1509131 (Refugee)

1509131 (Refugee) [2017] AATA 989 (29 May 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509131
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Giles Short
DATE:29 May 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 May 2017 at 9:40am

CATCHWORDS
Refugee – Protection visa – Lebanon – Particular social group – Homosexuals – Credibility issues
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
INTRODUCTION

[The applicant] is a citizen of Lebanon. He arrived in Australia as a student in October 2009 and as referred to in the decision under review (a copy of which he provided to the Tribunal along with his application for review) he first applied for a protection visa [in] October 2010. In that application he claimed to be homosexual and in a relationship with another man from Lebanon who applied for a protection visa on the same day, [Mr A]. They said that Islam did not allow this kind of relationship and that they had decided to apply for protection because they would be facing all kinds of pressure, threats and punishment from their parents and the authorities in Lebanon. [The applicant]’s first application was refused by a delegate of the Minister and the Refugee Review Tribunal affirmed that decision. [In] November 2013 [the applicant] lodged his current application for a protection visa, saying that he relied on the complementary protection provisions. He also said that he feared suffering significant harm on the basis of the current political, economic, and social situation in Lebanon and that he feared Hezbollah and pro-Syrian forces because he was a Sunni Muslim.
[The applicant]’s current application for a protection visa was refused by a delegate of the Minister for Immigration [in] June 2015 and he applied to this Tribunal for review of that decision. At the hearing before me on 8 December 2016 I referred to the fact that he had applied for a protection visa previously and that he had been allowed to make a further application as a result of a decision made by the courts in Australia. I noted that his first application had been considered under the Refugees Convention and I explained to him that this meant that, in accordance with the decision of the courts, I could only consider his current application under the complementary protection criterion.[1] A summary of the relevant law is set out at Attachment A. The issue in this review is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.
[1] See SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 and see also Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127.
CONSIDERATION OF CLAIMS AND EVIDENCE
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm?
[The applicant]’s claims for protection
[The applicant] is aged in his late [age]. He has said that he comes from [Village 1] in Akkar in northern Lebanon. As referred to above, in a statement accompanying his first application for a protection visa [the applicant] and another applicant for a protection visa, [Mr A], said that they were in a love relationship. They said that although they had both resided in [Village 1] they had attended [school] together in a neighbouring [village]. They said that their relationship had grown quickly and their parents had started to be suspicious about them. They said that their parents had tried to separate them by not allowing them to see each other and by putting pressure on them.
[The applicant] and [Mr A] said that they had started to think of a permanent solution and they had found that Australia was a country which could provide them with freedom. They said that they had completed intensive English certificates in Tripoli. They said that [Mr A] had come to Australia first and that [the applicant] had followed four months later. They said that they were living together at the same address. As referred to above, they said that Islam did not allow this kind of relationship and that they had decided to apply for protection because they would be facing all kinds of pressure, threats and punishment from their parents and the authorities in Lebanon.
[The applicant] was interviewed by the primary decision-maker in relation to his first application [in] May 2011. He said that everything in his application was true and correct. He said that he had been born in [Village 1] and that he had finished high school when he had been about [age] years old. He said that after this he had studied English at an institute in Tripoli. He said that he had come to Australia because he had wanted to flee the country because he had been involved in a relationship with another man. He said that this kind of relationship was prohibited in Lebanon. He said that he had come to Australia to study [a course] and he had not completed his course. He said that he had completed three terms before he had stopped studying and had applied for a protection visa. He said that his main goal had been to live peacefully and freely with the man with whom he was in love because they could not do this or they would not dare to do this in Lebanon.
[The applicant] said that he had realised that he was homosexual about five years before the interview. He said that unlike the other boys at his school he had not liked mixing with girls or playing with them. He had just wanted to stay with his partner [Mr A] and to spend time with him. He said that he had no attraction towards girls. He said that he had met [Mr A] in school: they had been in the same class and they had studied together at home. He said that they had spent most of their time with each other. The primary decision-maker noted that there was [an] age gap between them. [The applicant] said that [Mr A] had spent more years in the same class. He said that by the time he himself had reached a particular class [Mr A] had happened to be in the same class and they had got to know each other.
[The applicant] said that he had noticed that [Mr A] was like him and did not like to mix with girls. He said that at that point he had declared his feelings, to let [Mr A] know how he felt and also to learn how [Mr A] felt. He said that he had told [Mr A] that he loved him and that they should be together if he had the same feelings. He said that [Mr A] had been very happy to hear this because [Mr A] had been waiting for him to take the initiative. He said that they had been afraid of declaring this because of the surrounding society. He said that they had known each other before this but that it had been five years before the interview that they had declared their feelings for each other. He said that he had been about [age] when they had met, then he said that they had been together at school since childhood. He said that they had expressed their feelings for each other when they had been at high school. He said that this had been when he had been [age] years old, at the beginning of high school. He said that they had been in the same class in Year [grade].
Asked about his relationship with [Mr A], [the applicant] said that it was a nice and lovely relationship and that it involved living together and sharing life responsibilities. He said that it had been very hard for them to be in such a relationship in Lebanon because it was not recognised there. He said that he had seen [Mr A] when they had studied together but he had not been able to meet [Mr A] outside the school because he had been afraid that someone would see them and that this would put them in trouble. Asked what they had done together he said that they had sat together and they had felt the warmth of each other. He said that they had felt attached to each other and secure with each other.
[The applicant] said that his relationship with [Mr A] had been a sexual relationship. He said that this had begun when he had been [age] years old. He said that they had been studying [a course] in Tripoli and they had been renting a place where they had stayed together. He said that they had not been able to go out together in the street. He said that they had been very cautious not to do anything that would attract any suspicions. He said that he had heard of the gay rights organisation in Beirut, Helem. He said that he had searched the internet to find out about it. He said that he and [Mr A] had not been able to afford to go to Beirut because it was very expensive to live there and besides this it was not secure. He said that even Helem was opposed by other organisations, especially Islamic organisations.
[The applicant] said that he had searched on the internet for information about gay rights organisations in Australia but he had not needed to explore this because he had been living freely with his partner. He said that they did not go to gay clubs or any venues of that sort because they were concerned that someone might see them entering these places. He said that they only went to Lebanese cafés and these kinds of places. He said that there were many Lebanese living in the suburb where they lived and they were afraid that some of these people might see them. He said that he was afraid that they would tell his family and that everybody else would know. He said that in that case Sharia law would apply. He said that a lot of these people came from [Village 1].
[The applicant] said that his family had had some suspicions regarding him and [Mr A] so if he returned to Lebanon his family would apply Sharia law which was to drop him from the highest point. He said that besides this the Act number 534 (Article 534 of the Lebanese Penal Code which prohibits ‘unnatural sexual intercourse’) applied in his case. Asked how his family had let them both come to Australia, [the applicant] said that [Mr A] had come here before him and his family had approved him coming here so that he could stay with his [sibling] here and study and get a certificate and go back there. He said that they did not know who he was living with. He said that his [sibling] did not know. He said that until recently he and [Mr A] had been sharing a place with other Lebanese young men. He said that the fact that he and [Mr A] had been living together had not raised suspicion because it was normal for two men to share a room. He said that every room had had two beds so nobody had suspected anything.
[The applicant] said that when he and [Mr A] had been in high school and they had studied together their parents had noticed that they were too close to each other. He said that both of them had been supposed to get married as arranged by their parents and they had refused. He said that he feared that they would be killed by their families or the government if they returned to Lebanon. He said that if they returned to Lebanon they would have to separate but this would be very difficult if not impossible. He said that they could not stop being together. With regard to relocation to Beirut he said that Beirut was not that safe. He said that many people from [Village 1] worked there and would inform their families if they saw them. He said that this would lead to harm and there was no law whatsoever that could protect them.
The primary decision-maker put to [the applicant] that the Department had been informed that he and [Mr A] were claiming to be in a homosexual relationship but that in actual fact they were not homosexual. The information indicated that they lived together and that they were claiming to be homosexual in order to obtain permanent residence. [The applicant] said that these were untrue allegations. He said that he and [Mr A] were living together and they had left the first place where they had been living because they had not been able to live freely there. He said that they now lived together freely in a place of their own. He said that since his arrival in Australia in October 2009 they had lived at the address which he had given in his application as his address from January 2010 until the date of his application. He said that [Mr A] had been living there for four months before he himself had arrived. He said that this had been the shared house. He said that they had been living at their current address for four months at the time of the interview. After a break [the applicant] said that it was hard to remember the dates for which he had been at school. He repeated that if he and [Mr A] were not allowed to stay here they would face death.
On 17 May 2011 and 2 June 2011 [the applicant]’s representatives produced evidence indicating that he and [Mr A] were living together at the same address. [The applicant]’s first application was refused [in] June 2011 and he applied to the Refugee Review Tribunal for review of that decision. At a hearing before the Tribunal on 4 November 2011 [Mr A] said that he had repeated a number of years in high school and had only finished Year 12 in [year] or [year], when he had been [age] years old. He said that he had stopped studying when he had applied for a protection visa because his family had stopped supporting him financially. He said that this was because someone had told his family that he was in a homosexual relationship with [the applicant]. He said that someone had told [the applicant]’s family this as well. [Mr A] said that he had always planned to apply for a protection visa when he had come here.
[Mr A] said that he had declared his feelings for [the applicant] when he had been [age] years old and in Year [grade]. He said that their relationship had become sexual after he had left school and that the frequency had increased when they had gone to study [a course] in the city and had rented a house together. He said that when they had been living in the village they had gone to uninhabited places such as a deserted farm to have sex. He said that they had also rented a room [in] Tripoli to have sex. The Tribunal referred to the information which had been put to [the applicant] at the Departmental interview. [Mr A] said that the information was not true, that he and [the applicant] lived together in the same room, that they had been in a relationship with each other for five years and that they had come to Australia to be together away from their families.
[Mr A] produced utility bills and photographs which he said showed him and [the applicant] together in the bedroom of their house. He also produced a copy of a letter dated [October] 2011 from [Mr B], a member of various gay groups, who said that he had known [Mr A] for five months, that [Mr A] had sought assistance from his organisation, that he confirmed that he knew that he was gay and that he was fearful and stressed about returning to Lebanon where he would not be able to be open. [Mr A] said that in Australia he and [the applicant] did not attend gay clubs and that they preferred to spend their time in Arabic cafés and at [a location]. He said, however, that he knew of a gay venue called [Venue 1] and that it was there that he had met [Mr B] around five months previously. He said that he feared that he would be killed if he returned to Lebanon. He said that he could not relocate to Beirut because it would be too expensive.
The Tribunal also took evidence at the hearing from [the applicant] who said that he had finished Year 12 in [year]-[year]. He said that he and [Mr A] had been in the same class in Year [grade] and that their relationship had started when they had been in Year [grade]. He said that they had first had sexual relations on a deserted farm after they had both finished Year [grade]. He said that in Australia they were free to live as a gay couple but that he could not announce freely that he was gay because he was scared. He confirmed that someone had told his family in Lebanon that he was homosexual and he said that his family had told him that they would kill him if he returned to Lebanon.
On 21 December 2011 the Tribunal wrote to [the applicant] in accordance with section 424A of the Migration Act 1958 referring to evidence from his [temporary] visa application indicating that he had completed Year 12 in [year] and that he had completed the first year of [a course] at [a] University in [year]-[year]. The Tribunal also referred to the fact that [Mr A] had said that he had declared his feelings for [the applicant] when he had been [age] years old and in Year [grade] whereas [the applicant] had said that their relationship had started when they had been in Year [grade]. The Tribunal also referred to the fact that at the Departmental interview [the applicant] had said that he and [Mr A] had not gone out in public as a couple whereas [Mr A] had said that they had gone out together.
In a letter dated 27 January 2012 [the applicant]’s representatives said that both he and [Mr A] had been nervous both at their respective Departmental interviews and at the Tribunal hearing and in consequence they had made inadvertent errors regarding their educational history. They said that [the applicant] relied on ‘the academic transcript submitted to DIAC’. They said that while they had been in Lebanon [the applicant] and [Mr A] had gone out together while remaining cautious not to attract any adverse inferences from their conduct. On 30 January 2012 [the applicant]’s representatives produced a CD containing photographs of [the applicant] and [Mr A] together in their room in their underwear. [In] February 2012 they produced letters from [Mr C] and [Mr D] claiming that they knew that [the applicant] and [Mr A] were in a homosexual relationship on the basis of their behaviour.
At a further hearing held on 11 April 2012 [the applicant] confirmed that he claimed that he and [Mr A] were homosexual partners. The Tribunal took oral evidence from [Mr C] and [Mr D]. [Mr C] said that he was homosexual himself, that he was also from [Village 1], and that he had met [the applicant] at [Venue 1] three or four months prior to the hearing. [Mr D] said that he too was from [Village 1] and that he too was homosexual but that he did not want anyone to know. He confirmed that he believed that [the applicant] and [Mr A] were in a homosexual relationship based on their behaviour. The Tribunal affirmed the decision under review on 1 May 2012.
As referred to above, in his current application, lodged [in] November 2013, [the applicant] said that he relied on the complementary protection provisions and that he feared suffering significant harm due to the current economic, political and social situation in Lebanon. He referred to a fear of Hezbollah and pro-Syrian forces because he was a Sunni Muslim and he said that a detailed statement would be provided in due course. No such statement was ever provided.

[The applicant] was interviewed by the primary decision-maker in relation to his current application [in] February 2015. He said that there was nothing in his current application which he wanted to change. He confirmed that he was a Sunni Muslim but he said that he did not attend a mosque. He said that he was only very rarely in contact with his [sibling] in Australia because his [sibling] was not happy with him. He said that he had not been in contact with his family for two years. He said that his family had wanted him to go back to Lebanon and to get married. He said that his father was a retired [occupation] and he had a [business].
[The applicant] said that he had come to Australia because of his love relationship with his partner [Mr A]. He said that he had come to Australia on a [temporary] visa just as a means to get here. He said that if he returned to Lebanon he would be killed by his family, the religious community or the government. He said that he had always felt different and that he had realised that he had been attracted to men when he had been [age] or [age] years old. He said that then he had got to know [Mr A] and after a while they had been frank with each other and they had established their relationship. He said that he had been aged around [age] years old at the time. He said that he had not told anyone except [Mr A] about his sexuality.
[The applicant] said that his family had found out about his homosexuality roughly in 2012. He said that he was not sure how they had found out. He said that he had never thought of telling them himself because there was no tolerance and they would not accept it at all. He said that their society was a religious society and he said that the punishment was being thrown from a high place. He said that Article 534 of the Penal Code applied as well. He said that he did not think that his family would have told anyone else about his homosexuality. He said that wherever he went they would find him and that they had already told him that they were going to kill him.
[The applicant] said that he and [Mr A] had not allowed anyone to be aware of their relationship when they had been at school. He said that they had had limited time because it had been a small village. He said that [Mr A] had been one grade above him and had been a better student than him so [Mr A] had visited him to help him with [subjects]. He said that in the beginning their families had thought that this was normal but when they had seen them being too close to each other they had started having suspicions and they had started to try to keep them apart. He said that this had been when they had both still been at high school.
[The applicant] said that he and [Mr A] had decided to come to Australia because they could not live in Lebanon in freedom and security. He said that his [sibling] had been here which had made it easier for him and he said that his father had accepted the idea. He said that their respective families had allowed them both to come to Australia because they had not had serious doubts or suspicions about their relationship. He said that he did not have any evidence from Lebanon but they were living together in Australia. He said that he had confided in the two witnesses who had appeared before the Tribunal about being homosexual. He said that he had not personally experienced any harm or discrimination because of his homosexuality in Lebanon but this had been because no one had known. He said that he had not engaged with the gay community in Lebanon because they were always ‘under the surface’. He said that he had not been to any gay bathhouses, cinemas or nightclubs in Lebanon. He asserted that such places did not exist in Lebanon. He said that he had heard of gay people being killed and he had seen how the community despised them, on television as well.
[The applicant] said that he had met a man named [Mr B] at a club. He said that [Mr B] was the head of a society. He said that he did not have any gay friends in Australia because he tried to conceal himself. He said that he had not visited gay venues because he was scared that people from a Lebanese background might see him. He said that he was scared what would happen if he were sent back home. He suggested that he would be detained at the airport. The primary decision-maker put to him that in large cities like Beirut people had more tolerant attitudes. [The applicant] denied this. He said that this was what the media tried to show but on the ground it was different.
The primary decision-maker referred to the fact that in his current application [the applicant] had talked about the current economic, political and social situation in Lebanon. [The applicant] said that Lebanon was a war zone, there was no work and all the Syrians were in Lebanon now. He said that people coming from Syria were getting the jobs because they were cheap labour. The primary decision-maker put to [the applicant] that country information indicated that Lebanon was relatively safe for homosexuals - there were no reported killings as he had claimed - and that if he were to live discreetly with his partner as he was doing here he would not come to harm. After a break to consult his representative [the applicant] said that his family’s situation was very difficult because of the arrival of the Syrians and the presence of Hezbollah. He said that he had been here for three years without work. He said that his father had had to spend a lot of money for him to come here and he had not repaid any of this money.
Discussion of the issue
At the hearing before me on 8 December 2016 I referred to the fact that in his current application [the applicant] had said that he would submit a detailed statement of his claims in due course but that it did not appear that such a statement had ever been submitted to the Department. [The applicant] said that he had done this and his representative had sent this. I noted that there was a statement from [Mr A] on the Department’s file in relation to [Mr A] but there was no similar statement from [the applicant] on his file. I suggested that [the applicant] should talk to his representative after the hearing about whether he wanted to present this statement to the Tribunal now. No such statement from [the applicant] was produced to the Tribunal.
I asked [the applicant] what he feared would happen to him if he went back to Lebanon now. [The applicant] said that the law prevented them from being the way they were. He said that his family were waiting for him to come back and they were pressuring him to come back because ‘they don’t accept that’. He said that the religion did not allow it and they would kill you if they found out. He confirmed that he was alluding to the fact that he was homosexual. I asked him if he feared returning to Lebanon for any other reason. [The applicant] said that his family had paid money for him to come here to study. He said that he had not been up to it and he had not been responsible. He said that they knew that he was homosexual. I asked him how the fact that his family had paid money for him to come here was relevant. [The applicant] said that they had wanted him to be educated and to be a better person. I asked him if this gave rise to any fear that something would happen to him if he went back to Lebanon. [The applicant] said that the main reason for his fear was being homosexual: they were not accepting this at all.
I noted that [the applicant] had referred in his application to a fear of Hezbollah and pro-Syrian forces because he was a Sunni Muslim. [The applicant] said that the trouble had been going on at the same time as he had made his application. I asked him if he had particular fears for his own safety in the context of this conflict. [The applicant] said that if someone from Daesh knew about that they would kill him. He confirmed that once again he was referring to being homosexual. I put to him that this had nothing to do with his fearing Hezbollah and pro-Syrian forces because he was a Sunni Muslim. [The applicant] said that it was not because he was a Sunni Muslim: it was because everyone in Lebanon would not accept him because he was homosexual.
I noted that [the applicant] had also referred in his application to the current economic, political and social situation in Lebanon. [The applicant] said that Lebanon was a poor place. I asked him if this gave rise to any particular fears for him returning to Lebanon. [The applicant] said that if he went back to Lebanon his family already knew he was like this. He confirmed that once again he was referring to being homosexual. I noted that in his current application he had not made any reference to being homosexual at all so I was trying to clarify what claims he was actually making. [The applicant] said that the application he was making was that he was homosexual, that he had a partner and that they lived together. He said that he could not survive over there by himself, he could not be with his partner over there and he could not be away from his family. I put to him that he had said that his family wanted to kill him. [The applicant] said that this was true. He said that they would kill him because in their religious belief they thought that if they did not kill him they would be punished. He said that socially people would not accept it.
I referred to the fact that [the applicant] had been interviewed in relation to his application in February 2015 and I asked him if anything had happened since then which he thought was relevant to his application and which he wanted to tell me about. He said that nothing had happened except that he and his partner were living together. He confirmed that they were still living in [suburb]. I asked him how he was supporting himself financially. He said that he was borrowing money from friends in the Lebanese community. He said that they were getting money from his partner’s [relative] who knew that his partner’s parents wanted to kill his partner although he did not know why they wanted to kill him. [The applicant] said that he was not in contact with his own family in Lebanon. He said that he had last contacted them a long time ago, more than two years ago.
I asked [the applicant] when he had first come to realise that he was homosexual. He said that he could not remember exactly. He said that he used to see his partner and he had felt intrigued by him. He said that this had been before they had been at the same school. He referred to the fact that they had lived in the same village and that it was not a big village. I referred to his evidence that he was in a homosexual relationship with [Mr A] and I asked him when this relationship had begun. [The applicant] said that as he had mentioned he had seen [Mr A] in the village and he had liked him. He said that then they had had a frank conversation. He said that he had had a little bit of a feeling that [Mr A] was like him. I asked him when he thought he had had this frank conversation with [Mr A]. [The applicant] said that he had maybe been aged [age]. He said that they had not been at the same school at the time. He said that he had been in Year [grade].
I asked [the applicant] what school he had been at in Year [grade]. He then said that in Year [grade] they had been together in the same high school but in Year [grade] they had not been. He said that the frank conversation had taken place in Year [grade] and that he had been [age] years old. He then said that there was something wrong and that what he had said first had been correct. He said that the frank conversation had taken place in Year [grade] when they had been in the same school. He said that they had not been in the same class at school. He said that it was correct that he had been [age] years old at the time. I asked him how they had met at the school if they had not been in the same class. [The applicant] said that [Mr A] had been repeating a few classes. He confirmed that [Mr A] was better at [certain subjects] than him but he said that maybe [Mr A] had not been good at other subjects. He said that they had come to know each other in the same village, playing together.
I asked [the applicant] when his relationship with [Mr A] had become a sexual relationship. [The applicant] said that this had been one year after the frank conversation to which he had referred. He said that they had both still been at school at the time. I put to him that previously he had said that the sexual relationship had only begun after they had completed Year 12. [The applicant] asked when he had said this. I put to him that when he had been interviewed in 2011 he had said that the sexual relationship had only begun when he had been [age] years old and he and [Mr A] had been studying [a course] in Tripoli. I put to him that when they had both appeared before the Refugee Review Tribunal they had both said that the sexual relationship had only begun after they had both completed Year 12. [The applicant] said that he could not remember. I put to him that I thought that he might remember something like this. [The applicant] said that he did not know.
I asked [the applicant] what sorts of things he and [Mr A] had done together while they had been in Lebanon. He said that they had spent lots of time together: they had walked together, they had played together and they had studied. I asked him if he could give me a little more detail. He said that they had gone for walks together and they had listened to music. He said that mostly they had studied together. I referred to the fact that when he had been interviewed in 2011 he had said that they had studied together but that he had not been able to meet [Mr A] outside the school because he had been afraid that someone would see them. [The applicant] said that they used to meet but they had been careful because they had not wanted anyone to see them. I put to him that he had just been telling me that they had gone out together and they had played together. [The applicant] said that going for walks together was normal but when they had wanted to meet and do something together this was different.
[The applicant] confirmed that he and [Mr A] had rented a place together when they had been studying together in Tripoli. I put to him that when he had been interviewed in 2011 he had said that they had not been able to go out on the street together. [The applicant] said that of course they could not express their feelings in the street. I put to him that he had not been talking about expressing his feelings: he had said that they had not been able to go out on the street together at all. [The applicant] said that he could not remember saying this. I put to him that [Mr A] had said when he had been interviewed in 2011 that they had gone to Tripoli regularly for shopping and to do other things together. [The applicant] said that it was true that they had gone to Tripoli every now and then. I put to him that this was different from his saying that he had not been able to meet [Mr A] outside the school because he had been afraid of them being seen together. [The applicant] said that they had not been able to be seen in the open doing things to each other, for example touching each other. I put to him that we were not talking about this: we were talking about them doing things together. [The applicant] said that this was normal. He said that maybe they had been afraid. I put to him that his evidence and [Mr A]’s evidence did not suggest that they had been afraid of being seen together.
I asked [the applicant] what sorts of things he and [Mr A] did together outside their home in Australia. He said that they spent time together, they went and smoked shisha, they listened to music and they went to gay clubs, but not much. He referred to [Venue 1]. I put to him that at the interview in 2011 he had said that they did not go to gay clubs or any venues of that sort because they were concerned that someone might see them. [The applicant] said that this was true but they had gone after 2011. He agreed that they had already started going to [Venue 1] in 2011. He initially said that this was a mixed venue but he then said that it was for homosexuals. I put to him that this suggested that they had not in fact been afraid of being seen. [The applicant] said that the fear was still there.
I put to [the applicant] that, once again at the interview in 2011, he had said that there were a lot of Lebanese living in the suburb where they lived and that a lot of them came from their village, [Village 1], but he and [Mr A] were still living in the same suburb which suggested that they were not worried about the fact that there were a lot of people from [Village 1] who might see them together. [The applicant] said that they did not let people notice anything different. I noted that he had said that somebody had told his family in Lebanon that he was in a homosexual relationship so clearly someone had reached this conclusion. [The applicant] said that there must be someone who knew.
I put to [the applicant] that, as he had been told at the interview in 2011, someone had telephoned the Department to say that they knew that he was making an application for a protection visa on the basis that he was homosexual but that this claim was completely false and he was not homosexual at all. [The applicant] said that maybe the same person who had called the Department had called his family as well. I put to him that this suggested that there was someone in the Lebanese community who knew that he was applying for a protection visa on the basis that he was homosexual. I put to him that he had said that the only people who knew this were the two friends who had given evidence to the Refugee Review Tribunal and [Mr B] who had come to the hearing before me to give evidence. [The applicant] said that this was true. He said that he did not know who had passed on this information. I put to him that he appeared to be suggesting that nobody could possibly know but somebody clearly did know because somebody had made this telephone call. [The applicant] said that maybe someone had seen him at the hotel. I put to him that he had said that he had only started going to the hotel in 2011. [The applicant] said that this was true. He said that he had no explanation with regard to who had passed on this information.
I asked [the applicant] if he had friends in the gay community in Australia. He said that there were a few but he said that he was referring to the two friends who had given evidence to the Refugee Review Tribunal and [Mr B]. I put to him that [Mr A] had said that they had many gay friends who were not Lebanese. [The applicant] said that maybe [Mr A] had meant people whom they had seen once and to whom they had talked a little bit but these people were not close friends. I put to him that [Mr A] had said that they had an inner circle of gay friends who were mainly non-Lebanese. [The applicant] said that he did not know what [Mr A] had meant by this at all.
[The applicant] asked that the Tribunal take evidence from [Mr B] who said that one night in 2011 - he thought in February 2011 - he had seen [the applicant] with his partner in [Venue 1], a gay club. He said that they had been talking in Arabic and he had introduced himself to them. He said that they had been a little bit shocked because they had thought that there were no Arabic-speaking gays except them. He said that they had not been 100 per cent comfortable and they had just given him their first names. He said that he had met them a couple of weeks later just by accident and they had been a little more comfortable. He said that he had given them his number and [Mr A] had given him his number. He said that they had stayed in touch after this.

[Mr B] referred to the fact that he was [from] an Arab gay group [in] Melbourne and he said that he had always told [the applicant] and [Mr A] when this group had been holding an event like a party. He said that they had come to a couple of events. He said that he saw them from time to time. He said that the last time had been [in] December [and] they had gone to a place [where] they had had sweets, just [the applicant] and his partner and him. He said that before this they had met for dinner occasionally. He said that he had never been to their house and they had never visited him at his house either.
[Mr B] confirmed that he had known them for five years and that they would meet casually, sometimes once a month, sometimes once in two months. He confirmed that from his contact with them he believed that they were in a genuine and committed relationship and that they were loving and caring to each other. ([Mr B] also attended the hearing in relation to [Mr A]’s application on 9 December 2016. He said that the only thing he wanted to add to the evidence he had given the previous day was that [the applicant] and [Mr A] were a bit stressed and worried in relation to their applications. He said that he had advised them to be patient and that everything needed time. In response to a question put by [Mr A]’s representative, [Mr B] repeated that, as he had said at the hearing the previous day, he had never visited [the applicant] and [Mr A] at their home.)
I asked [the applicant] if there was anything further he wanted to say before I closed the hearing. He said that there had been lots of mix-ups with the dates. He said that it had been over 10 years now and he asked how I could expect a person to remember and concentrate. He said that there had been lots of pressure and fear over there and here as well. He said that it had become bigger over here. He said that the parents and the community put pressure on you. He said that he and [Mr A] were not allowed to work and they were living in poverty like beggars.
At the conclusion of the hearing before me on 9 December 2016 in relation to [Mr A]’s application, [the applicant]’s representative made an oral submission in relation to both their cases. He said that given the subjective nature of the claims the Tribunal could ascribe appropriate weight to the evidence that was before the Tribunal. He said that whilst there had been a number of inconsistencies he submitted that these inconsistencies were trivial and inconsequential to the underlying issue of whether or not the applicants were currently homosexual and remained in an exclusive homosexual relationship. He submitted that the Department and the Tribunal had asked the applicants to recall details in relation to events which had taken place when the applicants had been of relatively young age, both in a state of fear and confusion, and which had purportedly taken place a long time ago.
[The applicant]’s representative submitted that the inconsistencies in relation to these events should not outweigh the factual foundations presented by the applicants to the Tribunal, namely the direct, supporting evidence of the witnesses, [Mr B] and [Mr E], the corroborative evidence of the applicants themselves, the constancy and span of time since the very same claims had initially been made by the applicants, and the persistent and unchanging nature of the relationship despite the length of time that had now passed. He said that six years had passed and the applicants had remained in the same exclusive relationship and had cohabited together over that period. He submitted that this provided cogent evidence for the legitimacy of the relationship.
[The applicant]’s representative submitted that if the applicants were not genuinely gay, with a genuine commitment to each other, given the number of times their applications had been refused they would surely have given up on such futile endeavours. He suggested that they could perhaps have pursued other relationships including heterosexual relationships. He submitted that they had stuck to it, that they considered themselves as a married couple and that the evidence which they had presented had been predominantly consistent over a substantial period of time. I noted that [Mr E] had not given evidence in these cases although I noted that he had come to the Tribunal with the applicants since I had seen him outside the hearing room.[2] [The applicant]’s representative indicated that he would withdraw the contention about [Mr E].
Conclusions
[2] I was able to recognise [Mr E] because he has appeared as a witness for a number of other applicants represented by the same representative as [the applicant].
As referred to above, in his oral submission at the conclusion of the hearing on 9 December 2016 [the applicant]’s representative submitted that any inconsistencies in the evidence of [the applicant] and [Mr A] were trivial and inconsequential to the underlying issue of whether or not they were currently homosexual and remained in an exclusive homosexual relationship. He submitted that the Department and the Tribunal had asked the applicants to recall details in relation to events which had taken place when the applicants had been of relatively young age, both in a state of fear and confusion, and which had purportedly taken place a long time ago. With respect I do not agree that the inconsistencies in the evidence can be characterised as trivial and inconsequential. While I accept that both [the applicant] and [Mr A] have been asked about matters which now date back over a decade, I do not consider it inappropriate in a case like the present to question applicants about matters such as when they first came to realise that they were homosexual and about key events in the history of their relationship. I accept that both applicants were still relatively young at the time and that, if their claims were accepted, their experiences would have been affected by community attitudes towards homosexuality and the need to conceal the true nature of their relationship from their families and the community. However I do not accept that these factors explain the inconsistencies in the evidence in this case.
As referred to above, [Mr A] and [the applicant] have said that they both come from the same village, [Village 1], and that they both attended high school in a neighbouring [village]. There is a [difference] in their ages and at the hearing before me [the applicant] initially said that the ‘frank conversation’ which he had said marked the beginning of their relationship had been when he had maybe been aged [age] and had been in Year [grade]. He said that they had not been at the same school at the time. After I asked him what school he had been at in Year [grade] he said that in Year [grade] they had been together in the same high school but in Year [grade] they had not been. He said that the frank conversation had taken place in Year [grade] and that he had been [age] years old. He then said that there was something wrong and that what he had said first had been correct. He said that the frank conversation had taken place in Year [age] when they had been in the same school. He said that it was correct that he had been [age] years old at the time. He said that he and [Mr A] had not been in the same class. After I asked him how they had met if they had not been in the same class he said that [Mr A] had been repeating a few subjects.
As referred to above, when [the applicant] was interviewed by the primary decision-maker in relation to his first application he said that he and [Mr A] had met because they had been in the same class at school. He said that they had declared their feelings for each other when he had been [age] years old and they had been in the same class in Year [grade]. At the hearing before the Refugee Review Tribunal on 4 November 2011 he said that he and [Mr A] had been in the same class in Year [grade] and that their relationship had started when they had been in Year [grade]. When he was interviewed by the primary decision-maker in relation to his current application he said that they had been frank with each other and had established their relationship when he had been aged around [age] years old. For his part [Mr A] told the Refugee Review Tribunal that he had declared his feelings for [the applicant] when he had been [age] years old and in Year [grade] but at the hearing before me he said that he had confessed his feelings towards [the applicant] when he had been [age] years of age and [the applicant] had been around [age]. He said that he had been in the first year of Year [grade] and [grade] at the time. (The interpreter explained that Years [grade] and [grade] were spread over three years in Lebanon.)
[Mr A] has said that he finished Year 12 in [year]-[year] and [the applicant] has said that he finished Year 12 in [year]-[year]. At the hearing before me [the applicant] said that his relationship with [Mr A] had become a sexual relationship one year after the frank conversation to which he had referred and that they had both still been at school at the time. As I put to him, when he was interviewed by the primary decision-maker in relation to his first application in 2011 he said that the sexual relationship had only begun when he had been [age] years old and he and [Mr A] had been studying [a course] in Tripoli. As I also put to him, when they both appeared before the Refugee Review Tribunal they both said that the sexual relationship had only begun after they had both completed Year 12. [The applicant] said that he could not remember. After I put to him that I thought that he might remember something like this he said that he did not know. For his part [Mr A] said that he had not been completely together at the first hearing before the Refugee Review Tribunal and that he had been under pressure. When he was interviewed by the primary decision-maker in relation to his first application he said that he had been [age] and [the applicant] had been approximately [age] when they had first had sex and when he was interviewed by the primary decision-maker in relation to his current application he again said that he had been [age] when he and [the applicant] had first had sex together. At the hearing before me he said that their relationship had become a sexual relationship when he had been [age] years old and [the applicant[ had been about [age] and that they had both still been at school at the time.
As referred to above, at the conclusion of the hearing before me [the applicant] said that there had been lots of mix-ups with the dates. He said that it had been over 10 years now and he asked how I could expect a person to remember and concentrate. He said that there had been lots of pressure and fear over there and here as well. As I have said I accept that a decade has gone by since these events and I also accept that some variation is to be expected when people have to recount the same events on more than one occasion. However I consider that the inconsistencies in [the applicant]’s and [Mr A]’s evidence with regard to when they claim their relationship began, whether they were in the same class in school at the time, when their relationship became a sexual relationship and whether they were still at school at the time or whether they had both left school by that time all cast doubt on whether they are telling the truth about their relationship.
A further problem I have with their claims is that (as referred to in the decision under review) they have said that their respective parents were suspicious about their relationship and tried to separate them. However [the applicant] has said that he and [Mr A] rented a place together when they were studying [a course] together in Tripoli and that his family then paid money for him to come here to study. He has said that the fact that they were living together did not raise suspicion because it was normal for two men to share a room but I consider that if their families had been suspicious about their relationship, as they have claimed, they would hardly have agreed to them living together in a room in Tripoli nor to [the applicant] coming to Australia where [Mr A] had gone four months previously.
I accept that [the applicant] and [Mr A] have been sharing a room since [the applicant] arrived in Australia but I consider that this is perfectly consistent with them being friends from the same village trying to keep costs down. In his oral submission at the conclusion of the hearing on 9 December 2016 [the applicant]’s representative stressed the fact that they had maintained these arrangements for a very long time and that they had persisted in claiming to be in a homosexual relationship despite their claims being repeatedly rejected. However I do not accept that such persistence logically supports the conclusion that their claims are true. [The applicant]’s representative suggested that they could have abandoned their claims and pursued heterosexual relationships instead but, as he must realise, it would have raised further questions about their credibility if they were to have abandoned their claims to be homosexual at this late stage. [The applicant]’s representative referred to the evidence given by [Mr B] and I have also taken into account the evidence given by [Mr C] and [Mr D] and the other evidentiary material which was produced to the Department and the Refugee Review Tribunal. However I do not consider that this evidence outweighs the problems I have with the evidence of [the applicant] and [Mr A] themselves about their relationship which I have outlined above.
In the course of the hearing before me I referred to the information which was provided to the Department at the time when [the applicant] and [Mr A] made their first applications for protection visas to the effect that they were claiming to be homosexual in order to obtain permanent residence but that in actual fact they were not homosexual. As I indicated, I did so only because it appears to me that the fact that this person knew of the claims they were making calls into question their evidence that the only people who know of their relationship are the three people who have given evidence on their behalf. At the hearing in relation to [Mr A]’s application on 9 December 2016 their representative submitted that they could not be expected to respond without knowing the identity of the person who had given this information to the Department. Since it is impossible to know whether this person had some motive for providing false information to the Department I have given no weight to this information. Both [the applicant] and [Mr A] have also claimed that members of the Lebanese community here have told their families in Lebanon that they are living together in a homosexual relationship in this country but there is no independent corroboration of these claims.
Having regard to the problems which I have with the evidence of [the applicant] and [Mr A] about their relationship as outlined above, I do not accept that they are homosexual as they claim, nor that they are in a homosexual relationship with each other. I consider that they are simply two young men sharing a room. I do not accept that they have ever been regarded by their families or the wider community in Lebanon (or indeed the Lebanese community in Australia) as being homosexual or in a homosexual relationship with each other. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will be killed or that he will otherwise suffer significant harm because of his claimed homosexuality or because of any suspicion that he and [Mr A] are in a homosexual relationship with each other.
As referred to above, in his current application [the applicant] said that he feared suffering significant harm on the basis of the current political, economic, and social situation in Lebanon and that he feared Hezbollah and pro-Syrian forces because he was a Sunni Muslim. When he was interviewed by the primary decision-maker [the applicant] said that Lebanon was a war zone, there was no work and all the Syrians were in Lebanon now. He said that people coming from Syria were getting the jobs because they were cheap labour. He said that his family’s situation was very difficult because of the arrival of the Syrians and the presence of Hezbollah. At the hearing before me, when I referred to the claims which [the applicant] had made about his fear of Hezbollah and the pro-Syrian forces, he said that the trouble had been going on at the same time as he had made his application. When I referred to his claims about the current political, economic, and social situation in Lebanon he said that Lebanon was a poor place but he emphasised that he was applying for protection on the basis that he was homosexual.
I accept that Akkar is on the border with Syria and that there is a low risk of Sunni communities close to the border being caught up in cross-border reprisal attacks by the Syrian authorities.[3] However I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm because he is a Sunni Muslim if he returns to his home in [Village 1] in Akkar. So far as the current political, economic, and social situation in Lebanon (and in particular the influx of people from Syria) is concerned, I consider that the risks to [the applicant] in this context are risks faced by the population of Lebanon generally and not risks faced by him personally and that they are therefore excluded from consideration under the complementary protection criterion in accordance with paragraph 36(2B)(c) of the Migration Act.
[3] DFAT Country Information Report - Lebanon, 18 December 2015, paragraphs 3.19 and 3.26.
Both when he was interviewed by the primary decision-maker and at the hearing before me [the applicant] referred to the fact that his family had paid a lot of money for him to come here to study and that he had not been up to it. While I accept that his family will be disappointed in him, he did not suggest that this circumstance gave rise to any risk that something would happen to him if he went back to Lebanon. He referred once again to his fear based on his claim to be homosexual. Having regard to my findings of fact above, therefore, I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Lebanon, there is a real risk that he will suffer ‘significant harm’ as defined in subsection 36(2A) of the Migration Act.
CONCLUSIONS
As explained above, I am only able to consider [the applicant]’s application under the complementary protection criterion. For the reasons given above I am not satisfied on the evidence before me that he is a person in respect of whom Australia has protection obligations under that criterion. I therefore find that he does not satisfy the criterion set out in paragraph 36(2)(aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. It follows that he is also unable to satisfy the criterion set out in paragraph 36(2)(b) or (c) of the Act. As he does not satisfy the criteria for a protection visa, he cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW

In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non citizen in Australia who is a member of the same family unit as a non citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

[2017] AATA 989

29 May 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction