1513679 (Refugee)

[2017] AATA 543

1513679 (Refugee) [2017] AATA 543 (21 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513679

COUNTRY OF REFERENCE:                 Lebanon

MEMBER:Shahyar Roushan

DATE:21 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2017 at 2:24pm

CATCHWORDS

Refugee – Protection visa – Lebanon – Political – General instability - Threats of harm from Islamic radicals – Complaint to authorities – Relocation in Lebanon possible

LEGISLATION

Migration Act 1958, ss  5(1), 36(2)(a), (aa), (b), (c), 36(2B)(c), 65
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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

   Claims and Evidence

2. The applicant, a citizen of Lebanon and a Sunni Muslim, arrived in Australia [in] March 2014 on a [temporary] visa. He applied for a protection visa [in] April 2014. In his protection visa application, the applicant made the following claims:

3. He left Lebanon due to the ‘ongoing threats emanating from Islamic radicals such as the Salafysts and takfiris’. These groups have been ‘brainwashing [his] people and committing various offences’. He had made a ‘complaint’ to the authorities about their activities, which resulted in a number of them being detained and their operations uncovered. Consequently, his life was threatened by Takfiris. He has not experienced harm in the past, but ‘Islamic radicals…have vowed to avenge [his] action of informing the authorities about their illegal activities’. He fears being hunted down and killed by these groups.

4. The applicant did not attend the Departmental interview and the delegate decided to refuse the application [in] September 2015.

5. The applicant applied for a review of the delegate’s decisions. He was represented in relation to the review by his registered migration agent.

6. The applicant appeared before the Tribunal on 9 December 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [name]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant’s representative attended the Tribunal hearing.

7. At the hearing, the applicant provided the following account of his experiences in Lebanon.

8. He was born in the village of [name], Akkar and resided at the family home with his parents. The applicant attended the local mosque regularly. Towards the end of 2013, he was approached by a man after the Friday noon prayers. This person introduced himself and told the applicant that he was from Beirut. The man wanted to talk about politics, but the applicant told him that everyone is a Muslim here and that there was no room for politics. Upon meeting this person on another occasion at the mosque, the man spoke to the applicant about religion and the merits of the Islamic State of Iraq and Sham (ISIS). He also tried to incite the applicant against Shia Muslims. When the applicant refused to be a party to the conversation, he was accused of being an unbeliever. The applicant noticed how this man and his companions were ‘brainwashing’ the youth population of the village and he decided to report the matter to the police. The police arrested these men, only to release them [number] days later. On the evening after the men were released, the applicant received a threatening phone call at home. He was told that he would be killed because they knew he had reported them to the police. When they called again, he was not home and they spoke to his mother. His mother became worried and disconnected the telephone. The applicant decided to leave home and hide in the mountains. Nevertheless, he visited his parents at home every [number] days. This pattern of living continued until he was granted his Australian [temporary] visa, which he had applied for before the start of his predicament, and departed Lebanon.

9. After arriving in Australia, the applicant married [name], an Australian citizen, [in] August 2015. The applicant and his wife are expecting [a child].

10. [In] January 2017, the applicant’s representative provided a submission in relation to the facts and the applicable law. The submission essentially reiterated the applicant’s oral evidence to the Tribunal. It was submitted that the applicant will be targeted because he is considered to be a non-believer and because he had reported ‘members of ISIS’ to the police. It was submitted that these people only want the applicant and they will not go after the applicant's family. If the applicant were to return to Lebanon, his details will be known to ISIS ‘at the moment he arrives at the airport and his life would be in immediate danger’.

11. It was submitted that the applicant now has a family of his own and he looks forward to a time where he can spend time with his wife and child without the uncertainty of life and whether he will be forced to return to Lebanon despite his fear.

12. Under the cover of the submission, the applicant’s representative submitted the following reports, articles  and news items:

    ·Copy of a travel advice issued by the Australian Department of Foreign Affairs and Trade cautioning Australians against travelling to Lebanon;

    ·Copy of US Department of State’s 2015 Human Right Report in relation to Lebanon;

    ·A 2015 paper by Hilal Khashan, titled Why Lebanon’s Sunnis Support ISIS, published in Middle East Quarterly;

    ·A 1998 paper by Lamia Rustum Shehada, titled Legal Status of Married Women in Lebanon, published in the International Journal of Middle East Studies;

    ·An August 2016 article by David Daoud, titled Lebanon and the ISIS Threat, published by the Washington Institute for Near East Policy;

    ·A January 2015 article by Robyn Torok, titled ISIS and the Institution of Online Terrorist Recruitment, published by the Security Research Institute, Edith Cowan University;

    ·A December 2015 article by Mona Alami, titled The Rise of ISIS in Lebanon, published by the Atlantic Council;

    ·A December 2015 article in The Australian in relation to the role of Sharia law in settling divorce;

    ·A July 2014 article in the Sydney Morning Herald in relation to a Sydney woman being charged with adultery in Lebanon by her former husband;

    ·Printout of search results from a property website (Ahlein.net) listing properties for rent or sale in Beirut.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

14. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

15. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the following DFAT reports: Country Report Lebanon (published on 25 February 2014); Thematic Report - Sectarian Violence in Lebanon (published on 18 December 2013); and Country Report Lebanon (published on 18 December 2015).

    Analysis, Reasons and Findings

18. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

19. The Tribunal is prepared to accept that, in the latter part of 2013, the applicant encountered a group of men in his local mosque. The Tribunal accepts that these men were speaking in favour of ISIS and against Shias. The Tribunal accepts that they invited the applicant to join their ranks. The Tribunal accepts that the applicant refused their invitation, expressed disagreement with their ideas and disapproved of the fact that they were trying to ‘brainwash’ the minds of the youth in his village. The Tribunal accepts that the applicant also reported the men to the police, which led to their arrest. The Tribunal accepts that the men were released [number] days later and, on the evening following their release, the applicant received an anonymous phone call threatening him with death. The Tribunal accepts that, subsequently, the applicant had spent periods of time in the mountains, returning to visit his family every [number] days. The applicant departed Lebanon in March 2014.

20. The applicant stated at the hearing that his encounter with the men occurred after Ramadan, about three or four months before the end of 2013. Ramadan of 2013 fell between 8 July 2013 and 7 August. Therefore, according to the applicant’s evidence, he remained in Akkar for a period of six months before travelling to Australia. At the hearing, the applicant also stated that, whilst he was in hiding, his family continued to receive threatening phone calls.

21. The Tribunal accepts that the applicant had felt frightened by the telephone threats. The Tribunal, however, is doubtful as to whether the applicant had taken the telephone threats seriously, given his frequent visits to his family home during the period he says he was hiding in the mountains. Nevertheless, the Tribunal accepts that the threats had disrupted the applicant’s life to the point that he was sleeping in the mountains, he ceased his employment at the local [workplace] and he stopped going to the mosque. The Tribunal is prepared to accept that, in this case, the thr`eats directed against the applicant amounted to serious harm. The Tribunal, however, does not accept that the threats give rise to a real chance or a real risk of significant harm if the applicant were to return to Lebanon.

22. The applicant stated at the hearing that, during the period he was hiding, he visited his family home in the village every [number] days. The applicant did not claim to have encountered those he feared during these visits or at any other time. When it was put to the applicant at the hearing that, if these people wanted to harm him, they had ample opportunity to do so, he replied that they did not know his name. When it was put to him that, if they knew his telephone number, it would be reasonable to assume that they were aware of his identity and address, he replied that he did not go to the mosque and he did not visit his family ‘in front of everyone’.

23. The applicant said at the hearing that the mosque was about [number] minutes walking distance from his home. The applicant has claimed and his representative has submitted that ISIS is a ruthless organisation. It has been suggested ISIS targets anyone who does not follow their objectives. The Tribunal is of the view that if ISIS or anyone else seriously intended to harm the applicant, they had the means, the capacity and ample opportunity to locate and harm the applicant between September 2013 and March 2014. They did not do so.

24. The applicant’s evidence indicates that he had departed his village for the airport in March 2014 in a clandestine manner and there is no reason to believe that those who had threatened him were aware of his departure. The applicant also stated at the hearing that he has been in contact with members of his family in Lebanon since his departure. However, he did not claim that, following his departure from Lebanon, members of his family had received further telephone calls or that they had been approached by anyone, enquiring about him. Nor did he claim that anyone related to him had been harmed in his village. The Tribunal considers it reasonable to expect members of an organisation such as ISIS to take some form of action to try to locate the applicant or to put pressure on him through family members if they had an adverse interest in him. There is no evidence to support the applicant’s representative’s contention that these people only want the applicant and they will not go after the applicant's family. The Tribunal does not accept this view.

25. The applicant did not have any profile in Lebanon and did not strike the Tribunal as particularly articulate. The Tribunal accepts that he is an ordinary Sunni Muslim, who, like many others in Lebanon,[1] does not agree with or support ISIS. The Tribunal has uncovered no persuasive evidence in any of the sources consulted, including the country information provided by the applicant’s representative that ISIS retaliates against those who refuse to join its ranks by branding them as non-believers or harming them. The applicant did not claim, and there was no evidence before the Tribunal to support the view, that he would continue to speak against ISIS or other Sunni militants. Whilst the Tribunal appreciates that the applicant may still be concerned about his encounter with the men he met in 2013, the Tribunal is not satisfied that those who had threatened him in the past have a continuing, genuine interest in seriously or significantly harming him because he had rebuffed them, disagreed with them or reported them to the police. The Tribunal does not accept the applicant’s representative’s contention that, if the applicant were to return to Lebanon, his details will be known to ISIS on arrival, putting him in immediate danger. The Tribunal is not satisfied that there is a real chance or a real risk that if the applicant were to return to Akkar he would be subjected to serious or significant harm.

    [1] David Pollock, "ISIS Has Almost No Popular Support in Egypt, Saudi Arabia, or Lebanon," Washington Institute for Near East Policy, Washington, D.C., Oct. 14, 2014

26. Even if the Tribunal were to accept, which it does not, that the applicant faces a real chance or a real risk of serious or significant harm in his village due to the events that occurred in 2013, the Tribunal is of the view that it would be reasonable for him to internally relocate. At the hearing, the applicant did not claim that he would be at risk of serious or significant harm in Beirut at the hands of those he had encountered in Akkar in 2013, anyone else associated with ISIS or any other Sunni militant group. The applicant, however, expressed concern about Hezbollah’s presence in Beirut. When asked why this was relevant to him, he responded that Shias believe that by killing Sunnis they can go to heaven. The country information before the Tribunal does not support the view that ordinary Sunnis residing in Beirut are at risk of harm by Hezbollah or other Shias.[2] There is no evidence before the Tribunal to suggest that there is any form of ongoing sectarian violence between Sunnis and Shias in Beirut. The Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in Beirut at the hands of those he had encountered in Akkar in 2013, members of ISIS, Hezbollah, other Shias or anyone else.

    [2] See, for example, DFAT, Country Report Lebanon, 18 December 2015; and DFAT, Thematic Report - Sectarian Violence in Lebanon, 18 December 2013.

27. The applicant is relatively young and literate. He was employed in Lebanon and he has been able to support himself in Australia by working as a [occupation]. The Tribunal has considered the applicant’s representative’s submissions that the cost of living in Beirut, including rent, is very high, making it difficult for the applicant to live there. Whilst the Tribunal appreciates that the applicant will face economic challenges faced by many others in Beirut, his past experiences show that he has acquired skills, which no doubt will assist him in his quest to find the means to support himself, as well as his family, upon his return. The applicant also has an extended family, including [siblings] in Australia, who would be able to provide him with assistance. The Tribunal considers that the applicant would be able to subsist and support himself in Beirut.

28. At the hearing, the applicant’s wife stated that, about [number] years ago, she was married to her [relative], who is a Lebanese national. They were separated soon after, but she is still legally married to her [relative] under Lebanese law ‘as the divorce was never processed in Lebanon’. She stated that, if she were to return to Lebanon, her [relative] may ask to have her back as his wife. Nevertheless, the applicant’s wife also stated that her [relative] had never attempted to contact her after the separation and they have had no further communication. The Tribunal has considered the reports, papers and articles submitted in relation to the legal status of married women in Lebanon. As it was discussed at the hearing, it did not appear that the applicant’s wife’s former spouse has any intention to request for her to be returned to him. In any event, the applicant’s wife is an Australian citizen. Contrary to the applicant’s representative’s submissions, the Tribunal is not required to ‘guarantee’ the applicant’s wife’s safety upon her return to Lebanon. Whilst she may be apprehensive of travelling to Lebanon, as a whole, due to her marital history, her concerns do not render it unreasonable for the applicant to internally relocate within Lebanon.

29. On the basis of the evidence before it, and having regard to the applicant’s circumstances overall, the Tribunal is satisfied that it would be reasonable and practicable for the applicant to safely relocate internally within Lebanon in order to avoid the harm he fears in his home area.

1. At the hearing, the applicant was asked if he had any other fears in relation to Lebanon. He responded that, occasionally in the past, he used to travel from [village] to Beirut in order to purchase medication. On these trips, he was stopped at checkpoints. The applicant, however, did not claim to have been subjected to harm, let alone serious or significant harm, during these routine security checks.  

2. The applicant also referred to the sectarian conflict between Sunnis and Alawis in the Tripoli suburbs of Tabbaneh and Jabal Mohsen, stating that, when travelling sometimes, he was unable to ‘pass’. In her post- hearing submission, the applicant’s representative contended that ‘the conflict between the Shia and Sunni Muslims and other sectarian groups operating throughout Lebanon is a political and religious problem that has been ongoing for many years and has continued to increase in recent years’. According to DFAT, limited instances of possible sectarian violence have been reported in Akkar and sectarian violence within Tripoli has historically been limited to the two suburbs of Bab al-Tabbaneh and Jabal Mohsen.[3] Again, the applicant did not claim to have been subjected to harm, let alone serious or significant harm, as a result of any sectarian clashes, whether in Akkar or Tripoli. The Tribunal is not satisfied that there is a real chance or a real risk that the applicant would be subjected to serious or significant harm for the reason of, or arising from, sectarian violence in Lebanon.

   [3] DFAT, Country Report Lebanon, 18 December 2015; and DFAT, Thematic Report - Sectarian Violence in Lebanon, 18 December 2013.

3. The Tribunal appreciates that the applicant is concerned about general violence, political conflict and tension in Lebanon. However, there is no persuasive evidence before the Tribunal to suggest that the tensions, lack of general security and any instability the applicant may be concerned about is faced by him personally. The Tribunal is not satisfied that the general security situation in Lebanon would expose the applicant to a real chance of persecution for a Convention reason.

4. Under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the tensions, lack of general security and the instability the applicant fears are faced by the population generally and not by him personally. The Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of lack of general security and instability.

5. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.

6. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

7. 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).

8. 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

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

   Shahyar Roushan
   Senior Member