Department to ‘examine the legitimacy of the documents or make relevant enquiries with the Lebanese authorities’. Also provided to the Department was a copy of a news article from the Daily Star dated 24 October 2014 with the title ‘Lebanon sentences 3 Fatah al-Islam suspects to death in abstentia’.
[In] May 2015, the delegate refused the applicant’s claim for a protection visa.
ASSESSMENT OF CLAIMS AND FINDINGS
Identity
The applicant’s claimed identity is [name deleted], born on [date] in the State of Lebanon, who claims to be a citizen of Lebanon.
In the Departmental file ([file number]) is a certified copy of the applicant’s passport (issued [in] 2007, passport number [deleted]). In addition, the applicant has provided a copy of his [Australian] driver’s licence to the Tribunal (number [deleted]), which expires [in] February 2027.
The Tribunal has taken into account the certified copy of the applicant’s passport and his driver’s licence. There is no information to suggest that the applicant has provided false information in relation to their identity. The Tribunal finds that the applicant is [name deleted] born on [date] in the State of Lebanon, and is a citizen of Lebanon.
Receiving country
The Tribunal has found that the applicant is a citizen of Lebanon and accordingly the Tribunal finds that Lebanon is his receiving country.
Protection in another country
The applicant has indicated that he does not have a current right to enter and reside in a country other than Lebanon. There is no information to suggest that the applicant has a right to enter and reside in another country other than Lebanon. The Tribunal finds that the applicant does not have a current right to enter and reside in a country other than Lebanon and, accordingly, the Tribunal finds that s.36(3) of the Act does not apply to the applicant.
Application to Administrative Appeals Tribunal
On 20 May 2015, the applicant applied for review of the delegate’s decision of [May] 2015 to the Tribunal.
On 29 September 2016, the applicant was invited to a hearing at the Tribunal.
On 21 November 2016, the applicant had a hearing with then Member Chris Thwaites. It is on this occasion that Member Thwaites undertook to have the 2014 court document verified.
Then on 5 December 2016, the applicant’s representative provided the full English translated copy of the 2014 court decision to the Tribunal. In addition, the applicant’s representative provided a document from Lebanese lawyer, [Mr B], dated [November] 2016. In the letter, [Mr B] indicated that he is the agent for the applicant in criminal proceedings before the Justice Council in relation to the judgment issued against the applicant in absentia under number [deleted] of 2014, dated [October] 2014. [Mr B] indicated that the applicant was ‘spent his execution’ and his sentence was suspended for almost two years and he was released on bail.
[In] February 2017, an email from ‘Senior Migration Officer – Integrity’ for the Department at the Australian Embassy in Beirut [was] forwarded to the Tribunal stating:
We contacted the Lebanese authorities (informally) today in relation to this matter and were advised that the client is adversely known to them and that the information in the report appears to be accurate. They advise further that the client has additional criminal matters pending and is known by a number of aliases in addition to the one he is using for the current matter. The Lebanese authorities advise caution in dealing with this client.
If you require anything further we will need to make a formal request. I expect the official response to take several months given past official dealings with host country authorities.
This email was put to the applicant during the hearing in 2017, and as a result of this email, Member Thwaites indicated he was prepared to accept that the 2014 court document was genuine.
After the 2018 hearing, the Tribunal sought to have the 2014 court document formally verified. As of 4 May 2018 and 1 June 2018, conflicting advice provided by the Department as to whether or not further information can be provided in regard to the 2014 court document has led the Tribunal to the view that no further information will be provided in the reasonably foreseeable future. Noting that it is about eight years since the time that the applicant first lodged his claim for protection, the Tribunal holds the view that a decision can be made on the information presently available to the Tribunal. Accordingly, the Tribunal accepts that the 2014 court document is genuine. The Tribunal accepts and finds that the applicant was convicted of terrorism offences by the Lebanese Judicial Council in 2014.
The Tribunal also accepts the information provided [Mr B] in his letter dated [November] 2016. The Tribunal accepts this information and has no reason to doubt the accuracy of this information. Accordingly, the Tribunal accepts and finds that the applicant was ‘spent his execution’ and was suspended for almost two years and then released on bail.
The 2014 court decision
Due to its significance the English translated 2014 court decision is detailed below. It is noted that 5 December 2016 was the first time that the full English translated copy of the 2014 court decision, translated by an accredited NAATI translator, was provided to the Tribunal. It is also noted that an English translated version of the first page of the 14 page court document was not provided. The remaining 13 pages of the court document state:
The Judicial Council, constituted of Judge [name deleted] by proxy, and judicial members [names deleted],
Upon conducting investigations and consultations, and after examining the following:
1. Decree No. [deleted] on [date 2007, by which the offence against the State national security which occurred on [date]/ 2007, at Nahr el-Bared, and which resulted in a number of soldiers and civilians deaths and casualties, was brought before the Council, in addition to all individuals who contributed to, encouraged or interfered in this offence in any capacity;
2. The decision of the Minister of Justice No. [deleted] on [date] 2007, which appointed judge [name deleted] as a judicial investigator in the case,
3. The indictment issued by the above mentioned judicial investigator on [date] 2012,
4. The decision made by the Judicial Council on [date] 2013 to split this case into thirty files in order to make it easier to reach judgement,
5. The other papers of the case;
Based on the indictment dated [date] 2012 and the prosecution paper presented by the Public Prosecution at the Court of Cassation before the Judicial Council under No. [deleted] on [date]/9/2012, the defendants were charged with:
1. [The applicant]: Mother's name [deleted], born in [year] in [a city], Lebanese, adversarially arrested on [date] 2007 and released on [date]/05/2009;
An arrest warrant was issued in his name and put into effect on [date] 2014 after being tried in absentia.
2. [Mr C]: Mother's name [deleted], born in [year] in Yarmouk in Damascus, a Palestinian Jordanian, known by "[Alias 1]", adversarially arrested on [date] 2011 and released on [date] 2012;
An arrest warrant was issued in his name and put into effect on [date] 2014 after being tried in absentia.
1. [Mr D]: Mother's name [deleted], born in [year] in [Syrian], known as "[Alias 2] and [Alias 3]", adversarially arrested on [date] 2011 and released on [date] 2012;
An arrest warrant was issued in his name and put into effect on [date] 2014 after being tried in absentia.
That they have recently, at the camp of Nahr el-Bared - in the North of Lebanon and outside it, engaged in conspiring against the State national security, a felony defined and punishable in Articles 270/271/339/316 of the Penal Code, in Arms Trade, a misdemeanour defined in Article 72 of the Arms Code and forgery and usage of forged material, a misdemeanour defined in Articles 463 and 470 of the Penal Code.
As a result of the trial in absentia
It was established that the accused [the applicant], [Mr C] and [Mr D], failed to appear before the Judicial Council despite being duly notified. The proceedings were conducted in absentia and arrest warrants were issued against them.
It was also established that the indictment, the claim of the Public Prosecution at the Court of Cassation, the preliminary and interrogative investigations and all the papers were read and provided for verbal public discussion.
It was established during the hearing held on [date] 2014, and in view of the changes to the Judicial Council panel, the whole case papers were read again, and provided for verbal public discussion.
The Public Prosecution at the Court of Cassation presented this case, and demanded the indictment of the above named accused on the charges of the alleged crimes. He also demanded the introduction of stricter penalties;
Accordingly
First: The Facts:
With respect to the accused [the applicant]:
Upon hearing the testimony of the accused [the applicant] before the Information Division pursuant to the record dated [date] 2007, he testified that he had a relationship with [Mr A] and his brother [Mr E]. The relation with [Mr A] was based on a loan he owed him and which his father [promised] to pay. He also testified that he provided weapons to Fatah El Islam and committed fraud. He added that he met the so-called [Mr E] in 2004 and was directed, upon the request of [Mr A] and [Mr F], to the so-called [named person] who resided in [a location], in order to sell him [products]; that was at the end of 2006. However, the transaction did not occur as the [product] was [fake]. He also testified that [Mr A] and himself, presented it to [an expert] and found that it was worthless. [Mr A] told him that he has fifty unused [pistols] and asked him to help with selling them to a person he knows in [a location], called [Mr G]. However, the deal did not go through as the two parties disagreed on the price and on how to transport the weapons to [the location]. [Mr A] asked him to mediate with [Mr G], in [the location], in order to purchase heavy [weapons]. However, the deal did not go through as [Mr G] needed time to get them from different sources. [Mr A] promised him a share in the profits when any deal was concluded. He added that [Mr A] asked him if he knew any passports forgers so he advised him that he knew the so-called [named person], known as "[Mr G]". He then asked [Mr A] for money in order to purchase the weapons for him from [the location], and he took passports from [Mr A] to get them forged after he contacted "[Mr G]" who assured him that he'll be able to forge them provided that he pays him an amount of [amount]AUD per passport. He added that he produced two [Country 1] passports and three [Country 2] passports with unknown identities to him, which he handed to [Mr A] in return for [an amount] for each passport. He also produced a Lebanese passport that he handed to [Mr F], who is also known as [Alias 4], in return for [an amount] in addition to two Lebanese passports that he handed to [Mr A] in return for[an amount] for each passport. He also tried to get two Lebanese passports for [Mr A] and received [an amount] as down payment but was not able to produce them. He also produced two forged driver licences in return for [an amount] per licence and a forged ID card which was of a bad quality, so he shredded it. He also brought [Mr E] a pistol with a silencer in return for [an amount] and stated that he obtained the weapon and the forged documents from "[Mr G]" who resides in [a location].
The so-called [named person], known as "[an alias]", testified that he sold his children's passports to [Mr E] in order to forge them and use them. He then made a complaint in which he claimed to have lost these passports; the ones that [the applicant] arranged to be forged based on [Mr A]'s request. On the other hand, the so-called [Mr F], known as "[Alias 1]", "[alias]" and "[Alias 4]", testified that he received a forged Lebanese passport from [the applicant] in return for [an amount] and upon being interrogated before the military investigation judge on [date]/06/2007, he withdrew his initial testimony, stating that he testified because he was hit and tortured, clarifying that he sold [Mr E] and [Mr A] [an item] in return for [amount] AUD which they paid for by cheque. However, it turned out to be a dud cheque, so he filed a lawsuit against them, unknown to him that they were members of Fatah El Islam. He then explained that the [Brothers] asked him to buy weapons for them; he agreed but they did not loan the money to him, so he did not get the weapons.
Upon his interrogation by the judicial investigator on [date] 2007, he testified that there is no truth in what has been attributed to him, and hence, withdrawing this initial testimony as well as the one he gave before the military investigation judge adding that he was subject to beatings. He clarified that he contacted [Mr E]'s family to ask them to settle the price of the [item] he sold to [Mr E]. He added that [Mr A] did not ask him to buy weapons and did not ask him to help sell the [product]; rather, he was present with him when he - i.e. [Mr A] - presented the matter to [Alias 4] and his family.
Concerning the accused [Mr C]:
Upon hearing his testimony during the initial investigation, it was found that he is known by [Alias 1]. On [date] 2011, he was deported along with [a named person] from [Country 3] after being arrested on [date] 2008 due to his relation with [Mr H] (his wife's uncle). He was later released and lived in [Country 3], but was rearrested in February 2010 and deported to Lebanon.
He stated that he travelled to [Country 3] after being accused in Syria of participating in al-Qazzaz explosions. After the conclusion of el-Bared battles, one of his [friends], [an age] year old Palestinian-Syrian of Yarmouk, whom he knew for 8 years, told him at Yarmouk camp in Syria that members of Fatah El Islam took refuge at the camp. So he accompanied him to EI-Naseem masjid where he met [Mr G] who asked him to help with finding accommodation. Indeed, he was able to find 4 apartments inside Yarmouk with the aid of [his Palestinian-Syrian friend] and paid 3 months worth of rent in advance after "[Mr G]" gave him [amount] SYP. He added that he met [Mr I], known as [Alias 5], [Mr J], known as [Alias 6], [Mr K], [Mr L], [Mr M] and [a named person]. He was not able to contact [Mr H] except through "[Mr G]". After 3 months, "[Mr G]" told him that "[Mr M]", "[a named person]" and [Mr H] fell into a trap set by the Syrian National Security [near] Damascus, and that their fate is now unknown. Hence, he helped [Mr G], [Alias 5], [Mr K] and [Mr L] to move their belongings from the apartment they were staying in. Afterwards the explosions of al-Qazzaz took place. As a result, the Syrian National Security raided an apartment, that is still being built, that belonged to him and that no one knew its whereabouts except for [Alias 5] whom he heard has been arrested for attempting to rob a shop.
He added that, in [Country 3], he saw on the [media] [Mr I], known as [Alias 5], who confessed to being involved in al-Qazzaz explosion (Palestine Branch). Hence, he called [Mr G] and communicated with [Mr J] and introduced him to [Mr D] who bought 3 [Country 3] phone lines and 4 [Country 4] and [Country 5] passports. He gave him money and the phone number of a person to drive him from Beirut airport to [Location 1]. He went to [Location 1] and stayed with [Mr N], [a named person] and [Mr J] and gave them the consignment. He then went back to [Country 3] where he stayed for a little while. He wanted afterwards to return to [Location 1] and to get military training in order to carry an operation at Golan against the Israeli enemy according to his testimony. He also added that [Mr H] asked him to recruit members for Fatah El Islam in Syria; he was able to recruit 50 members.
Upon being interrogated by the judicial investigator, he denied all the allegations against him and confirmed part of the testimony he gave at the initial investigation. He clarified that he is not a member of Fatah El Islam, and that in the year 1988 he was a member of the Popular Front party (Jabhah al-Sha'biyyah) and received a training course in Jabal Terbol. He left the Popular Front party one year after and he is no longer a member of any organisation. He added that during the first four to five days of Nahr el-Bared battles, humanitarian organisations were providing the camp with supplies and aids and would bring them either to the main street or the sea street since the camp was made out of narrow streets. He would, along with the inhabitants, carry the items inside the camp where they would distribute them among themselves. He did not distribute any rations or aids to any members of Fatah El Islam. When the rations stopped, he started taking food from abandoned houses and shops. He also denied that [a named person] came and asked him to guide him through the narrow streets of Nahr el-Bared camp to avoid the firing. He instead testified that Fatah El Islam fighters would pass near them heavily armed accompanied with people from the camp who showed them the way to the narrow streets and ways inside the camp. He stressed that he did not contribute in the fighting nor held any military grade machine guns, yet, he took a K-7 machine gun from his uncle's home to protect his belongings and never took it out; he left it at home.
Concerning the accused [Mr D]
Upon hearing the testimony of the accused [Mr D], known as [Alias 2] and [Alias 3] at the preliminary investigation, he denied all the allegations against him. He then testified that he was a member of the Muslim League in [Country 3]; a legal registered league. He was in custody at Roumieh prison since [date]/06/2009. He came to Lebanon as a transit way station in order to go to Syria and not to [Location 1]. He denied that he went to [Location 1] in order to receive weapon training in preparation for Golan operation. He added that he lived in [Country 3] and that he took from [a named person] a consignment that he handed to [Mr O] and [Alias 6] at [Location 1]. He learnt that the consignment had money and mobile phones and did not include forged [Country 5] and [Country 4] passports. He also denied knowing whether these mobile phones had any Sims. He said that he entered Lebanon twice in a legal manner and that he tried to break out of Roumieh jail along with [another person] who managed to break free successfully.
Upon being interrogated by the judicial investigator, he denied all the allegations against him. He testified that he did not kill anyone and did not get involved with Fatah El Islam group. He said that he lived in [Country 3], and that he took a consignment from [Mr C] in [Country 3] to give to [Mr N], i.e. [Mr O], and to [Mr P] in [Location 1]. He denied the testimony of [Mr C] that he came to Lebanon to get training in [Location 1]. He said that he does not know anyone in Lebanon to train with them. He also said that he handed [Mr N] and [Mr P] the mobile phones and the money but no passports. He denied bringing [Country 5] passports and a [Country 4] passport, and stressed that he doesn't have any relation with Fatah El Islam and is not connected to them in any manner. He said that he does not know [Mr N] and [Mr P], and that [Mr C] asked him to take a consignment to them, nothing else.
Second: The Evidence: The following events were confirmed:
1. By the Prosecutor General,
2. By the preliminary and initial investigations,
3. By the fact that the accused escaped,
4. By the overall investigation papers;
Third: By Law:
Concerning the accused [the applicant]
As established by the aforementioned facts which were supported by the aforementioned evidence, the accused [the applicant] was in contact with the terrorist organisation "Fatah El Islam" and met with members, leaders and key figures of the aforementioned group. He also attempted to sell [a product] on behalf of [Mr A] and [Mr E], both of whom were members of the aforementioned organisation.
And WHEREAS it was established that the accused [the applicant] actions were in contribution to the criminal and terrorist activities carried by Fatah El Islam, which fall under penalty of felony in accordance with Article 4 read together with Articles 2 and 3 of the law of 11/01/1958, a specific provision of Article 316 of the Penal Code that the accused has been charged with, therefore need to be excluded as well as excluding Articles 270 and 271 of the Penal Code as they do not constitute a legal law to a specific crime.
And WHEREAS the aforementioned accused was involved in the forgery of Lebanese ID and passports on behalf of the so-called [Mr A] of Fatah El Islam, which falls under penalty of felony in accordance with Article 463/219 of the Penal Code. Moreover, his actions with respect to being involved in forging the Drivers licenses falls under penalty of felony in accordance with Article 464/219 of the Penal Code, hence, shall be charged with these two felonies.
And WHEREAS there isn't enough evidence that the aforementioned accused has used the services of the forger, he shall be found not guilty of the felonies raised under Articles 463/454 and 464/454. And WHEREAS the accused engaged in the provision of various weaponry on behalf of the terrorist group Fatah El Islam, which falls under penalty of felony in accordance with Article 72 Weapons, he shall be found guilty accordingly.
Concerning the accused [Mr C]
As established by the aforementioned facts, the accused [Mr C] has been in contact with the terrorist group "Fatah El Islam", met with members, leaders and key figures of the mentioned group, helped them secure four apartments in Yarmouk camp and recruited SO members on behalf of Fatah El Islam in Syria.
And WHEREAS the accused [Mr C] actions were in contribution to the criminal and terrorist activities carried by Fatah El Islam, which fall under penalty of felony in accordance with Article 4 read together with Articles 2 and 3 of the law of 11/01/1958 but not under the provisions of Articles 316, 270 & 271 of the Penal Code as they do not constitute a legal law to a specific crime.
And WHEREAS the aforementioned accused was involved in the forgery of passports, which falls under penalty of felony in accordance with Article 463/219 of the Penal Code, he shall be found guilty accordingly.
And WHEREAS there isn't enough evidence that the aforementioned accused has used the services of the forger, he shall be found not guilty of the felonies raised under Articles 463/454 of the Penal Code.
And WHEREAS the accused was involved in carrying unlicensed weapon, which falls under penalty of felony in accordance with Article 72 Weapons, he shall be found guilty accordingly.
Concerning the accused [Mr D]
As established by the aforementioned facts, the accused [Mr D] has been in contact with the terrorist group "Fatah El Islam", met with members, leaders and key figures of the mentioned group, helped them by providing them with money and other stuff, in contribution to the criminal and terrorist activities carried by Fatah El Islam, which fall under penalty of felony in accordance with Article 4 read together with Articles 2 and 3 of the law of 11/01/1958 but not under the provisions of Articles 316, 270 & 271 of the Penal Code as they do not constitute a legal law to a specific crime.
And WHEREAS the aforementioned accused was involved in the forgery of passports, which falls under penalty of felony in accordance with Article 463/219 of the Penal Code.
And WHEREAS there isn't enough evidence that the aforementioned accused has used the services of the forger, he shall be found not guilty of the felonies raised under Articles 463/454 of the Penal Code.
And WHEREAS the accused engaged in the provision of various weaponry on behalf of the terrorist group Fatah El Islam, which falls under the penalty of felony in accordance with Article 72 Weapons, he shall be found guilty accordingly.
And WHEREAS the defendants have committed more than one Penal act, this puts them in a position of conclusive evidence, The Council, having the right to enter judgment, and pursuant to Article 205 of the Penal Codes, believes that their penalties should be integrated so that each of them receives only the severest penalty;
Therefore
The Judicial Council has unanimously ruled:
First: To convict the defendants [the applicant], [Mr C] and [Mr D] of the crime set forth in Article 4 coupled with Articles 2 and 3 of Law 11/1/1958 and to bestow the death sentence upon them, deprive them of their civil rights and prevent them from disposing of their movable and immovable property. Moreover, to appoint [name deleted], the Judicial Council Chief Registrar by delegation, as a trustee to manage the defendants' possessions throughout the time during which they are hiding from the face of justice and to ensure that an arrest warrant is issued against each of them.
Second: To convict the defendants [the applicant], [Mr C] and [Mr D] of the offence set forth in Article 463/219 of the Penal Codes and imprison them for three years and to convict the defendant [the applicant] of the offence in accordance with Article 464/219 of the Penal Codes and imprison him for two years.
Third: To declare the innocence of the defendants [the applicant], [Mr C] and [Mr D] with respect to the offence set forth in Article 463/454 of the Penal Codes for the lack of sufficient evidence against them;
Fourth: To convict the defendants [the applicant], [Mr C] and [Mr D] of the offence set forth in Article 72 Weapons and imprison them for two years accordingly.
Fifth: To forbid the defendants from carrying weapons throughout their lives.
Sixth: Integration of penalties imposed on the defendants according to Article 205/Penal Codes whereas each of them receives the severest penalty only, i.e. capital punishment;
Seventh: To Charge the convicted with all legal costs equally.
The ruling was issued in absentia and made clear publicly in the presence of the representative of the Appellate Public Prosecution [in] October 2014.
-Signature of the clerk: (Signed)
-Signature of the member ([deleted]): Signed
-Signature of the member ([deleted]): Signed
-Signature of the member ([deleted]): Signed
-Signature of the member ([name deleted]): Signed
-Signature of the Chief of the Judicial Council by proxy: [name deleted] (Signed)
Other information provided to the Tribunal
The Tribunal notes that the applicant, through his representative, provided a significant amount of other information to the Tribunal on 5 December 2016 and 13 February 2018.
On 5 December 2016, the applicant’s representative provided copies of the following publications and articles:
a. a document entitled ‘Torture by police, forced disappearance and other ill treatment.’ The document is not dated but the document refers to the torture and mistreatment detainees were subjected to in Lebanese prisons (3 pages).
b. a document entitled ‘Freedom in the world – Lebanon.’ The document is dated as being a 2016 report. The document makes reference to issues surrounding Lebanon’s political system, the Syrian conflict and terrorism (2 pages).
c. a document entitled ‘Lebanon - The death penalty - UN Human Rights Council - March 2015.’ The document is not dated but the document refers to the death penalty in Lebanon, the Lebanese prison system, and issues about legal representation (1 page).
d. a document entitled ‘Lebanon’s prisons: beyond the pale of the law’ dated 10 November 2015. The document refers to issues regarding the Lebanese prison system (5 pages).
e. a document entitled ‘Lebanese authorities knew about prison torture’ dated 23 June 2015. The document refers to issues regarding the Lebanese prison system and reports of abuse (4 pages).
f. a document entitled ‘UN Special Coordinator for Lebanon Visits Roumieh Prison’ dated 22 October 2016. The document refers to a visit and tour of Roumieh Prison by Ms Sigrid Kaag (2 pages).
g. a document entitled ‘Death in Lebanon Prison’ dated 21 November 2016. The document refers to issues regarding the death of an inmate in Roumieh Prison (2 pages).
h.a document entitled ‘Prison lockdown continues in Lebanon County after trash throwing and acts of defiance’ dated 1 December 2015. The document refers to issues regarding the Lebanon ‘County’ Prison in the United States of America rather than actually the ‘Country’ of Lebanon (2 pages).
i.a document entitled ‘Riots in Lebanese Roumieh prison over living conditions’ dated 24 June 2015. The document refers to issues regarding a riot that took place in Roumieh prison in mid 2015 (4 pages).
j.a document entitled ‘Victims tell of systematic torture in Lebanon’s Prisons’ dated 26 June 2015. The document refers to issues regarding the reports of torture and brutality at Roumieh prison (5 pages).
k.a document entitled ‘Speaking out for foreigners in Lebanese prisons’ dated 23 March 2016. The document refers to issues regarding the non-Lebanese prisoners in Lebanese prisons (4 pages).
l.a document entitled ‘Lebanon 2015 Human Rights Report’ published by the US Department of State (42 pages).
On 9 December 2016, the Tribunal received two compact discs containing videos, including news reports and reports of what looks like inmates being mistreated in a Lebanese prison. The reports are in Lebanese.
On 13 February 2018, the applicant’s representative submitted copies of several publications including:
a.an article by Dr Walid Abdulrahim, ‘The State of Prisons in Lebanon’ (no citations provided).
b.a guest post by Emma Humphris, ‘Speaking out for Foreigners in Lebanese Prisons’, 23 March 2016, University of Oxford Faculty of Law.
c.an article in Mamamia by Joanna Robin dated 18 April 2016, ‘The rats are as big as cats: Life for Tara Brown inside a Lebanese jail’.
d.an article by Fernande van Tets dated 8 March 2015 (website unknown), ‘Lebanon’s Isis prison: a rare glimpse inside the jail from which terror attacks have been directed’.
e.a copy of a printout from World Prison Brief for Lebanon (it appears for August 2016).
f.an article from France 24 news dated 23 June 2015, ‘Lebanese authorities “knew about prison torture”’.
g.an article from Al Arabiya English dated 22 June 2016, ‘In Lebanon’s most notorious prison, convicts take to the theatre’.
h.an article from Al Jazeera dated 14 August 2017, ‘A legacy of torture: Inside Lebanon’s Khaim jail’.
i.an article dated 4 February 2014, ‘Women in Lebanese Prisons: the untold story’.
The Tribunal accepts the country information provided by the applicant’s representative as detailed above, even the information pertaining to Lebanon County, United States of America. However, the Tribunal notes that the country information provided by the applicant generally relates to the period between 2014 and 2017, and not to the circumstances at the time the applicant was in Lebanon in the period between 2007 and 2009.
Written submissions dated 13 February 2018
The Tribunal notes the submissions provided by the applicant’s representative on 13 February 2018. The Tribunal notes the submissions refer to the most recent DFAT report on Lebanon dated 23 October 2017. The applicant’s representative submitted:
a.the applicant feared that if he returned to Lebanon that he would be immediately arrested by the Lebanese authorities, detained and face possible execution in the foreseeable future.
b.the applicant considers that there is currently a moratorium on the death penalty, the real likelihood exists that he may be subjected to execution in the foreseeable future.
c.at 4.6 of the DFAT report on Lebanon dated 23 October 2017, it states that Lebanon has not signed the Second Optional Protocol to the International Covenant on Civil and Political Rights on the Abolition of the Death Penalty.
d.at 4.7 of the DFAT report on Lebanon dated 23 October 2017, it states that since 1998 Lebanon has upheld an unofficial moratorium on execution.
e.the Tribunal cannot be satisfied that the applicant’s claims of being subjected to the death penalty and executed are far-fetched and unsustainable.
f.the Tribunal cannot be satisfied that if the applicant returned to Lebanon there is no real likelihood that he will be executed in the foreseeable future.
g.at 4.8 and 4.9 of the DFAT report on Lebanon dated 23 October 2017, it conveys concerns about the practice of torture by the Lebanese authorities.
h.at 4.9 of the DFAT report on Lebanon dated 23 October 2017, it states that there are credible reports of the authorities using torture, particularly during preliminary investigations, and that such concerns are mirrored in the US State Department’s Country Reports on Human Rights Practices for 2016.
i.at 4.10 of the DFAT report on Lebanon dated 23 October 2017, it states that the Internal Security Forces (ISF) reportedly threatened, mistreated and tortured drug users, individuals involved in prostitution and lesbian, gay, bisexual, transgender and intersex people.
j.the Tribunal cannot be satisfied that if the applicant returned to Lebanon there is no real likelihood that he will be mistreated and subjected to real or significant harm at the hands of the Lebanese authorities during initial investigations.
k.at 4.12 of the DFAT report on Lebanon dated 23 October 2017, it states that despite protections, authorities continue to arbitrarily arrest and detain individuals without charge.
l.the Tribunal cannot be satisfied that if the applicant returned to Lebanon there is no real likelihood that he will not be arbitrarily arrested and detained without further charges.
m.extensive evidence related to the prison conditions in Lebanon which the applicant claims he will likely be subjected to.
n.further evidence stating that over the years the Lebanese and International Human Rights NGOs have repeatedly reported that Lebanese prisons do not meet the minimum international standards, where prisons are mismanaged, packed to twice their capacity and that individuals are detained in cruel and inhumane conditions, with reported cases of death, use of torture and ill treatment in prisons.
o.their assertion that the applicant has given evidence that he was previously imprisoned and was subjected to torture and other forms of cruel and inhumane prison conditions.
p.if the Tribunal does not accept that there is a real likelihood that the applicant will be subjected to execution in the foreseeable future, the Tribunal cannot be comfortably satisfied that, in light of the independent evidence pertaining to Lebanese prison conditions, the applicant would not be subjected to mistreatment/torture during investigations, arbitrary arrest and detention, as well as cruel and inhumane mistreatment whilst in prison.
The applicant also submitted a report by [a counsellor] dated [January] 2018. The report states as follows:
This report was requested by [the applicant]'s legal [representative]. Information has been obtained about [the applicant]'s background history and a comprehensive assessment of his psychological functioning has been undertaken.
This report provides an opinion about the consistency between [the legal representative]'s psychological functioning and the events he has reported.
Source of referral and history of contact:
[The applicant] was initially referred to [Organisation 1] by the Red Cross in November 2010 and he was seen for assessment and counselling by various [Organisation 1] Counsellors until early 2012.
At the time of initial referral, [the applicant] presented with symptoms of anxiety related to the processing of his visa application and his reported trauma history in Lebanon. [The applicant] ceased contact with [Organisation 1] in February 2012.
[The applicant] self-referred to our service again in June 2016 and requested counselling to assist him deal with anxiety related to his asylum seeker status and insomnia. This self-referral was followed by a referral from his AMES case manager [in] July 2016. [The AMES case manager] was concerned about [the applicant]'s increased levels of distress evident during their contact.
I saw [the applicant] for initial assessment on [date] 2016 and I have since seen him face to face on a further 16 occasions.
Source of information:
The main source of information for this report has been my counselling sessions with [the applicant].
I have also read case notes from his previous counsellors at [Organisation 1], a copy of his statutory declaration dated 15/05/2010 and a copy of a psychological report prepared by [a] clinical psychologist, dated [date] 2010.
History of detention and Refugee Status Determination:
[The applicant] arrived by plane to Australia [in] May 2010 on a [second temporary] visa. He has engaged the services of a lawyer [who] has assisted him since.
[The applicant] lodged his initial protection visa application [in] June 2010. His application received a negative decision [in] May 2011. This decision was affirmed by the AAT on 30 August 2011. This decision was appealed and dismissed by the Federal Circuit Court.
[The applicant] then joined a Federal Circuit Court class action case which had a positive outcome and allowed him to re lodge a protection visa application on the grounds of complementary protection. He awaits an AAT hearing.
Session Behaviour:
[The applicant] presented as a neatly dressed man during sessions. His eye contact was appropriate. He showed distress and became tearful on occasions when he spoke about his reported prison and torture experiences In Lebanon. There were times when he held his head in his hands and sobbed.
An Arabic speaking interpreter was used during the first two sessions of assessment, but in following sessions [the applicant] requested that the sessions be conducted in English, as he said he did not trust interpreters. His level of English is basic, but enough for him to engage in counselling. Rapport and trust was slow to establish. In time he was able to describe traumatic events that had taken place in Lebanon. [The applicant] showed difficulty in recalling distressing events in sequential order.
Current Circumstances:
[The applicant] has [siblings] residing in Lebanon and [siblings] residing in [City 1]. The client's mother, who arrived by plane on September 2013, has also sought asylum in Australia. [The applicant] previously resided with his sister and her family, however, after the arrival of his mother, both moved to reside together.
[The applicant]'s current visa conditions do not allow him to work or study. He is also required to report to the Department of Home Affairs [every] month.
He said that he was a practicing Sunni Muslim, but did not attend prayers in the mosque. He said that he had been to several mosques in [City 1] and [another location] but did not feel comfortable there. He reported that he felt unsafe and that there were people staring at him.
Personal background:
I have read [the applicant]'s statutory declaration and the events described there are not repeated here. [The applicant] is [one of a number of] siblings. [A number] of his siblings live in Lebanon and [a number] in Australia. His father passed away when he was [a certain age] due to a [medical condition] and his mother currently lives with him in [City 1]. He describes a close and caring relationship with his mother. He said that he was born in a conservative Sunni Muslim family.
[The applicant] said upon completion of his secondary education he went to university and studied [for] three years. He reported that he did not complete his [degree] because he found the course too difficult. He reported that he then worked as [an occupation] in his home village. He said that despite enjoying this job he looked for more stable and better paid employment and he started to work [in a different area].
[The applicant] said that he was detained by the Lebanese authorities in around 2009. He said that following his release from prison and up until the time he came to Australia, he could not find employment. He reported that many in the community became aware of his arrests and excluded him. [The applicant] said that he married in 2007, but that his marriage broke up whilst he was incarcerated. He said that his divorce was finalized in 2011.
Medical and psychiatric History
[The applicant] has been a patient of [a doctor] from [a medical centre] located in [a suburb] since July 2015. [The applicant] reported that he had been taking anti-depressant medication, Zoloft 20mg from August 2015 until December 2016, but that he stopped taking it since he felt that he was becoming addicted to the medication. He also described experiencing side effects including drowsiness, weight gain and insomnia. He said that he was a diabetic and had high blood pressure in the past, and that he had taken medication for these conditions, but that these conditions had since improved.
History of psychosocial functioning:
[The applicant]'s history is presented chronologically in this section, but it was not provided in or elicited in this order. The information was presented in the context of providing counselling. [The applicant] said that his early life in Lebanon was peaceful and that he was close to all his siblings. He said that he has always been very close to his mother.
The most significant psychological event for [the applicant] relates to his reported torture in 2007. He described that in May 2007, he sold [an item] to a man who only paid him in part. [The applicant] said that he was not aware at the time that this person was under surveillance by the Lebanese Army. He reported that as a result of him pursuing this man for payment of the [item], he was taken to the Ashrafieh headquarters by intelligence officers for questioning with regards to his association with this man. [The applicant] said that after questioning, he was released, but that five days later he was asked to return to the headquarters.
[The applicant] said that during this period he was interrogated and tortured, including being hung upside with a piece of timber placed between his legs, blindfolded, handcuffed and beaten with a steel object.
He also said that he was given electric shocks. He reported that he lived with thie fear of death every minute during this time. He said he was unable to sleep, as the interrogators would take turns to kick, punch and hit him. He reported that at times he felt that it would have been better for him to have died, instead of enduring the suffering he described. He said that his imprisonment had brought a lot of shame to his family and that this caused him to feel guilt and anger as well.
[The applicant] reported that his family engaged a lawyer and paid for his bail and release. After his release, [the applicant] described that he struggled with shame and also an inability to trust people. Due to this, he said that from then he maintained a reclusive lifestyle. His said attempts to find employment following his release were unsuccessful, as many in the community had become aware of his imprisonment. [The applicant] reported that although he had suicidal thoughts at this point in time, he did not attempt to harm himself.
[The applicant] reported that a few months after his release, there was an attempt on his life. He said that he was shot at by a neighbor, with whom he had been previously friendly. The bullet entered his [body]. Visible scarring can be seen on his [body]. [The applicant] said was hospitalized for a few days and was then discharged. [The applicant] said that he was shocked that his neighbor had done this, since they had been on good terms. After this incident; he said he no longer trusted anyone except his mother. [The applicant] said that after this, he remained within his house and would leave the house usually only once or twice in a fortnight. [The applicant] spoke of the attempt on his life as a betrayal by a trusted friend and neighbor. He described that after the initial shock of being shot, he felt anger and was thereafter not able to trust anyone outside his family.
Psychosocial presentation
[The applicant] presents with symptoms indicative of a person who has experienced traumatic events. He is noted to have intrusive symptoms, such as flashbacks of the torture that he describes being subjected to in Lebanon.
During initial counselling sessions, [the applicant] was reluctant to speak of his experiences whilst in prison. It appeared that [the applicant] was wary of who he could trust. His lack of trust of interpreters, and also members of the Lebanese community; was an evident theme in most sessions.
As counselling progressed, [the applicant] was able to describe being beaten by his interrogators. Occasionally, whilst talking of his past incarceration, [the applicant]'s breathing would become heavier and slow. He would also pause at times to wipe away tears and gather his composure. [The applicant] would became very emotional and teary when speaking of the trepidation he experienced related to the uncertainty of when the interrogators would come again to his cell and torture him.
[The applicant] said that he avoids watching television whenever there is a scene of an interrogation or torture, as this rekindles reminders of his trauma, especially if there are scenes that include people being blindfolded or placed in solitary confinement. [The applicant] reported that if he viewed such scenes, he would break down in tears and also scream. He described one such instance which had transpired in his sister's residence, and once in the cinema with members of his family. He reported that it was very embarrassing for him to have to run out of the cinema and have people stare at him, as he was unable to remain there. He described that he tried to close his eyes and ears and remain in the cinema, but was unable to due to his level of anxiety. He said that he was unable to sleep for days after this incident.
[The applicant] described that he had been having difficulties in sleeping and that at night, he would have intrusive thoughts of the torture that he had been through whilst incarcerated and also memories of being shot. He reported that although he did not have vivid nightmares of the incidents, but that during his inability to sleep, he would re-visit the incidents of his trauma repeatedly. When describing this recurring experience, his countenance was downcast [The applicant] consistently presents with low levels of energy and high levels of anxiety. He described a current sense of hopelessness, which he experiences as overwhelming, in the context of his uncertain visa status. It was observed that [the applicant] would look up at the celling, while stating 'I do not know how long more I have to wait'. At times he has said, 'I would rather die than be in this situation'.
[The applicant] reported that although he experiences hopelessness and suicidality, he did not have any plans to commit suicide. He said feels safe at home alone but very vulnerable in a place where there would be many people. He avoids crowded areas and would close his blinds at home, turn off his mobile phone and be alone. His anxiety was noted to be most prominently based on his fears about his future. He has expressed a strong subjective fear about returning to Lebanon, where he believes he would be detained, tortured or killed.
[The applicant] reports experiencing low mood over the past several years and also a heightened anxiety when required to report at the Department of Home Affairs every [month]. He stated that he would sleep only three or four hours a day; the week before his reporting date. He said that he would be the first person in the morning to enter the office, and would leave the office immediately after reporting. He said he would avoid eye contact with Departmental staff, since that would increase his levels of anxiety. He stated that his breathing would be heavy, his lips dry and his palms would be sweaty during this time. He said that was always fearful of being detained by the Department during such appointments.
Summary:
[The applicant] presents as being affected physically and psychologically by the traumatic events he reports experiencing, including imprisonment, torture and an attempt on his life. These reported experiences have also impaired his ability to relate to people and to associate freely with others in the community. He finds it difficult to trust others and he exhibits strong self-isolating tendencies.
[The applicant] has consistently displayed anxiety, depressive and post-traumatic stress symptoms whilst engaged with [Organisation 1]. In addition, he has continued to express a strong subjective fear of return to Lebanon. In my opinion, [the applicant]'s psychological presentation is consistent with his reported trauma history.
It is recommended that [the applicant] continue to attend counselling at [Organisation 1].
Credibility concerns
As indicated above, the Tribunal considers that there are aspects of the applicant’s claims that are demonstrably true, in particular that he was convicted of terrorism offences in 2014. However, the Tribunal has considerable concerns about the credibility of aspects of the applicant’s evidence that the applicant has put forward to support his claims. In short, the evidence the applicant gave in support of key events he claimed happened to him simply did not convince the Tribunal that they actually happened to him. Credibility concerns have previously been raised about the applicant’s claims.
The credibility concerns are so significant that they were commented on at length by the delegate in his decision and he stated as follows:
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. But nor can significant inconsistencies, fraudulent evidence or embellishments be lightly dismissed. A decision maker is not required to accept uncritically any and all claims made by an applicant. The concerns of lack of credibility in this decision are based on logical or rational evidence of all the concerns mentioned above accumulative.
I have put weight on all the concerns outlined above. I am particularly concerned about the applicant's inability to give a succinct plausible reasons and details of his claims and circumstances which lead to his claimed arrest.
The concerns listed above are a clear indication the applicant claims have been fabricated in order to obtain a protection visa. His claims alone are implausible. The applicant was evasive and incoherent when questioned on these inconsistencies and when pressed for a response to explain the issue he simple stated I should refer to the court papers.
There was no part of his claims I found to be credible. There were too many consistent issues with his claims and no reliable supporting evidence. The court papers presented I could not consider reliable. In a search through the internet for any information regarding the applicant, the article on file was the only source located. As discussed this article further discredits the applicant's claims. In addition the applicant's previous [temporary visa] application and previous PV application and the inconsistencies within those further highlight the claims not to be credible.
When provided with the opportunity to respond and to alleviate the concerns the applicant was unable to respond to questions in a reasonable, plausible way. He was often evasive, incoherent and avoided answering questions despite them being asked several times in several different ways.
I have considered several case histories when considering a negative finding on the applicant's credibility. Including Selliah v MIMA [1999} FCA 615 North and Einfeld JJ. And Bakhtyar v MIMA [2001] FCA 947. However when applied to this particular case I have considered the specifics of the cases circumstances such as, the applicant has good representation. He has been in Australia living within the community for several years now. He has been educated. The applicant has been through the PV process previously; such interviews would not be foreign to him. I find the considerations in the sighted case law, although I am mindful of them; have little effect on the applicant's ability to give consistent, truthful and plausible claims.
Credibility is a finding of fact that is open to the decision maker or tribunal to make. A decision maker is not required to accept uncritically the person's account and a decision maker does not have to have rebutting evidence available before it can lawfully be determined that a particular factual assertion by a person is not made out.
I am mindful in order for credibility findings to be fatal to parts of an application or the application as a whole the credibility concern has to be so serious that it gives rise to a positive state of disbelief - it is not enough for a delegate to just have some doubts. However the reasons for the finding of a lack of credibility have been outlined in detail in this decision record. I do not consider the evidence to be minor or trivial. The lack of credibility is not little discrepancies, but rather are the core basis in which the claims rely on.
I find accumulative in this specific case the claims to be implausible. I am also mindful a decision maker is not required to accept uncritically an applicant's claims and the applicant is not entitled to have their claims accepted simply because there is a possibility that they might be plausible or because they should be given a benefit of the doubt.
In assessing the applicant's credibility I find I have given him 'a reasonable margin of appreciation' to flaws in his testimony. I believe I have explored the matter without any preconception but have made a finding on what is reasonable or logical.
The above examples are not an exhaustive list of the inconsistencies or concerns relating to his story. I do not accept any of his stories are true or are for the reasons given. I have doubts on the validity of many aspects of his claims and have concerns with his inability to give me consistent plausible details. I do not accept the applicant was ever arrested and put in prison for two years based on selling his [item]. I do not accept he has consequently been sentenced to death. I do not find any of his claims to be credible or he is at any risk upon return to Lebanon.
The delegate went on to detail specific examples or areas of concern he had with the particular aspects of the applicant’s evidence in support of his claims. Member Thwaites also raised a number credibility concerns with the applicant during the hearings. The author of this decision, the Tribunal, also holds credibility concerns with aspects of the applicant’s evidence and claims. These concerns are detailed below.
Sale of the [item]
One of the most significant issues in this matter was the applicant’s evidence in regard to how he had connections to Fatah al Islam in the first place. The applicant has maintained from the very beginning that the only connection he had to the terrorists was that he sold [an item] to them and he took steps to get his money back for the [item]. The applicant denied he was ever involved with the terrorists for any other reason, and he denied that he committed terrorist acts as stated in the 2014 court decision. The applicant’s evidence about this issue should have been straightforward and uncontroversial. But it wasn’t. It is notable that on each occasion that the applicant gave evidence on this matter, he changed his evidence, was evasive, would not directly answer questions and he would talk around the questions rather than answering them directly and spontaneously. The applicant conducted himself so strongly in this manner that it is of some considerable curiosity to the Tribunal as to why he would do that. His conduct and his evidence created such significant concerns as to his credibility, as identified by the delegate, that the Tribunal put those concerns to him. Yet the applicant was never able to satisfactorily answer those concerns and that has caused the Tribunal to continue to hold concerns that the applicant’s claims in regard to the ‘sale of the [item]’ story are not credible.
The evidence below demonstrates why these concerns are held.
Statutory declaration of 18 May 2010: In his statutory declaration dated 18 May 2010, he claimed:
On [date] May 2007, I privately sold [an item] to a purchaser [Mr A]. He part paid me and assured me that he would pay the balance of the money within two days. On Sunday 20 May 2007, the conflict between Fateh El Islam and militants and the Lebanese army erupted at Nahr El Bared refugee camp.
On [date] May 2007, the purchaser did not come as he had promised to pay me the balance. I spent the rest of the day calling him on his cellular number, but there was no answer.
Later that day I was informed by a [named person], that [Mr A] had been arrested by the Lebanese intelligence and that his arrest was associated with the conflict at Nahr El Bared.
In the evening, I received a telephone call from the Lebanese intelligence who requested me to attend their Ashrafieh headquarters, situated in Asharafieh Beirut at 10.00am.
The following day I attended the intelligence headquarters as ordered. I was order to remain there the entire day, without being questioned. In the evening I was brought into an interview room where I was extensively questioned about my alleged association with [Mr A]. I informed them that I sold [an item] to him and that was the extent of my association. I also showed them documents evidencing the purchase, including a cheque.
I was released and I left the headquarters at approximately 11.00pm.
The following Saturday, I received a further telephone call from the Lebanese intelligence and again they ordering me to attend their headquarters at Ashrafieh.
In the statutory declaration, the applicant is very specific about how he said the ‘sale of the [item]’ story happened. He gives specific dates and timeframes, specific places, specific events and specific people he claimed he had interactions with. At this point, it all looks quite reasonable and straightforward.
Delegate’s decision of 18 May 2015: The delegate had concerns about the applicant’s evidence concerning the sale of his [item], and stated:
Within his statement the applicant claims he sold his [item] on [date] May 2007 to [Mr A]. That he part paid him on the day and assured him he would pay the rest within two days. On [date] May 2007 the applicant spent the day calling and attempting to get in contact with [Mr A].
Within interview the applicant gave a very different account. He stated he sold the [item] in 2004 to [Mr A] brother [Mr E]. That he then went to [Mr A] to collect the money from because [Mr E] had gone missing. The applicant stated [Mr A] gave him a little bit of money each time, however this stopped before full payment was received. The applicant was upset as he saw [Mr A] driving around in a new [item] and knew he had the money to pay him.
It was put to the applicant his version of events given at interview were very different to that within his statement. The applicant stated "No they aren't". It was put to him they very clearly were and quite significantly. The applicant became defensive and evasive to responding to the inconsistency. The applicant's only response to the inconsistencies was he pointed to the court papers he presented at interviewing claiming that he had been sentenced to death. Despite being asked several times the applicant did not respond or offer an explanation to the clear inconsistency within his claims. It is noted the whole basis of his claims for protection are based on this event.
…
I have considered further implausibility's within the applicant's claims. The applicant claims his issues have all arose from the sale of his [item] in 2004. It was noted if this were the case there would be clear records of his innocence. The applicant is not politically connected nor is there any reason he would be sentenced to death for selling his [item] to a stranger as claimed. The idea that ten years later he is sentenced to death for selling his [item] I find completely implausible. It is further noted the article supplied by the applicant ([file number] folio 91-92) has a very different account of why the named individual in the article was sentenced to death.
The delegate in his decision above identifies some critical issues. When the delegate asked about the ‘sale of the [item]’ story with the applicant, the applicant changed his story. It is not insignificant that the applicant suddenly remembered that he did not sell the [item] in question on the date he claimed in a statutory declaration that he sold the [item]. Nor is it insignificant that the applicant suddenly remembered that he did not sell the [item] in question to the person to whom he claimed in a statutory declaration that he sold the [item] to. Nor is it insignificant that the applicant suddenly remembered that the manner in which he said he was paid for the [item] in question was significantly different to what he had claimed in a statutory declaration. The applicant’s response to the delegate when questioned on the inconsistency of his evidence is notable. That he became defensive and evasive to responding to the inconsistency is notable. That the applicant's only response to the inconsistencies was to point to the court papers he presented at interview claiming that he had been sentenced to death is notable. That the applicant did not respond or offer an explanation to the clear inconsistency within his claims, despite being asked several times, is notable. Significantly, that the whole basis of the applicant’s claims for protection are based on this singular event is notable.
The delegate identified that the applicant claimed his issues have all arisen from the sale of his [item] in 2004. The delegate noted the absence of any clear records in support of this claim. The delegate noted that the applicant was not politically connected and he did not see any reason that the applicant would be sentenced to death – all for selling his [item] to a stranger as claimed. Further, the delegate found the idea that ten years later the applicant would be sentenced to death for selling his [item] to be completely implausible.
The issues raised by the delegate in his decision are not insignificant. It was notable that such concerns could arise out of what appeared to be a relatively uncontroversial and straightforward claim. The applicant was reasonably aware of these issues and concerns prior to his hearing with the Tribunal. It would reasonably be expected that the applicant would seek to address these issues with the Tribunal and allay any concerns surrounding them.
Hearing on 21 November 2016: At the hearing on 21 November 2016, the applicant told the Tribunal that he sold his [item] to [Mr A] in 2007, but then said he actually sold it to [Mr E]. The applicant said that he met both [Mr E] and [Mr A] in 2004, but that in 2005 [Mr E] fled and because [Mr E] fled the applicant started communicating with [Mr A]. The applicant said that [Mr A] promised to pay him the money for the [item] and that since 2005 he continuously called [Mr A] to try and get the money for the [item] but [Mr A] did not pay him. The applicant said that [Mr A] kept lying to him, saying that he would pay him next month and so on.
The applicant said [Mr A] gave him a cheque for the [item] but that when he took the cheque to the bank, the bank told him there were no funds and the cheque was declined.
The applicant then said he made a complaint to the authorities about it. The applicant said he went to the police station and lodged a complaint.
When asked what happened to the complaint, the applicant said the police went to [Mr E]’s house. The applicant indicated that the police spoke to [Mr E]’s parents who told the police that [Mr E] had fled and that they would pay the applicant what he was owed for the [item].
The applicant then indicated from around that time that he started communicating with [Mr A]. The applicant indicated he would see [Mr A] a lot because he said he ‘used to see him at the where we go every time, every time he said give us more time and I could do nothing with them’.
Critically, when asked how this issue connected the applicant to execution, he indicated that in 2007 he put a lot of pressure on [Mr A] to pay him the money he was owed for the [item]. The applicant said that one Friday he met him at the cafeteria and again asked [Mr A] to pay, and that [Mr A] responded that he would pay the applicant the money on Monday.
The applicant said that on Sunday he was at his uncle’s house in Beirut because he was married to his uncle’s daughter.
The applicant said that on the Sunday morning he woke up and was told that there was a gunfight in Tripoli but he did not know who was shooting and fighting.
The applicant indicated he became aware that the fighting in Tripoli was between Fatah al Islam and the Lebanese army.
Then the applicant indicated he travelled that same day (Sunday) to Tripoli with his mother to their house where they live. He said he stayed home and couldn’t go out because of the fighting.
The applicant indicated that he was continuously calling [Mr A] to try and get his money for the [item], but he didn’t answer his calls.
The applicant indicated that on Monday morning he went to ‘the shop’ where they sell cultural items and when he saw that the shop was closed he went to the cafeteria to try and find [Mr A].
The applicant indicated that while he was at the café he was alone there, but then he saw someone there who knew that [Mr A] owed him money, and that person told him the gunfight was actually between [Mr A] and his brothers at home, fighting against the army because they are Fatah al Islam.
The applicant indicated that he was scared but he knew he had nothing to do with it. The applicant indicated that Monday evening he went back to Beirut to his uncle’s place.
From this point in his evidence, the applicant indicated he was contacted by Lebanese intelligence who then called him in for an interview, and then subsequently kept him detained until 2009.
The evidence the applicant gave at the 2016 hearing was clearly different to that which he had given previously in regard to his claim about the circumstances surrounding the sale of his [item]. So much so, the Tribunal expressly put these concerns to the applicant during the hearing in 2016.
Member Thwaites put to the applicant that there was a difference between what he had said at hearing and what he had said in the statutory declaration, to which he responded:
They wouldn’t let me talk freely, the Department of Immigration where I had interview, and everything they said they took it as if it is a lie and every paper there that’s not accurate.
Member Thwaites put to the applicant that in the hearing the applicant indicated he sold [an item] to [Mr E] but in the statutory declaration the applicant indicated he sold [an item] to [Mr A]. In response the applicant stated:
[Mr E] is the one who purchase the [item] from me.
Member Thwaites put to the applicant that he had just told him (in the hearing) that he had sold the [item] to his brother ([Mr A]), to which the applicant responded:
I sold the [item] to [Mr E], [Mr A]’s brother.
When Member Thwaites told the applicant that that was not what he had said in his statutory declaration, he responded:
[Mr A] is the one who promised to pay the money.
Member Thwaites put to the applicant that during the hearing the applicant said he ([Mr A]) gave him a cheque and that he took it to the police when he didn’t pay, and that he made no mention of that in his statutory declaration, to which he responded:
When we fill that stat dec on the basis that the details we will say in court.
The applicant then said:
About the cheque or my shooting or the court case, I’ve got the papers there in Lebanon and if anything is wrong I just accept whatever it is. I try to get original documents which prove that but they declined to give to them me, they say that he has no civil rights, he’s outside there, he can come here and ask for them.
Member Thwaites put to the applicant that he made those claims in 2010, and questions about the genuineness or the reliability of the document he had provided have been raised by a number of decision makers, to which he responded:
I can sign a promise that you can ask Lebanese government if everything that comes up as false, I sign a statement there that I promise.
Member Thwaites indicated to the applicant that he would discuss that with him later but that first he wanted to talk to the applicant about the differences between what he had said in his statutory declaration and what he had said at the hearing.
166. Based on the evidence above, the Tribunal does not accept the applicant’s claim that he is in urgent need of any mental health services.
Applicant’s claims as to how he managed to get out of Lebanon and come to Australia
167. The Tribunal has considered how the applicant was able to leave Lebanon and come to Australia if he was in fact the subject of investigations and detention by the Lebanese authorities for terrorism offences.
168. The issue of how it could be that the applicant was released from custody (in 2009), if indeed he was to go to trial for terrorism offences in Lebanon (in 2014), was a source of some concern by the delegate and Member Thwaites who questioned the applicant on this point.
169. In the delegate’s 2015 decision, the delegate had concerns about the applicant’s evidence pertaining to his ability to obtain a Lebanese passport after his release from prison, and stated:
It was noted the applicant was able to get a passport after his claimed release. It was put to him if he was released on bail and meant to go to court to face a death sentence I found it highly unlikely he would be able to obtain a genuine passport from the authorities. It was noted to get a Lebanese passport you must supply finger prints and the appropriate ID. I do not accept if the applicant was released on bail and awaiting trial in which the sentence was death he would be allowed to travel. When put to the applicant he stated he was on bail so it was easy to get a passport.
170. This issue was again discussed at the hearing in 2016. During this hearing, the applicant indicated that he knew that after he was released he was going to be required to go to court. The member on that occasion expressed concerns as to how the applicant was able to be released from prison, get a clear police record and a passport and then a [temporary] visa to come to Australia.
171. Accordingly, the Tribunal finds that if the Lebanese authorities genuinely intended to harm the applicant, they would not have let him out of prison on a bond, he would not have been given a clear police record and he would not have been given a passport to then be able to leave Lebanon.
Assessment of applicant’s credibility
172. In considering the applicant’s credibility, the Tribunal has considered the concerns as detailed above collectively and cumulatively. It is apparent to the Tribunal that some parts of the applicant’s claims are credible (i.e. that he was jailed between 2007 and 2009, shot in 2009, and convicted of terrorism offences in 2014). However, it is equally apparent that some other parts of the applicant’s claims are not credible (that the reasons for his imprisonment and terrorism convictions were due solely to him having sold [an item] to terrorists, that he was shot by members of Lebanese intelligence, that he was tortured and mistreated whilst in prison, that he was at Roumieh Prison, that he was deprived of legal representation and access to family whilst in prison, that he has a need for urgent psychological treatment).
173. It is the Tribunal’s view that the applicant’s claims that are not credible particularly cause the Tribunal significant doubt about the applicant’s claims that he will be subject to harm should he return to Lebanon in the foreseeable future.
Complementary protection criterion assessment – s.36(2)(aa)
174. The Tribunal considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). The Tribunal has considered whether it has 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.
Fear of being subjected to execution in the foreseeable future
175. As indicated above, the applicant claimed that he feared being executed if he returned to Lebanon in the foreseeable future. The Tribunal has considered whether the applicant will have the death penalty carried out on him should he return to Lebanon. The Tribunal notes the letter from the applicant’s lawyer in Lebanon, [Mr B], dated [November] 2016, claiming he was the agent for the applicant in criminal proceedings before the Judicial Council in relation to the judgment issued against the applicant in absentia under number [deleted] of 2014 dated [October] 2014, and claiming the applicant had ‘spent his execution’ and his sentence had been suspended for almost two years and then he had been released on bail. The Tribunal notes that it has accepted this information. Accordingly, it appears that the operational period of the suspended sentence of two years has now passed and that while the applicant is still technically on bail, he appears to be no longer subjected to the death penalty as determined by the 2014 court decision.
176. The Tribunal has also considered the DFAT report on Lebanon dated 23 October 2017 and the country information in regard to the death penalty in Lebanon, as noted and provided by the applicant.
177. As the applicant has relevantly identified, since 1998, Lebanon has upheld an unofficial moratorium on executions, with the exception of three simultaneous executions of individuals convicted of multiple murders in 2004. Despite an unofficial moratorium on the death penalty following these simultaneous executions, judges continue to hand down death sentences. Amnesty International recorded significantly higher numbers of death sentences in 2016, with 126 Lebanese and Syrians sentenced to death in Lebanon for terrorism related offences, as well as murder and attacking the army.
178. The Tribunal notes that despite the high number of death sentences handed down to convicted terrorists in Lebanon, not one of those individuals has been executed. Nor is there any indication that Lebanon proposes to end its moratorium on the death penalty. Indeed, no person has been executed in Lebanon in the last 14 years despite the significant challenges faced by Lebanon in regard to terrorism.
179. Accordingly, the Tribunal does not accept that there is a real risk that, in the reasonably foreseeable future, the death penalty will be carried out on the applicant should he return to Lebanon.
Fears of being subject to mistreatment or real or significant harm or torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment by Lebanese authorities
180. The applicant claimed that if he returned to Lebanon in the foreseeable future, he would be subject to mistreatment or real or significant harm or torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment by Lebanese authorities, whether it be during initial investigations or whilst in detention or prison.
181. The Tribunal has also considered the DFAT report on Lebanon dated 23 October 2017 and the country information in regard to reports of torture in Lebanon, as noted and provided by the applicant.
182. The Tribunal notes the information at paragraph 4.8 of the DFAT report that:
a. Lebanon has acceded to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and has ratified the Optional Protocol to the Convention Against Torture.
b.Article 401 of the Penal Code criminalises the use of violence to extract confessions, but does not specifically criminalise all forms of torture.
c.The National Commission on Human Right’s mandate provided for the establishment of a Committee for the Prevention of Torture that would have the authority to enter and inspect all places of detention, without prior announcement or permission, and to submit findings and recommendations.
d.The Government is yet to appoint Committee members.
e.The Human Rights Committee and the Justice and Administration Committee of the Lebanese Parliament have approved draft legislation criminalising torture, which is awaiting consideration.
183. The Tribunal notes the information at paragraph 4.9 of the DFAT report that:
a. There are credible reports of the authorities using torture, particularly during preliminary investigations (despite legislation prohibiting the use of confessions extracted under duress).
b.The US State Department’s Country Report on Human Rights Practices for 2016 stated that both domestic and international human rights groups had raised serious concerns regarding the abuse of detainees, including the use of torture to extract confessions and to encourage suspects to implicate other individuals.
c.Allegations of such acts are rarely investigated. Reports suggest that continuous blindfolding, hanging detainees by their wrists tied behind their backs, violent beatings, blows to the soles of the feet, electric shocks, sexual abuse, psychological abuse, immersion in cold water, extended periods of sleep deprivation, being forced to stand for extended periods, threats of violence against relatives, and deprivation of clothing, food and toilet facilities are used.
184. The Tribunal notes the information at paragraph 4.10 of the DFAT report, as referred to by the applicant, that:
a. The Internal Security Forces (ISF) reportedly threatened, mistreated and tortured drug users, individuals involved in prostitution and lesbian, gay, bisexual, transgender and intersex (LGBTI) people.
b.Suspects arrested in relation to sectarian violence or extremism as well as refugees face a particularly high risk of torture at the hands of authorities.
185. The Tribunal notes that while the applicant in his submissions expressly noted paragraph 4.10 of the DFAT report, the applicant did not raise any claims that he was a drug user, or an individual involved in prostitution, or an individual who identified as being a member of the LGBTI community, or any claims that he had been persecuted or faced harm due to such reasons. Accordingly, the Tribunal finds that the issues as identified in paragraph 4.10 of the DFAT report are not relevant to the applicant’s claims.
186. The Tribunal notes the information at paragraph 4.11 of the DFAT report that:
a.The Lebanese Constitution provides protections against arbitrary arrest and detention. Legislation requires a judicial warrant for arrest, and provides the right to a medical examination and referral to a prosecutor within 48 hours of arrest.
b.After 48 hours, authorities must either lodge a formal charge, release the detainee or seek an extension.
c.Some prosecutors do not respect this requirement and detain suspects for long periods of pre-trial detention without a court order.
d.Military prosecutors are responsible for cases involving the military as well as those involving espionage, treason, weapons possessions and draft evasion and are able to make arrests without warrants.
187. The Tribunal notes the information at paragraph 4.12 of the DFAT report that:
a.Despite these protections, authorities continue to arbitrarily arrest and detain individuals.
b.Most victims choose not to report such violations.
c.Most cases of arbitrary arrest and detention involve vulnerable groups such as the displaced, migrant workers, drug users or lesbian, gay, bisexual and transgender individuals.
d.DFAT is aware of reports of security forces arresting and detaining political opponents without charge for short periods.
e.Foreign nationals are also reportedly frequently detained without charge.
f.Other groups, such as Hezbollah and Palestinian factions, also continue to arrest and detain individuals.
188. The Tribunal has carefully considered the DFAT information and country information provided by the applicant and accepts that in the past the use of torture had been an issue in Lebanon. However, as noted above, the Tribunal does not accept the applicant’s claims that he was subject to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment by the Lebanese authorities whilst he was detained in Lebanon between 2007 and 2009.
189. The Tribunal holds the view that if the applicant was not subjected to such treatment during his time in prison from 2007 to 2009, at the height of the terrorism troubles faced in Lebanon at that time, it is unlikely he would be subjected to such treatment if he returned to Lebanon in the foreseeable future. The view is supported by the fact that:
a.it has been 11 years since the offending behaviour took place.
b.it has been eight years since he has been in Lebanon.
c.he has already served his time in prison and has been released on bail.
d.the operational period of the suspended sentence of two years has now passed and that while the applicant is still technically on bail, he appears to be no longer subjected to the punishments as determined by the 2014 court decision.
190. The Tribunal notes that the applicant has additional criminal matters pending in Lebanon, as indicated by the email from [the Senior Migration Officer] dated [February] 2017. The Tribunal accepts that the Lebanese authorities may seek to arrest the applicant in relation to those matters if he returned to Lebanon in the foreseeable future. However, there is no indication that any such arrest would be an ‘arbitrary arrest’. Accordingly, the Tribunal does not accept that the applicant would be subject to arbitrary arrest and detention without further charges.
191. The Tribunal notes the DFAT report indicates those arrested in relation to sectarian violence or extremism face a particularly high risk of torture at the hands of authorities. However, there is no indication that the applicant’s outstanding criminal matters have any connection to sectarian violence or extremism.
192. In considering the information above, the Tribunal does not accept that there is a real risk that the applicant, should he return to Lebanon in the foreseeable future, be subjected to significant harm at the hands of the Lebanese authorities during initial investigations, or that he could be arbitrarily arrested and detained without further charges, or that he could be subject to torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. In addition, the Tribunal does not accept that there is a real risk that the applicant, should he return to Lebanon in the foreseeable future, be subjected to significant harm in relation to any terrorism or other political issue.
Religious issues
193. The Tribunal also has considered the DFAT country information that non-Shi’a critics of Hezbollah, such as Sunnis, are not at risk unless they represent a direct threat to Hezbollah’s authority and that, in reality, this is most likely to affect leaders of rival political factions or other outspoken critics, such as journalists. There is no evidence to suggest that the applicant is a direct threat to Hezbollah’s authority or that he is a leader of a rival political faction or an outspoken critic. Accordingly, the Tribunal does not accept that there is a real risk that the applicant, should he return to Lebanon in the foreseeable future, be subjected to significant harm in relation to any religious issue.
Access to medical treatment
194. The Tribunal also notes that the applicant has raised the issue that he may not get adequate medical treatment should he return to Lebanon, primarily for the reason he indicated, that he would have to pay for such treatment and would not be able to afford it. There was no evidence provided that indicated that Lebanese mental health services were inadequate. Likewise, in MZAAJ v MIBP [2015] FCA 478 the court indicated that the risk of harm from inadequate medical treatment would not mean that the applicant would face a real risk of significant harm if they returned to their country of origin. Accordingly, the Tribunal accepts and finds that s.36(2B)(c) has application and does not accept that there is a real risk that the applicant will suffer significant harm should he return to Lebanon.
Employment
195. The Tribunal also notes that the applicant raised the issue that he might not be able to get work should he return to Lebanon. In relation to employment, the DFAT report states:
Estimates of unemployment have nearly doubled to 20 per cent since 2011. Conflict in neighbouring Syria is likely to continue to have an adverse effect on employment within Lebanon, particularly in areas with high concentrations of Syrians, by expanding the pool of available labour and decreasing wages. Syrians are reportedly willing to work for lower wages, reducing opportunities for Lebanese workers. However, displaced Syrians are primarily engaged in low-skilled roles traditionally filled by non-Lebanese citizens. All sects in Lebanon rely to some extent on wasta or connections with powerful people to gain benefits in employment. Given Lebanon’s sectarian nature, this often leads to nepotism.
196. The Tribunal notes that the applicant has family support and political support in Lebanon, he is qualified as [an occupation] and was employed before being detained in 2007. The Tribunal finds that there is no evidence to suggest that the applicant faces significant economic hardship that threatens his capacity to subsist should he return to Lebanon.
Threats of self harm
197. The Tribunal notes that the applicant has on several occasions indicated that he would self harm or commit suicide if he was required to return to Lebanon.
198. It does not appear that s.36(2)(aa) is intended to include harm inflicted by a person upon themselves. The descriptions of the types of significant harm in s.36(2A) are passively worded, referring to the non-citizen being arbitrarily deprived of his or her life, the death penalty being carried out on the non-citizen, and harm that the non-citizen will be subjected to. Each of these phrases suggests harm being inflicted by a third party on the non-citizen.
199. Accordingly, the Tribunal does not accept that s.36(2)(aa) is enlivened by the applicant’s threats of self harm or suicide should he be required to return to Lebanon.
Complementary protection criterion assessment – s.36(2)(aa) – analysis
200. The mere fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself.
201. The Tribunal is aware of the importance of adopting a reasonable approach in finding the decision maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant.
202. The Tribunal considers the above consideration strongly indicates there is no basis for the applicant's claimed fears of significant harm if he returns to Lebanon.
203. For the reasons set out above, the Tribunal finds it is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment.
Conclusions
204. 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 s.36(2)(aa).
205. 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)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
206. The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36Protection visas – criteria provided for by this Act
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(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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