1509374 (Refugee)

1509374 (Refugee) [2015] AATA 3521 (15 September 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509374
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Filip Gelev
DATE:15 September 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 15 September 2015 at 6:15pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Lebanon, applied for the visa [in] April 2015. The delegate refused to grant the visa on the basis that he did not believe that the applicant faces a real chance of persecution for reasons of his Sunni religion or a real risk of significant harm.
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 themself 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. 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’.
The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.
However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
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 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will face a real chance or real risk of harm on return to Lebanon for the reasons he claims or any other reasons. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant told the Tribunal at the hearing that he is on medication for depression and he takes it at night. He thought it might be called Vanza. The Tribunal asked whether it might be Avanza but the applicant was not sure.
The Tribunal gives the applicant the benefit of the doubt and accepts that he is on anti-depressants, Avanza and this may have affected his ability to recall past events.
The applicant also claimed that as a result of an incident he lost 40% of his memory. The Tribunal gives him the benefit of the doubt in relation to this issue as well.
He appeared lucid and able to understand and answer questions. The Tribunal finds that the applicant was able to give evidence and participate meaningfully in the hearing.
The Tribunal finds that the applicant’s ability to remember certain events, dates and other details was not impaired. For example, he told the Tribunal without any hesitation that the engagement party to [his first wife] took place [in] May 2008. The Tribunal finds that the considerable inconsistencies in the applicant’s evidence are due to his not being a witness of truth, not medical condition or acquire brain injury.
Identity and nationality
The applicant claims to have lost his Lebanese passport. On the basis of his written and oral evidence and his immigration detention ID card, and in the absence of any evidence to the contrary, the Tribunal finds that the applicant is a national of Lebanon and he is who he claims to be. Accordingly, the Tribunal has assessed the applicant’s claims for protection against Lebanon.
The applicant states that he does not have a right to enter and reside in any third country. There is no evidence to the contrary and, for the purposes of s.36(3), the Tribunal accepts his claims and find that he does not have a right to enter and reside in any third country.
Country information
The Allawi sect is one of Lebanon’s 18 officially recognised religious groups, and constitutes one of the country’s smallest Muslim minorities.[1] According to a 2009 DIAC paper on human rights in Lebanon which included advice on the Allawite community, the total number of Allawites is about 100,000-150,000. The religion is an offshoot of Shia Islam. Most Allawites live in the north of Lebanon, the Akkar region and the city of Tripoli.[2]
[1] US Department of State 2011, 2010 International Religious Freedom Report (July-December), 13 September, Section I < Accessed 17 April 2012
[2] DIAC Country Information Service 2009, Lebanon: Human Rights Paper, LBN16062009, June
Sectarian violence in Tripoli between the Allawite minority and the Sunni majority has been a regular occurrence for many years. In January 2007 and May-August 2008, violent clashes took place between Sunni supporters of March 14 coalition and Allawites. Allawites, who have strong ties to Syria and are aligned with Hezbollah, have, to some extent, become marginalised since Syria’s withdrawal from the country in 2005, and claim to have been threatened and harassed by the majority Sunnis in Tripoli.[3]
[3] DIAC Country Information Service 2009, Lebanon: Human Rights Paper, LBN16062009, June
An International Herald Tribune article dated 16 May 2008 describes Akkar and Tripoli as “Sunni-dominated regions…where fundamentalists operate”: In May 2008, in other Sunni-dominated regions, in the central part of the eastern Bekaa Valley, the northern port city of Tripoli and the adjacent Akkar and Dinniyeh regions, where fundamentalists operate, Sunnis revolted and seized territory, attacking fellow Sunnis allied to the Hezbollah-led opposition and fighting the Allawite community.[4]
[4] ‘Lebanon Sunnis bitter in Lebanon power shift toward Shiite Hezbollah’ 2008, International Herald Tribune, 16 May – Accessed 20 June 2008.
Although two Allawis were re-elected to Lebanon’s parliament in June 2010, [5] an article in al-akhbar maintains that Allawites continue to be underrepresented in government and the civil service. The article states that unlike other sects Allawites have not been represented by a Lebanese government since independence. No Allawi has served as a minister in Lebanon’s history. There are no Allawi governors, mayors, lawyers, or high ranking military officers. Senior and mid-level public service positions are distributed among the sects by agreement. There do not appear to be any Allawites in senior public-service positions in Lebanon[6] Their first representatives in parliament only appeared after the first elections in 1992 following the Taif Accord, when they were assigned two seats.[7] The two MPs are from the anti-Syrian Future Movement. Pro-Syrian Alawites say that these MPs received most of their votes from Sunni, rather than Allawi voters, and they are therefore not representative of the majority of Allawites.[8]
[5] US Department of State 2011, Country Reports on Human Rights Practices for 2010 – Lebanon, 8 April, Section 2(d) < Accessed 17 April 2012
[6] DIAC Country Information Service 2008, Country Information Report No. 08/23 – CIS Request No. LBN9260 – Hizb al Arabi al Democrati and Alawi Muslims, (sourced from DFAT advice of 14 March 2008), 17 March
[7] Lebanon’s Alawi: A Minority Struggles in a Nation of Sects’ 2011, al-akhbar, 8 November < Accessed 17 April 2012
[8] DIAC Country Information Service 2008, Country Information Report No. 08/23 – CIS Request No. LBN9260 – Hizb al Arabi al Democrati and Alawi Muslims, (sourced from DFAT advice of 14 March 2008), 17 March.
As noted above, most Alawites live in Tripoli’s Jabal Mohsen area, which is only some 4 km².[9] It is surrounded by Sunni areas to the west (Bab al-Tabbaneh[10]) and to the south (Ba’ear and Ebbeh).[11] Jabal Mohsen has had a long-standing feud with the Sunni district of Bab al-Tabbaneh.[12] These two neighbouring communities are divided by Syria Street.[13] According to some estimates there are up to 60,000 Allawites in Tripoli.[14] According to others, the number is around 35,000.[15] Whatever the true number, they form a small minority in this city of 500,000.[16] Most other residents of Tripoli are Sunnis and supporters of the Future Movement (March 14 Alliance). Many Allawites are aligned with the pro-Syrian political parties and they feel threatened by the anti-Syrian (Sunni dominated) Future Movement. Allawites claim that they are subjected to verbal harassment and beatings from Sunnis aligned with the Future Movement, and that the Internal Security Forces (ISF) do not help them but instead sometimes detain and question them, sometimes for several days, without reason.[17]
[9] DIAC Country Information Service 2008, Country Information Report No. 08/23 – CIS Request No. LBN9260 – Hizb al Arabi al Democrati and Alawi Muslims, (sourced from DFAT advice of 14 March 2008), 17 March.
[10] Alternative names for this neighbourhood include Bab Al-Tabbanah and Tabbaneh.
[11] Kazimi, N 2008, ‘Sunnis and Alawites Clash in Northern Lebanon’, Talisman Gate weblog, 12 May < Accessed 17 April 2012
[12] ‘LEBANON: Displaced families struggle on both sides of sectarian divide’, 2008, IRIN, 31 July, < Accessed 17 April 2012
[13] Fisk, R 2008, ‘Al-Qa’ida sends its warriors from Iraq to wage jihad in Lebanon’, The Independent, 15 August, < Accessed 17 April 2012
[14] Yazbeck, R 2008, ‘Return of the Pink Panthers’, Middle East Monitor, Vol. 3, No. 2 < Accessed 2 May 2012.
[15] “Syria crisis: Lebanon sucked into Syria crisis”, BBC News, 29 June 2012, accessed at accessed on 15 May 2013.
[16] “In Lebanon, a proxy battle for Syria”, MinnPost, 5 May 2013, accessed at on 15 May 2013.
[17] DIAC Country Information Service 2008, Country Information Report No. 08/23 – CIS Request No. LBN9260 – Hizb al Arabi al Democrati and Alawi Muslims, (sourced from DFAT advice of 14 March 2008), 17 March.
Background
Based on the applicant’s oral and written evidence, the Tribunal finds that the applicant is a Sunni Muslim, born in a town south of Tripoli, but grew up and lived in Tripoli up until the time he left for Australia in February 2009. His whole family – parents, four brothers and grandparents – remain in Tripoli, Lebanon.
The applicant’s migration history is set out below.
November 2006: According to the applicant’s “movement records”, he first came to Australia on a visit in November 2006 and remained for approximately three months.
February 2009: The applicant was sponsored in connection with a [Partner] visa by [his first wife]. That visa was granted [in] February 2009 and the applicant arrived in Australia [in] February 2009.
April 2009: As evidenced by the marriage certificate on the Department file, the parties married [in] April 2009.
July 2009: [In] July 2009, the applicant informed the Department that his relationship with the sponsor had ended. [Later in] July 2009, the applicant lodged an application for [Partner] visa Subclasses [specified] on the basis of family violence committed by the sponsoring partner.
August 2010: The applicant and [his first wife] divorced.
February 2011: the Department of Immigration refused the grant of one of the two Partner visas for which the applicant had applied in July 2009 (the application for the visa Subclass [number] was refused).
April 2012: the decision to refuse the application for a visa Subclass [number] was affirmed by the Migration Review Tribunal.
May 2012: The applicant left Australia [in] May 2012 and returned [later in] May 2012. While in Lebanon, the applicant applied for another Partner visa ([Subclass number]) on the basis of a relationship with a different person [his second wife].
September 2012: In the meantime, he applied for judicial review of the Migration Review Tribunal’s decision [in] April 2012. [In] September 2012 the Federal Magistrates Court dismissed the judicial review application.
December 2012: [In] December 2012, the applicant wrote to the Minister for Immigration and asked that the Minister exercise his discretionary power under s.351 of the Act. [In] January 2013 the applicant was advised that the case would not be brought to the Minister’s attention.
November 2013: [In] November 2013 the applicant was taken into immigration detention.
December 2013: [In] December 2013 the applicant was granted a Bridging Visa E.
June 2014: the application for a visa Subclass [number] lodged in Beirut in May 2012 was refused.
August 2014: [In] August 2014 the applicant’s Bridging visa was reinstated when it transpired that a decision needed to be made in relation to the visa Subclass [number] which had been lodged together with the visa Subclass [number] [in] July 2009.
January 2015: [In] October 2014 the visa Subclass [number] was refused, but he was not properly notified until [in] January 2015.
February 2015: His Bridging visa E ceased and he became unlawful again [in] February 2015.
March 2015: [In] March 2015 he was taken into detention where he has remained since.
Claims
The applicant claims that in Lebanon, before he came to Australia in 2009, he joined a Sunni militia – the Salafis. He quit the militia and had to go into hiding until he was able to leave for Australia in February 2009.

In 2012 when he returned to Lebanon in order to lodge a Partner visa application to Australia, the applicant says he was kidnaped by Allawites.
He claims that in Australia he changed his religion under the influence of [his second wife]. He is now a Catholic.
The applicant claims to fear persecution from (1) Salafis (Sunnis) because he quit the militia he was fighting with and because he is now a Christian; (2) Allawites/Shias because he is a Sunni and because he was involved in fighting in Tripoli; (3) his family because he is now a Christian.
2008-2009
In his application for protection, the applicant said that he joined a militia group (he did not identify it by name in the application) in 2008 so he had to leave the group and flee the country. In 2008, after he left the group he received information that his life was in danger and so he fled to a family friend’s home “on the other side of town”.
The militias was a Sunni militia engaged in fighting with Allawites who live in the Tripoli suburb of Jabal Mohsen.
At interview with the delegate, the applicant said that the group was Salafis and that he was with the group for some 3-4 months. At the hearing the applicant repeated that claim: he said he was with them for about 3 months, later on during the hearing he said 3-4 months.
He was asked why he had to leave the militia to which he belonged. He told the Tribunal that originally his role in the militia was to do first aid during the fighting. As a first aid person he was not armed and he did not shoot at people. After being there for about 3 months, one of the militia leaders told him to start using an AK-47 (semi-automatic weapon). He said this was the first time he had held a gun. He shot in the direction of a building where Allawites were located. His shoulder became sore. He did not like it and he did not want to kill anyone. He fired a few bullets from a magazine and then he decided that he would leave the militia. He left the gun on the ground and quit the militia immediately. He had to go into hiding so he went to a friend who had a house in the mountains near [Town 1]. When the Tribunal said that he previously said that he was in [Town 2 name variant] or [Town 2], he said it was the same location.
The Tribunal observes that according to Google maps the distance between the two is about [distance]; however, given that the applicant claimed that he was hiding in the mountains near [Town 1] or [Town 2], the Tribunal draws no adverse inference from the fact that these are two different towns.
Later on during the hearing the Tribunal asked the applicant more questions about his alleged association with one Tripoli’s Sunni militia. He claimed for the first time that he had been with the militia for some time before he had an engagement party with [his first wife]. He confirmed that the engagement party took place [in] May 2008. He said that during the time when she was in Lebanon – May to June 2008 – he took time off the militia. When she left Lebanon to return to Australia, he went back to the Salafis.
He was asked how long he was in hiding for before he came to Australia in February 2009. He said it was definitely no more than 2 months, because he clearly remembered the length of time during which he was paying double rent – he was paying rent in Tripoli and to his friend (near [Town 1]/[Town 2]).
The Tribunal pointed out that it followed that he would have been with the militia for some 6 months between the time when [his first wife] returned to Australia and the time when he went into hiding in December 2008. The applicant became quite confused and after giving contradictory evidence eventually conceded that he would have had to be with the militia for more than 3-4 months after [her] departure from Lebanon.
When asked to explain why he thought after shooting a gun for short time that he must leave the militia immediately and go into hiding, the applicant said that there were many cases like his where people who have left a militia get tortured or killed. The Tribunal said it was of the view that the country information did not support the proposition that armed militias would target former members and that, furthermore, the Tribunal would have expected incidents of this nature, if they did occur, to be reported. He said his life was cheap and if it happened to him it would not be reported.
The applicant claimed that he managed to travel from his friend’s house to the airport and departed Lebanon successfully in February 2009.
The Tribunal asked him whether the militia paid a visit to his family after he left the militia. He said nobody visited the family at that time to ask about his whereabouts. The Tribunal observed at the hearing that according to country information in September 2008, when the applicant was allegedly fighting with the Sunni militia, Saad Hariri helped to broker a reconciliation agreement,[18] and the level of violence came down, although incidents continued to be reported into 2009.[19] The applicant disagreed and said there is always violence in Lebanon.
[18] Schenker, D. 2008, ‘Stability in Lebanon Threatened, Again’, PolicyWatch, no. 1406, Washington Institute for Near East Policy, 2 October – Accessed 4 December 2008
[19] (‘Violence-filled Tuesday across Lebanon’ 2009, NOW Lebanon, 22 April – Accessed 19 August 2009
The Tribunal observed that the DFAT country information report states that Sunnis in the immediate vicinity of Syria Street in Tripoli are at high risk of harm, those in Bab Al Tabbaneh at moderate risk, and for Sunnis living everywhere else in Tripoli the risk is low.[20] The applicant said that he was in close proximity to these areas.
[20] DFAT Country Report Lebanon, 25 February 2014, at 3.36.
2012
The Tribunal asked the applicant about his return to Lebanon in May 2012, when he travelled to Lebanon in order to lodge a second Partner visa application.
The applicant said that because he is Lebanese he cannot travel to other countries without a visa and that was why he had to travel to Lebanon, even though he was fearful. The Tribunal expressed its scepticism that as a Lebanese national he would not have been able to get a visa to any other country. The Tribunal pointed out that, for example, Jehovah’s Witnesses travel to Cyprus in order to get married, because they are not a recognised religious minority.[21]
[21] RRT Research Response, LBN31718, 7 May 2007, accessed at on 11 September 2015.
The applicant then changed his evidence and said that his lawyer had advised him that he must lodge an application in Lebanon, not any other offshore location (Australian embassy). The Tribunal noted that its understanding of the law is that a Partner visa application can be lodged offshore, outside of Australia, in any country with an Australian embassy and there is no requirement to lodge in one’s country of nationality. The applicant insisted that he had been misadvised.
According to the visa application, the applicant was kidnapped on the second day after his return and he was detained for two days. He was “tortured, bashed” but managed to escape after two days.
The applicant told the delegate at the interview that in 2012, when he went to Lebanon to apply for a visa, he was kidnapped in Junnieh (or Juniyah), between Beirut and Tripoli. He said he thought that his friend – with whom he was staying – gave him away or betrayed him to the Allawites. He was tortured, his kidnappers hit him on the head, they broke his nose and one tooth. They said to him “you’re the enemy”, “where were you all this time”, “everyone has an end and this is your end”. They were waiting for someone (one of their leaders) to come and interrogate the applicant before killing him. The applicant managed to wrestle his hands free from the handcuffs behind his back. He went to the door and could hear there was no one near the room. He opened the door and ran. He said that as soon as he left the building, he was in a public space and they could not do anything to him out in the open in front of other people. He realised he had been detained in a town called [Town 2] near Tripoli. When asked if he sought medical treatment he said he was too afraid that he would be kidnapped and he remained in hiding.
At the Tribunal hearing the applicant gave evidence broadly consistent with his evidence at interview. The applicant said that he returned to Lebanon and he planned to stay with his friend in Junnieh. He said that he was kidnapped by unknown people on the first day back from Australia. The Tribunal said that according to his original application it was the second day that he was kidnapped. He said that was incorrect – it was definitely on the first day.
He told the Tribunal that he managed to free himself and escaped on the same day. The Tribunal noted that according to his written application, he was detained for two days. He said that was not true – he escaped on the same day.
The Tribunal put to the applicant at the hearing that the Allawites are a relatively small minority group in Lebanon, by some estimates only about 120,000 in all of Lebanon which has an estimated population of about 4 million. Further, the Tribunal noted that only about 40,000 Allawites live in Tripoli and there are some 500,000 Sunnis in the city. The Tribunal said that it might have some difficulty accepting (1) that Allawites are capable of knowing that the applicant is returning from abroad and sufficiently well organised to kidnap and kill people in Beirut; or (2) that they would be interested in him considering that he had never killed anyone and he had left the Sunni militia.
He said that they are very powerful because they have the support of Syria’s President Assad who is an Allawite himself, and of Shias in Lebanon. In so far as their interest in him was concerned, he said that the Allawites knew he had been with the Salafis, they did not know that he was not killing people while he was a member of the militia in Tripoli.
According to the visa application, after he left Lebanon “the group” – in the application he further specified that Alawites and Shias are the same – had come to his family home with a list of names of people who are “wanted” by the Allawites. His name was on the list. They asked his mother where he was and she just told them that he was away. At interview the applicant said this incident took place in October 2014.
He repeated this claim at the hearing. He said this was the only time that people had come looking for him since 2012. He told the Tribunal that he had a message on Facebook from [an] Australian-Lebanese community leader [named] which said that he had seen the applicant’s name on “the list” and the applicant cannot return to Lebanon. The Tribunal expressed its surprise that the applicant had not asked [the community leader] to provide something to that effect in writing to the Department of Immigration or the Tribunal. The applicant said [the community leader] had told him that he could not do anything to help the applicant because a Liberal government is in power. The Tribunal asked why there was nothing in writing from [the community leader]. The applicant said he could get something. The Tribunal said that it was up to him to present whatever evidence he had.
Conversion to Christianity
In relation to the applicant’s claim to be a Christian, he told the Tribunal what he had told the delegate – he considered himself to be a Christian, even though he has not been baptised, nor has he ever been going to church on a regular basis, nor has he been practising Christianity in any other manner.
He gave evidence that [his second] wife [named] took him to church and he spoke with a Father once. He said he could not remember the name of the priest. He could not remember when this was, but it was a long time before he was put into detention. He said he had accepted his second wife’s advice: she had told him that he should believe whatever he wants to believe and there is no need to be baptised.
When the Tribunal asked who he feared harm from in Lebanon, he said his family were not happy with him, but they would not kill him. They will say to him that he can choose his own path as long as he stays away from them. He claimed that he told them that he did not want anything to do with Islam anymore. He had a conversation with his grandfather and that led to a rupture in 2012; essentially the applicant is now an outcast.
At the hearing the applicant accessed his Facebook account and claimed to read and interpret into English a message (written in Arabic) from his mother to him:
You have to apply [for protection] as soon as possible because you are in danger and your family do not want to know you anymore, except me [the applicant’s mother].
I can’t stand in front of the family members and the Sunni group in Tripoli, the Salafis, and I cannot protect you.
Even though it seems rather implausible that the applicant’s mother would have had to spell out to the applicant that the Salafis were a Sunni group, the Tribunal gives the applicant the benefit of the doubt and accepts that he interpreter the message correctly, to the best of his ability. However, the Tribunal does not know in what context it was written. The applicant may have been asking his mother what might happen to him in the future if he were to become a Christian or marry a Christian woman in Australia. Alternatively, the applicant may have asked his mother to write this type of message for him to enhance his claims for protection in Australia. In light of the Tribunal’s serious concerns in relation to the applicant’s credibility (discussed further below), the Tribunal gives it little weight.
Credibility and delay in lodging application for protection
Towards the end of the hearing, the Tribunal raised credibility concerns with the applicant. The Tribunal advised him that because of the long delay of some 6 years between his entry in Australia in 2009 and the time when he lodged the application for protection; because of the inconsistencies in the evidence about 2008 (in relation to the length of time he spent with the militia) and 2012 (in relation to the circumstances of the kidnapping), and because his claims appeared not to be consistent with the independent country information about the precarious situation of Allawites, the Tribunal might find that he is not a credible witness. The applicant said that he was telling the Tribunal the truth.
At the hearing the Tribunal raised with the applicant the fact that he failed to mention his fears for more than six years. He said that at first he was relying on the Partner visa and he was certain he would be granted a visa. His lawyers had assured him of a positive outcome. When the Tribunal pointed out that his application was affirmed by the Migration Review Tribunal in 2012, he said that while in Australia he had become [drug dependent] and stopped caring; these issues were not on his mind. He also said that he did not know about protection visas for a long time.
The applicant said that he had mentioned his problems to one of the experts who wrote reports about the family violence, [Dr A]. The applicant said he did not know if the doctor had then included it in his reports. The Tribunal notes that according to the decision of the Migration Review Tribunal in relation to the applicant’s Partner visa application (case [number]) the applicant obtained a report and/or statutory declaration from a certain [Dr A]. The Tribunal has not read the report and it does not have before it any evidence that the applicant disclosed his alleged fears up until he was detained for a second time in March 2015.
Even if the Tribunal were to accept that the applicant was misled by the representative who was assisting him with the first Partner visa application and he thought that he was guaranteed to obtain a Partner visa and that subsequently the applicant became a drug addict, six years is a very long period of time.
The applicant has shown an ability to pursue applications at primary, merits review and judicial review stages and he appeared relatively well informed about Australian migration law. In addition, in December 2012 the applicant asked the Minister for Immigration to exercise his power under s.351 of the Act and grant the applicant a visa to remain in Australia when the merits review of the Partner visa application (allegedly promised by his representative) failed to materialise. This was only a few months after the applicant had returned to Lebanon where he had allegedly been kidnapped, tortured and almost killed. There is no evidence before the Tribunal that the applicant mentioned in this ministerial request anything about his alleged fears of returning to Lebanon.
The Tribunal finds that the applicant is not a witness of truth has made up his claims of past harm in an attempt to prolong his stay in Australia. The Tribunal considers that if the applicant had indeed been in a Sunni militia in 2008, he would have been better able to remember how long he was in it. The Tribunal is not satisfied that the applicant would not have been able to recall whether he was in the militia for 3-4 months or about 12 months.
Similarly in so far as the claim of harm in 2012 is concerned, the Tribunal considers that the applicant would have remembered whether he was kidnapped on the day he arrived in Beirut or the next day, and certainly whether he managed to escape on the day when he was captured or whether he was tortured for two days before he escaped.
The applicant’s claims are not consistent with the country information cited above in terms of the rather limited power, influence and capabilities of the Allawite minority in Lebanon. Furthermore, the Tribunal considers that if Allawites were able to kidnap, torture and kill Sunnis with impunity, such incidents would have been reported in the Lebanese media. The Tribunal noted at the hearing that there is relative freedom of the press in Lebanon. This is supported by the county information: Reporters Without Borders ranked Lebanon number 98 out of 180 countries, not an outstanding result, but above Israel and Brazil.[22]
[22] Reporters Without Borders 2015 rankings at
The Tribunal finds that the applicant is not a Christian and while he may have been considering a conversion – and he might have discussed this issue with his mother on Facebook at one point in time – he is not perceived to be Christian by his family or anyone else in Australia or Lebanon. The Tribunal finds that a one-off conversation with a Christian priest (while the applicant was in a relationship with a Christian woman) would not be enough to lead the applicant’s family or anyone else to conclude that the applicant is a Christian. The Tribunal finds that the applicant’s claims that he presents to others as a Christian is untrue. The message from the applicant’s mother as to what might happen if the applicant were to be perceived as a Christian by his family or other Sunnis in Tripoli is irrelevant, because the applicant will not be perceived as a Christian.
Based on the applicant’s oral evidence at the hearing, the Tribunal finds that the applicant, while going out with Sunni friends in Tripoli, may have been involved in some physical altercations with Allawites. It does not follow that the applicant, who belongs to the religious majority of Sunnis, who outnumber Allawites by a ratio of 10:1, faces a real chance of persecution of real risk of significant harm on return. If he were to go out with friends and look for a fight, the applicant may be seriously or significantly harmed. If he goes about his business as the vast majority of Sunnis in Trpoli do, in a peaceful manner, there is only a remote chance, less than a real chance and real risk that he will be harmed by Allawites.

The Tribunal finds that even though the applicant used to reside in an area relatively close to Jabal Mohsen, he is not from Bab Al Tabbaneh and therefore, based on the DFAT advice, the Tribunal considers that the risk of harm he faces is remote.
In relation to “the list” of enemies of the Allawites, the Tribunal does not accept that if [the community leader] was of the view that the applicant was at risk on return to Lebanon, [that leader] would have refused to assist the applicant because a Liberal government is in power. In light of the Tribunal’s other credibility concerns, the Tribunal finds that [the community leader] never told the applicant that he knew the applicant’s name was on a target list. The applicant made up the existence of the message from [this leader].
Having carefully assessed the totality of the evidence before it, the Tribunal finds that the applicant has never been associated with a militia either as a first aid person or as an armed militiaman. He did not have to go into hiding in late 2008 in order to escape harm by members of a Sunni militia. He was not kidnapped, assaulted, threatened or harmed in any way in May 2012 when he returned to Lebanon either by Allawites or by anybody else.
The Tribunal has assessed the applicant’s claims individually and cumulatively and finds that he does not have a well-founded fear of persecution for reasons of his actual or imputed religion or political opinion, membership of a particular social group or any other Convention reason.
The Tribunal finds that on return to Lebanon, he will be perceived as an ordinary Sunni Muslim in a predominantly Sunni Muslim part of Lebanon. He will not face any problems and he is not of any adverse interest to a Sunni militia (or any other Sunni person), nor to Allawites/Shias, nor to members of his family.
The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (s.5J(1)).
For the same reasons, given that he is not of adverse interest to anyone, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm for any reason.
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 ss.36(2)(a) or 36(2)(aa).]
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).]
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Filip Gelev
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
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.
…
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.
…
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.
…
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.
…
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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2015] AATA 3521

15 September 2015

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction