1512931 (Refugee)

[2017] AATA 2960

1512931 (Refugee) [2017] AATA 2960 (21 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512931

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:21 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 November 2017 at 2:26pm

CATCHWORDS

Refugee – Protection visa – Lebanon – Religion – Christian – Medical issues – Fear due to general unrest – Witness credibility – No evidence of generalised violence and unrest in applicant’s town

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Lebanon, applied for the visa [in] April 2015.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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

8. 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.

   CLAIMS AND EVIDENCE

   Protection Visa Application

9. The applicant was a Christian widow from [Town 1] in northern Lebanon.  It is near to Tripoli where there is fighting and major unrest.  She feels vulnerable and unable to be protected in Lebanon.  She couldn’t relocate to Beirut as the rents were too high and she didn’t have a pension.

10. She has a daughter in [Town 2] however the situation there is also very bad.  She could not go outside without her husband as they are afraid of hard core Muslim terrorists in the [area].  Her daughter lives with her parents-in-law so she could not move in with them.

11. The hard core Muslims are writing graffiti on walls and churches in [Town 1] and [Town 2] trying to instil hatred.  She was scared to go out as there were car bombs detonated everywhere and she wouldn’t know if she would come out alive. She would only go to her local church if someone drove her as she was too scared to walk there.  She had good neighbours who would help her if she needed to go to the doctor or the like, but the shops and chemist were close to her home.

12. She is not well and suffers from a range of conditions but cannot get the medical care in Lebanon because of the current situation of violence and crisis.  Her daughter helps by sending money from Australia.  She fears being killed or kidnapped by terrorists from Syria crossing the border, and the Lebanese authorities are incapable of protecting her.

    AAT Hearing

13. The applicant was asked what serious harm she feared if she returned to Lebanon and she claimed that there was instability because of the Palestinians and the new group attacking the army and the villages in Lebanon.  She was advised that her claim related to her personally – she said that she lived alone in her village with no one to help her and there was instability there.

14. It was difficult to get her to express what harm she felt personally would befall her, and she said she was defenceless with people attacking, kidnapping and killing and she felt afraid.  She couldn’t be alone and her sight and hearing were bad.  It was put to her that getting old and being lonely occurred to people and there were different visa paths for these circumstances, but a protection visa required that she be targeted for serious harm so she needed to explain what she feared personally. 

15. She claimed that Islamic State were attacking and killing people and blocking roads.  Asked again what would occur to her personally, she said she couldn’t go outside without fear of Islamic State or radical Muslims who hide amongst the Syrian population.  They attack people and houses.  Asked why she would be targeted, she claimed they targeted everyone but there was no one to protect her.  They don’t announce their target list.

16. Asked if there had been attacks in [Town 1], she claimed that there were attacks – she got news from her daughter and neighbours but hadn’t seen any as she had been in Australia three years.  It was put to her that the Tribunal was unaware of any attacks in [Town 1] and it appeared peaceful.  She was asked to provide country information to support this.  There was a free and vibrant press so these events would be reported upon.

17. She claimed some issues had happened in the last three years but she heard of constant security issues.  She was reminded that her fear needed to be well-founded.  She was also advised that country information indicated that Christians in Lebanon weren’t singled out for harm and that in going to Lebanon for the last 20 years this accorded with the member’s experience.  She was asked why she felt she would be targeted as a Christian.  She repeated that she was in fear with no one to help.

18. Asked if she had any relatives in Lebanon she initially said no but then said she had a daughter in the south but the war was raging there.  Asked what war was occurring there, she claimed it was the one with the Palestinians in Ein al-Hilweh and were attacking the army in Abra.  It was put to her that Ein al-Hilweh had been there for decades (since the late 1940s), [Town 2] was not under attack and had been calm for a long time.  She said this was not the case.

19. Asked when she stopped working in Lebanon, she claimed she was working as a [occupation] until she came to Australia.  But her eyesight was now weak.  Asked if her daughter in [Town 2] helped her, she claimed she sent some money every now and then but prior to this she had managed okay.  Asked why she couldn’t manage if she returned, she claimed that her weak eyesight was affecting her and unless it got better she couldn’t work. 

20. Asked if she was undergoing medical procedures in Australia she claimed she wasn’t.  Asked why she hadn’t had her eyes looked at if they were such a problem, she claimed they were incurable and had [medical condition].  She was asked if she had medical documents to support this, she said she did and was asked to provide it post-hearing.  Asked if they had been a problem in Lebanon, she claimed that they were.  She claimed that she went to Beirut for proper medical treatment, although there were some doctors in [Town 1].  By public transport, Beirut took [travelling time].  She was asked how long it took to get to Tripoli, she said it was [travelling time] because of the traffic.  She didn’t go to Tripoli because she had a [relative] who worked at [Beirut] as an employee (not a doctor).

21. She couldn’t go back to [Town 1] because she couldn’t be by herself, see properly or manage things.  She was advised of s 424AA and it was put to her that she had spoken of her poor eyesight here, and at the DIBP interview (where she was advised to get her eyesight checked) yet she didn’t appear to have done much to fix this.  In her March 2015 statutory declaration she had claimed she suffered a range of medical conditions for which she couldn’t receive treatment yet in her [temporary] visa application filled out some four months prior to that, the embassy noted it said that no adverse answers were made to the health questions so there appeared to be an inconsistency between the health problems she claimed here and what she had claimed in order to get a visa. 

22. She claimed that her medications were mentioned and declared in her application.  Her daughter stated that her mother had been honest regarding her medical conditions.  The main concern with her claim was that she was portraying a picture of Lebanon in general and [Town 1] in particular that the area was overrun by Islamists and Palestinians to such an extent that she couldn’t go out of her house.  Yet country information and the member’s personal experience didn’t support this, neither had she provided any independent country information to support this claim.  She said she couldn’t get photos of these things and she was alone and needed help and was relaxed and comfortable here.

23. Asked if she had friends to help her in [Town 1]; in the community or from church and she claimed she couldn’t rely on the church and people couldn’t provide her with the necessary help.  It was put to her that the friends could look out for her or drive her to church when required.  She said they couldn’t and she had no friends in [Town 1].  It was put to her under s 424AA that she had told DIBP that she had many friends in [Town 1] and this was inconsistent with what she had said at hearing.  This raised questions in the mind of the Tribunal.  She claimed that she had acquaintances through her [occupation] but they weren’t friends.  The church community may help a bit financially but not otherwise as they had other people to look out for.  It was put to her that loneliness was not in and of itself serious harm and the church could help her travel to places as this was the Christian thing to do.  She didn’t answer this but stated that she wasn’t individually targeted.

24. Her adviser claimed that the applicant was a [age] year old, widowed, Christian woman and that the situation regarding the detention of the prime minister of Lebanon in Saudi Arabia showed how unstable the region was.  She claimed that she would provide country information in support of the application’s claim.  While she hadn’t been targeted yet she wouldn’t be given notice of danger before it happened.  She asked that complementary protection or referral to the Minister be considered.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The applicant arrived in Australia on the [number] occasion [in] December 2014 on a [temporary] visa, and applied for protection [in] April 2015.  She claimed that she feared being killed or kidnapped or attacked by Islamic State or other radical Muslims because she was Christian.        

26. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

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

    Attacks in [Town 1]

28. I do not accept that there have been anti-Christian attacks in [Town 1].  The Tribunal is unaware of any attacks conducted against Christians (or anyone else) in [Town 1], or of kidnappings.  Nor is it aware of graffiti attacks against walls and churches, or of car bombings there.  I have taken into account some general country information provided to the Tribunal (some Human Rights Watch reports and a Wikipedia site, however lend them little weight.  They are general in nature and don’t deal with the specific claims put forward by the applicant.  I place more weight on the DFAT report that indicates that Christians in Lebanon are not generally at risk from official or societal discrimination or violence.[1]

    [1] DFAT Country Information Report – Lebanon, 23 October 2017

29. The applicant was given every opportunity to provide evidence to support her case; she was requested in writing prior to the hearing to provide a list of the violent acts (including car bombs) or attacks against churches occurring in [Town 1] since 2010 however no such list was provided.  She was given an opportunity to provide relevant information in support of her claim post-hearing but no information on attacks in [Town 1] was ever provided.  I am therefore satisfied that there is no real chance of the applicant suffering serious harm in [Town 1] as the result of being a Christian.

    Other Issues

30. While I accept the applicant may feel lonely at times in Lebanon and have some health issues, I am not satisfied that either issue is as serious as she makes out or marked enough to constitute serious harm.  Although she claims to have failing eyesight the medical certificate she provided post-hearing indicates that ‘She would benefit from an assessment with [agency] in regards to visual aids to improve both her reading and navigation vision.’  She has not provided any indication that she has done this and, given the letter is dated [in] October 2016 I am satisfied that she functions well enough without having to use visual aids.  The other medical documents from a [health professional] from April 2017 and a medical centre record do not indicate anything that would indicate she has significant medical issues that cannot be treated in Lebanon.

31. I also do not agree that her isolation is as bad as she has made out.  She claimed during the hearing that she had no friends in [Town 1], yet she had stated at the DIBP interview that she had many friends in [Town 1].  She also claimed at hearing that people in [Town 1] couldn’t provide her with the necessary help, yet she stated in her written application (folio 80) that ‘She had good neighbours who would help her if she needed to go to the doctor or the like.’  

32. Her trips to Beirut to the hospital are by choice and it is reasonable to believe that she could access a closer hospital in Tripoli if the doctors’ capabilities in [Town 1] were insufficient for her needs.  She also has a daughter in [Town 2] whom she could access for assistance – I do not accept that this was not possible due to the security situation in [Town 2] as she offered no country information to support this claim nor is any such information available to the Tribunal.

33. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

34. Because I do not accept that Christians in the applicant’s home town have been attacked or kidnapped, that graffiti has been sprayed on church walls or car bombs detonated there, that the applicant has no support in the town or would not be able to have her health needs met, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

35. Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

36. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

37. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

38. 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

39. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Rodger Shanahan
    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.

    …