1600818 (Refugee)

[2017] AATA 2934

1600818 (Refugee) [2017] AATA 2934 (20 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600818

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Rodger Shanahan

DATE:20 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 20 November 2017 at 1:44pm

CATCHWORDS

Refugee – Protection Visa – Lebanon – Particular social group – Christian in Lebanon – Returnee – Fear of persecution – Fear of violence – Sectarian violence – Islamic fundamentalists – Islamic State in the Levant – Witness credibility – Evidence conflicts with country information – Significant delay in application for protection – Extensive visa history

LEGISLATION

Migration Act 1958, ss 36, 65, 424AA, 425, 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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Lebanon, applied for the visas [in] September 2014 and the delegate refused to grant the visas [in] January 2016.

3. The applicants appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The fist-named applicant submitted their own application for protection, with the second- to fifth-named applicants submitting applications as members of the family unit.

4. The Tribunal did receive oral evidence from two of his three children and two daughters-in-law. The applicant’s wife and daughter were given the opportunity to present arguments and make submissions, however did not attend the hearing. Those family members who did attend advised that they relied entirely on their father’s claims. I am satisfied that all applicants were presented sufficient opportunity as per s 425 of the Act to present arguments and make submissions.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Protection Visa Application

11. The applicant claimed that his village in Lebanon was close to Tripoli where the situation is very dangerous and daily conflict is reported.  Many people have been killed and wounded in Tripoli.  The whole area has been threatened by Islamic State and his village is surrounded by Muslim rivals.

12. The Christians in his village are targeted in the same way as the Alawi in Jabal Mohsen and Muslim Syrians have invaded their area and beheaded many people.  He has news that his area is going to blow up and thousands of Syrian terrorists are working in their area.  Lebanese Salafists who were active in Syria are now gaining ground in north Lebanon and the conflict between Bab Tabbaneh and Jabal Mohsen is becoming very dangerous.

13. The area he comes from has now become a hub for jihadists – the Islamic militants are everywhere.  He followed the news daily and believes that their lives would be at risk if they returned to Lebanon.  The Lebanese government cannot control or protect anyone as some of the Lebanese army are hostages of the Islamic extremists and some have been beheaded. 

14. The huge numbers of Syrian refugees have made things very difficult in terms of employment, rent and food as well as other things.  Because of this he couldn’t relocate anywhere else in Lebanon.

    AAT Hearing

15. The additional applicants are all members of the same family unit and the two other applicants who came advised that they relied entirely on their father’s claims.  The applicant claimed that the area they lived in was very close to Tripoli and there were lots of armed groups in Tripoli who persecute Christians.  Asked about his personal circumstances, he claimed that a Syrian came into their church [and vandalised some items].  The photo of the aftermath was viewed and it was put that the [item] was like a small one, not one in a church.  It also looked like it could have simply fallen off the table.  He claimed that it occurred three years ago.

16. Asked what he thought would happen to him personally, he claimed that he had been in Australia for 19 years and he would be harmed.  Asked to answer the question, he claimed he would be killed by Muslim terrorists.  There were lots of organisations and asked if he feared any particular group, he repeated his claim that there were many Muslim terrorist groups.

17. They would say he was coming back from Australia and their area was surrounded by Muslims and Syrians.  It was put to him that many Lebanese returned from Australia so why would he be targeted.  He claimed that all people returning were subject to harm. He was asked when he first felt this harm, and then he claimed that his daughter’s neighbour had been raped and killed.  He was asked to answer the question and said that the fear was after 2008, when he last returned from Lebanon.

18. Asked why he didn’t apply for protection in 2008, he claimed that he did apply and it was put to him that he didn’t apply for protection until 2014. He claimed he lodged it when the incidents happened where he lived and when there were killings in Tripoli.  He claimed that they killed anyone.  He was asked how far his village was from Tripoli and he said it was around [distance].  He claimed that in a village just a little way away people came and destroyed their religious statues.  Asked if he had country information to support this, he claimed that all of Lebanon is very dangerous.

19. It was put to him that the member had been to Lebanon in September and June and before that he took his family there in December 2015 and it wasn’t very dangerous.  He claimed it was well known for killings and robberies and no one knew if people would come back if they went there. It was put to the Applicant that the member had been going to Lebanon since the mid-1990s and it appeared very safe now.  He claimed that it was very difficult to live there and dangerous.

20. Country information was put to them that Christians were not targeted in Lebanon, neither were people targeted simply for returning from Australia.  He claimed that in his village there were terrorists and extremists and nobody was safe.  Asked if her daughter who was near the rape victim was still staying in her house, he said she was.  Asked why she didn’t move, he claimed it was her house and she couldn’t go anywhere.  There were 2 million Syrian refugees there so she couldn’t go anywhere.  It was put to him that there were not 2 million refugees and many were in the north-east.  She could move to other Christian-majority areas, and the fact that she hadn’t moved during this time may mean she had no fear.

21. He claimed that people couldn’t afford to buy a house there.  It was put to him that she could rent somewhere – there was no need to buy.  Country information and the member’s personal experience that the situation was not as he described.  He was asked if he had any country information to support his view of the situation.  He said that he did and he was asked to provide it post-hearing.

22. He was told about s 424AA and it was put to him that he had a [temporary] visa in 2000, a [second] visa that was refused, he appealed and the decision was remitted in 2002. It was again refused in 2003; he lodged a second appeal in 2005. The decision was remitted and he was granted a visa in 2006. He lodged [another] visa application in 2008 that was refused the same year; he appealed this in the same year and the Tribunal affirmed this in 2012. The decision was appealed to the courts which found against him. A ministerial intervention was lodged but he was told it wasn’t considered in 2014 and then he lodged a protection visa. The fear was that he was simply trying to find a way to stay in Australia and that this visa application was simply an extension of previous failed attempts to gain a visa.

23. He claimed that he was a victim of his migration agent and his company regarding his [second] visa.  He had also not received a letter about his sponsorship when he turned up at court because his agent hadn’t told him to.  At the time he didn’t speak about his agent ([agent’s name]), only the company.  He claimed that when he went to court he didn’t know why he was there as they never sent him a letter.  He was asked why he didn’t apply for a protection visa after he claimed to be in fear from 2008 yet continued down a path of appealing his [second] visa application.

24. He claimed that he thought he would try the [second] visa path.  He was asked to provide country information about the killing sin 2008 in Tripoli that he claimed triggered his fear of serious harm.  He was told that the Tribunal did not need to speak to any of his witnesses but he could ask them to speak.  He claimed that he wanted them all to speak.  The first witness stated that there were more than 2 million Syrians in Lebanon and in northern Lebanon the Syrians were being kicked out because of their violence.  He repeated the stories about the killing of a woman by a Syrian worker and the damage to the church.  The police had arrested the Syrian person involved – he was asked to provide evidence of this. He was also asked why his sister didn’t move and he said they couldn’t.

25. The applicant said that the other witnesses were going to talk about the same thing but that he would like all his children to talk.  The second witness said that things were very dangerous and they were Christians and things were hard for Christians there.  The third witness said that she didn’t really know much about the situation in Lebanon but could talk about her brother-in-law.  She was told a character witness was not necessary.  A fourth witness was called.  She had last been in Lebanon in 2005 – she had relatives there but can’t remember where the nearest town was or whether it was in the north.  She kept in contact with her cousins and they haven’t moved because the majority of people in her village were Christian.  Asked why the applicant couldn’t move to this safe Christian village, she claimed there were non-Christians who sometimes came but the army kept them out.  She didn’t really know much about it as she hadn’t been there for a long time. 

26. The applicant was reminded of the need for country information, including reports of the Syrian being arrested for the ‘attack’ on the church.

    CONSIDERATION OF CLAIMS AND EVIDENCE

27. The applicant arrived in Australia in September 1999 on a [temporary] visa and has subsequently lodged applications for a [second] visa (June 2000) that was refused, appealed (it was remitted), again refused, again appealed (remitted again) before being granted in 2005.

28. He then lodged an application under [another visa subclass] which was refused.  This was appealed in 2008 but refused by the MRT in 2012, appealed to court which was won by the Minister.  A ministerial Intervention was requested in 2013 but was ‘not considered’ in June 2014.  He lodged a protection visa in September 2014.  

29. He is [an age] year-old married Lebanese male with three children. He claimed that if he returned to Lebanon he feared being killed by Muslim terrorists because he was Christian and because he was coming back from Australia.        

30. 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.

31. 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, and find that he fabricated his claim in order to be granted a protection visa.

    Christian Persecution

32. I do not accept that the applicant will be targeted simply for being Christian.  Country information indicates that within Lebanon, Christians are ‘not generally at risk from official or societal discrimination or violence based on their religious identity alone.’[1]

    [1] DFAT Country Information Report – Lebanon, 23 October 2017, p 15.

33. I accept that there was a break in at the church in their village, but not that the church was ‘stormed by assailants’ as one account claimed (folio 75).  The only damage visible was [details deleted].  There is no other damage to the church and the [item] appears to be next to a table and pot plants all of which appear undisturbed (folio 70).

34. I note that the only support for the applicant’s claim that this was done by Syrians was a letter (folio 77) allegedly from the priest saying that this was what the investigation concluded.  I lend this little weight given it is a photograph of a handwritten note provided post-hearing and there is no way of confirming its source.  I note that one of the witnesses claimed that a Syrian had been arrested, yet there is no country information provided that indicated who was responsible.

35. Regardless, the incident occurred in 2014, appeared minor and random and is not indicative of any systematic targeting of Christian people.  The applicant was also vague about who he believed would target him, simply saying it would be a Muslim terrorist group.  Nor did he provide post-hearing any evidence of the killings in Tripoli that eh claimed instilled this fear, even though he was asked to do so.

36. I also note that, despite claiming to have held this fear since 2008, he didn’t apply for protection until 2014.  This lag time is hardly indicative of someone that fears serious harm; his multiple failed attempts to gain a visa through other means during that time raises concerns that the applicant is simply trying to find a way to stay in Australia rather than fearing serious harm in Lebanon.

    Other Issues

37. I also do not accept that the applicant will be targeted because he has been in Australia for 19 years.  Travel between the two countries is very common and there is no independent country information available to the Tribunal, nor was any provided, to indicate that people are targeted simply for returning from an extended period of time in Australia.

38. I also do not accept that the applicants will be targeted by Syrians.  There are approximately one million Syrian refugees in Lebanon according to UNHCR[2] (not two million as claimed by the applicants) and, while this is an enormous number there is no country information, nor was any provided to the Tribunal that indicates they are a security threat to Christians.  Whilst their presence would put economic pressure on Lebanese, country information indicates that it is displaced Syrians who suffer the most economic hardship.[3]  The applicant has familial links in Lebanon and has worked in Australia so I am satisfied that he would be able to subsist on return to Lebanon.

    [2] accessed 9 November 2017

    [3] DFAT Report, p 6.

39. Further, I do not accept that the whole area (referring to his own area or Tripoli) has been threatened by Islamic State, that his village is surrounded by Muslim rivals, thousands of Syrian terrorists are working in his area, the area he comes from has now become a hub for jihadists, Lebanese Salafists from Syria are now gaining ground in north Lebanon or that the conflict between Bab Tabbaneh and Jabal Mohsen is becoming very dangerous.  The Tribunal is not aware of any independent country information that would support such claims, nor was any provided by the applicant (despite claiming that he ‘followed the news daily’).

40. Whilst I accept that a woman was raped and killed by a Syrian national (folio 63) I note that it was part of a robbery in the first instance.  This is a random criminal act and not part of any systematic targeting of Christians – I note the applicant’s sister, who he claims lived nearby has remained in her house which would indicate that she doesn’t fear harm based on her religious identity.

41. 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

42. Because I do not accept that the applicant will be attacked by Muslim terrorists or Syrians in Lebanon because he was Christian or because he was returning from an extended period of time in Australia, or that his area has been threatened by Islamic State, there are thousands of Syrian terrorists operating in his area, the area was now a hub for jihadists, nor that he would be unable to subsist if he had to return to Lebanon, 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).

1. 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

2. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants Protection visas.

   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.