1514484 (Refugee)

[2016] AATA 3886

1514484 (Refugee) [2016] AATA 3886 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514484

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:27 May 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 May 2016 at 8:31am

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).

2. The applicant who claims to be a citizen of Lebanon, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] April 2014.

3. The matter was before the Tribunal because of a Federal Circuit Court order [in] October 2015.

4. The applicant appeared before the Tribunal on 9 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   CLAIMS AND EVIDENCE

   Protection visa application

5. The applicant claimed that he worked for the Lebanese MP [Mr A].  Following [a local conflict in] 2007 there was a commemoration day to be held in [a local park].  The applicant was on his way with two colleagues to collect the MP to go to the gala when they met a large convoy of his opponent’s (former MP [Mr B]) supporters.  They tried to pass but were blocked, their vehicle was attacked and broken and their weapons were confiscated and they were sworn at.

6. The person leading the attackers was [Mr C] and he ran away to an unknown area with the vehicle and their weapons.  That afternoon someone shot at [Mr C’s] house and tried to enter it.  He was accused by the specialised security forces of this and then began receiving threatening calls from an unknown person. The first was on [a date in] July 2007 and another [a week later] saying that his time had come.

7. He thought the calls were a reaction to the shooting but they continued; he received at least one call every month each time from a different voice.  One day he found his vehicle’s windscreen broken, and also a black piece of cloth was hung outside the gate to his house.  He took precautions from then, didn’t go out alone or go very far.  [In] 2008 MP [Mr A’s] house was hit by gunshots.  The applicant became even more scared as a result and took even more precautions.

8. [Later in] 2008 he received another threat.  He did not report the incidents to the security forces because he thought he would be in more danger as those making them would know he was scared, and may hasten their actions.  [In] 2009 he found his car completely covered with a black cloth and found a threatening note on his [car].  The threatening calls continued even as they prepared for the elections. MP [Mr A] won the election and they celebrated that evening, but shots were fired, his colleague was wounded and the army was called in and took over the area.

9. The next day ([in] June 2009) the main road and all entries and exits to the town were blocked and the army was again called in.  Threatening calls continued to come to him but he would not answer them.  [In late] 2009 his aunt visited and asked if he would like to visit Australia.  He received a visa [in mid] 2010.  He was supposed to return [in] August 2010 but [a few days earlier] his mother rang his mobile phone and told him not to return to Lebanon as there had been a threatening call received at his mother’s house in which the applicant was threatened with death if he returned.  He then decided to apply for protection.

   Tribunal Hearing

10. The applicant claimed that if he returned to Lebanon he would be killed because someone related to Hizbullah claimed he shot at their house.  Asked to clarify their relationship with Hizbullah he confirmed they were Hizbullah members. He had no other claims.

11. In 2007 after the [local conflict] there was a commemoration and he was working for a MP [Mr A].  On the way to the commemoration there was a group of cars for [Mr B] who was part of Hizbullah.  Asked to clarify his relationship to Hizbullah he claimed that he represented Hizbullah in the north but wasn’t a gun-carrying member.  It was put to him that not all Hizbullah members carried a gun, and he confirmed that [Mr B] was a member of Hizbullah.

12. The original conflict between [Mr A] was because he was from [Group A] and [Mr B] was affiliated with Hizbullah.  As the applicant was driving, a group was trying to intercept their trip and they were trying to avoid them.  Their path was blocked by this group’s cars and they had guns pointed at them.  There were three of them in the car and were let go after they talked their way out of it.

13. The same day the bodyguard of [Mr B], [Mr C] was shot at and gossip had it that the applicant was blamed for this action.  He had people calling him telling him that he was blamed for it.  People also began giving him threatening phone calls.  He couldn’t recall the exact dates but thought it began in July 2007.  The calls came every few days, weekly or monthly and went on for all the time and they contacted his mother while he was in Australia.

14. He came to Australia as a visitor and they began calling his mother and he changed his mind with [a few] days to go. He didn’t want to live in fear.  He was asked why people would still be interested nine years later, and he claimed Lebanese believed in revenge. He had not shot at [Mr C’s] house but because people thought he was the most loyal to [Mr A] he was blamed.  The other two people in the car [were the] driver and the driver’s [relative] and people thought he wa the only one who would have done it.  He didn’t know who shot at [Mr C’s] house.

15. Asked if he was a member of [Group A], he claimed he was a member but left just before he came to Australia.  [Mr A] wasn’t entirely a member of [Group A] at the start and was a member of some other group affiliated with [Group A].  Later he joined [Group A] but he couldn’t remember exactly.  The applicant joined [Group A] around 2008 but couldn’t recall exactly when.  [Mr A] joined [Group A] in 2009/10.  Asked if [Mr A] was a member during the 2009 elections, he claimed that [Mr A] wasn’t.  He then said that [Mr A] was a member in June during the election. 

16. He was then asked again if he was a [Group A] member and he said he was on the [Group A] list.  He was asked again whether he was a member or just on the list.  Given his closeness to [Mr A] it was reasonable to know his boss’s political party membership. He claimed that he tried to remember but didn’t recall many things from that time.  He wanted time to recall exact details and he was advised that he had plenty of time to be prepared for the hearing.

17. He worked for [Mr A] as [an occupation 1] to begin with doing maintenance but he was liked and then made [an occupation 2].  He began working in 2007 as [an occupation 2].  Before that he worked in his house as [an occupation 1] from 2006.  Prior to 2006 he thought he may have been studying.  [He worked in a team].  He had no formal training as [an occupation 2] but this was how Lebanon was.

18. [Mr A] was in [District 1]. There was also [another politician] but he had passed away, [a further politician] was also there.  They belonged to [Group A].  Asked if Hizbullah ran a candidate, he claimed they were [Mr D] and [Mr B]. They were both Hizbullah but not Shi’a.  Asked how they could be members of Hizbullah if they weren’t Shi’a.  he claimed that someone didn’t have to be Shi’a to be part of Hizbullah but it was put to him that members of Hizbullah had to be Shi’a as they believed in wilayat al-faqih and only a Shi’a would believe in this concept.

19. He claimed he didn’t know if [Mr B] had converted to Shi’ism as he wore the ring.  Asked if there was any Shi’a seat in their district he said there wasn’t.  All seats were for Sunnis.  He was asked how Hizbullah could run candidates like [Mr B] in an area where there were only Sunni seats.  He repeated his claim that [Mr B] had converted to Shi’ism and Hizbullah were putting their candidates everywhere.  In 2009 [Mr B] was Shi’a and had been from the start.  In Lebanon anyone could run anywhere so long as one got the votes. 

20. It was put to him that this was not the case and that he may be trying to portray [Mr B] as a Shi’a member of Hizbullah when this wasn’t the case, and the same for [Mr C].  Country information indicated that there were hardly any Shi’a in north Lebanon and [District 1] particularly.  March 8 (the Hizbullah-led coalition) did not even run candidates in North Lebanon as there were no Shi’a seats there. Given this, he was asked why there were Hizbullah members in his area who wished to target him.  He then claimed that they weren’t with Hizbullah but were very loyal to them.  

21. In his village Hizbullah had many followers as people hung Hizbullah flags and pictures of Imad Mughniyya.  He arrived in Australia [in mid] 2010 and applied for protection around August.  Asked when he found out he had been refused protection, he hesitated and said it was three or four years ago but didn’t know exactly when.  When he found out he was refused he re-applied but didn’t know when he re-applied.

22. Asked how he found out he had been refused, he then claimed he wanted to be honest and said he had found out and just ignored the notice until he re-applied.  He received the rejection notice by mail.  He had been asked this question by DIBP and told them he never received the notice.  He admitted that he lied under oath to DIBP but couldn’t say why he had done this, but was now telling the truth.

23. He re-applied for protection because he was unlawful and wished to get married, and he believed the law would prevail.  He was advised of s 424AA and it was put to him that in visitor’s visa application he described himself as an office employee of [Mr A], rather than as [an occupation 2].  This may go to the issue of the applicant’s credibility.  He claimed that he was [an occupation 2] in his office; he didn’t describe himself as [an occupation 2] as he didn’t take notice of the form.

24. It was put to him that there was no country information that indicated an attack on [Mr A’s] house after the 2009 election that wounded [an occupation 2].  It was reasonable to believe that such an incident would have been reported in the Lebanese press and he was asked if he had any independent country information to support this claim.  He said he would look for it.

25. It was also put to him that there had been no reports of [Group A] members being attacked in the lead-up to the elections, which was different to what he had claimed today. His protection visa application was submitted just before the expiration of his tourist visa which didn’t indicate a personal fear of returning.  He claimed that he was returning until his mother received the threatening phone call.

26. Under s 424AA it was put to him that he had told the DIBP that [Mr A] was a MP from [Group A], yet today he was uncertain whether he was a member, when he joined or whether he ran in the election as a [Group A] member.  This was another inconsistency in his evidence.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The applicant arrived in Australia [in mid] 2010 as the holder of a visitor’s visa, and applied for a PV [in] August 2010, which was refused [in] December 2010.  He remained as an unlawful non-citizen until [in] August 2013 when he lodged a second PV application.  He is [an age] year-old Lebanese male who has been married since being in Australia. He claimed that he would be killed if he returned to Lebanon by Hizbullah members because he was blamed for shooting at their house.         

28. 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.

29. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness.

    Knowingly Providing False Evidence

30. The applicant admitted that he had lied under oath to DIBP during his interview with them.  He had told them that he had never received notice of the rejection of his original PV claim, yet during the hearing he admitted that he received it by post and ignored it.  Whilst serious in and of itself I find this action is also indicative of a broader lack of credibility on the part of the applicant.

    Employment and conflict

31. While I am willing to accept that the applicant may have been employed by [Mr A], I do not accept that he was [an occupation 2].  In his visitor’s visa application in Lebanon he simply described himself as an office employee (folio 41) and made no reference to his alleged role in providing [occupation 2 assistance], while in his protection visa application he claimed to be an electoral assistant/[occupation 2]. I do not accept that the inconsistency is because he did not take notice of the form in Lebanon; this claim relies solely on his oral evidence which I have found to lack credibility.

32. I also do not accept the applicant’s claim that [Mr B] and [Mr C] were Hizbullah members.  He was again vague but claimed when pressed that both were Hizbullah members.  Given Hizbullah is an avowedly Shi‘a party[1] it is unlikely that [Mr B] would be allowed to represent them as a Sunni candidate, and I do not accept that [Mr B] had converted to Shi‘ism.

    [1]

33. Not only does Hizbullah not have a significant presence in North Lebanon[2], there are no seats allocated to Shi’a in [District 1].  [Mr B] ran for a Sunni seat in [District 1] during the June 2009 election which indicates that he was a Sunni at the time the applicant claimed he was a Shi’a Hizbullah member.[3]  He can’t have been affiliated with them either, as the election results[4] do not indicate that he was a member of the March 8 political coalition, the coalition which contains non-Shi’a groups and which is led by Hizbullah.  The claim that [Mr B] had converted to Shi‘ism is not supported by any independent country information and relies solely on the applicant’s claim.  I have found that the applicant lacks credibility and has knowingly provided false evidence in the past.

    [2] RRT Research Response LBN34751 dated 5 May 2009

    [3] International Foundation for Electoral Systems, Lebanon’s 7 June Elections: the Results, 9 June 2009

    [4] Ibid

34. Because I have found that his claim that [Mr B] to be Shi’a and a member of or affiliated with Hizbullah to lack credibility, it follows that there was no conflict between [Mr B] and [Mr A].  The applicant claimed that the original conflict between the two of them was because they represented Hizbullah and [Group A] respectively, however I have not found this claim regarding the political affiliation of [Mr B] to be credible. 

35. The applicant was also vague about [Mr A’s] [Group A]  affiliation, claiming variously that he joined [Group A]  around 2008, then 2009/2010 and then that he may or may not have been a member of [Group A]  during the 2009 election.  Given this inconsistency, I am not satisfied that [Mr A] was a [Group A] member at the time of the 2007 [local] commemoration.

36. It then follows that if there was no conflict resulting from competing political party affiliations (because there were none), the applicant was never involved in an altercation at the 2007 [local] commemoration service with [Mr C] ([Mr B’s] alleged bodyguard), never received any death threats or had his car covered in a black cloth, nor was there any incident in which shots were fired at [Mr C’s] house.

37. I do not accept that [Mr A’s] house was hit by gunshots in [2008] or during the celebrations following the 2009 election.  It is reasonable to believe that an incident where a MPs house was shot at would have elicited some media interest, particularly after an election in which [an occupation 2] was wounded and the army was called in.  Yet the Tribunal was unable to find any reference to such incidents, nor did the applicant offer any even though he was given the opportunity to do so.

38. 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

39. Because I do not accept that the applicant was [an occupation 2] for [Mr A], involved in an altercation with supporters of [Mr B], that [Mr B] was Shi’a or in a political relationship with or member of Hizbullah, or that the applicant was ever involved in or accused of being involved in any shooting incident, or that he received death threats or had his car covered in black cloth, 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).

40. 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

41. 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).

42. 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).

43. 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

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of 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.

    2.        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).

    3.        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’).

    4.        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 – to the extent that they are relevant to the decision under consideration.