1602738 (Refugee)

1602738 (Refugee) [2018] AATA 4090 (21 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602738
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:Shahyar Roushan
DATE:21 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 September 2018 at 11:27am
CATCHWORDS
Refugee – Protection visa – Lebanon – Imputed political opinion – Lebanese Armed Forces member – Targeted by ISIS and rebel groups – Witnessed violent outbreaks at security checkpoints areas – No evidence of prior harm due to association with the Lebanese Armed Forces – Credibility – Provided clarification to previous claims – Practice and procedure – s438 certificate not a sufficient basis for public interest immunity – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth) 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant applied for a [permanent residency] visa on 20 September 2013. He is still awaiting the determination of this application.
On 3 May 2014, the applicant arrived in Australia on a [temporary] visa. He departed in 28 January 2015 and re-entered Australia on 4 February 2015 also on a visitor visa. He applied for a protection visa on 9 July 2015.
Protection visa application
In a statement provided in support of his application for a protection visa the applicant made the following claims.
He is a Sunni Muslim from [Town 1]. His life is in danger in Lebanon.
There is continuous conflict in Lebanon and ‘the civil war is at its prime’. Being a resident of a village in North Tripoli, he is impacted by sectarian conflict.
He was a soldier in the army from [date] to [date]. He became a ‘permanent’ soldier in [date]. The Lebanese population believe that the Lebanese Armed Forces (LAF) are to blame whenever there is a violent outbreak as the army has responsibility to prevent it. The army is also attacked by various groups because they provide protection, safety and maintain order. People in his village ‘find us to be traitors as we did not side with their groups’.
His whole family has either served or is still serving in the LAF. He was targeted as he was successful in the army, serving for approximately ten years. People in the community ‘made it obvious that he ‘was not wanted’. They would verbally threaten him whenever they would see him or direct their threats to the army ‘to indirectly scare him’. He knew his life was in danger when ISIS took over many areas, put up check points and shot many soldiers.
His brother, who was a soldier, was shot twice by the ‘rebel groups’. The second bullet just grazed his head, but it could have claimed his life. Groups such as ISIS and other ‘sectarian political parties’ targeted him as he was known to be in the army. Killing and capturing him would be considered ‘a triumph’ for the rebel groups.
The Lebanese authorities are corrupt and there is no place in Lebanon where he could be safe because he was known to be in the army and competed professionally [in sport] representing the LAF. There is a website dedicated to him. Even though he was [a sports representative] for the army, he was also involved in regular training with other soldiers whenever there were ‘breakouts’. This put his life at further risk.
The applicant was interviewed by a delegate of the Minister on 19 November 2015. Where relevant, the applicant’s evidence to the delegate is referred to below.
On 29 January 2016, the delegate of the Minister refused the application. The delegate did not accept the applicant’s claims to be credible and was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Application for review
The applicant applied for a review of the delegate’s decision on 3 March 2016.
The hearing
The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The applicant was assisted by an interpreter in the Arabic and English languages. Where relevant, the applicant’s evidence to the Tribunal is referred to below.
The certificate
The Department of Immigration’s (the Department) file relating to the applicant’s protection visa application contained a s.438(1)(a) certificate in respect of certain documents on that file. It is appropriate to address the validity of the s.438(1)(a) certificate, which requires that the reason specified in the certificate for why disclosing matters contained in specified folios within the Department’s file would be contrary to the public interest, must be capable of forming ‘the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence’.
The folios subject to the s.438(1)(a) certificate consisted of the Department’s notes on the applicant’s Partner visa application; information on the applicant’s MAL security status; internal email correspondence in regards to the applicant’s MAL security status; and email correspondence between the Department and the post in Beirut regarding the applicant’s protection visa application. The only reason stated in the s.438(1)(a) certificate was that the information contained in the folios identified was related ‘to an internal working document and business affairs’. As discussed with the applicant at the hearing, the Tribunal is not satisfied that this reason provides a sufficient basis for public interest immunity. The Tribunal finds the certificate to be invalid and it has proceeded to treat the documents in the usual way as if there was no certificate.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal arrived at a conclusion different to that of the delegate with regard to the applicant’s overall credibility. After hearing and testing his evidence, the Tribunal formed the view that, whilst the applicant might have exaggerated and embellished his fears at previous stages of the process, he endeavoured to present a straightforward and truthful account of his experiences in Lebanon at the hearing. Wherever possible, he provided clarification in relation to claims previously put forward and made a genuine effort to be transparent. The Tribunal found him to be a credible witness.
At the hearing, the applicant stated that he wished the Tribunal to rely on his evidence at the review stage in assessing his claims. The Tribunal is prepared to do so and does not draw any adverse inferences on the basis of any inconsistencies with evidence given to the Department.
According to his evidence to the Tribunal, the applicant was born in [Town 1] and resided with his family in this town. In [date] he commenced his compulsory military service. He extended the period of his service voluntarily until [date], when he was employed by the LAF. He served in the LAF until April [date]. Between [date] and April [date], the applicant’s primary duty consisted of representing the LAF as a professional [sportsman]. He was stationed and trained in Beirut. He commuted from [Town 1] to Beirut on a daily basis, but on Fridays he stayed at the base and on Sundays he did not work. On two or three occasions between [date] and [date] he was deployed with other soldiers to intervene in sectarian or political clashes. He had no further involvement in these types of incidents after [date]. Following his marriage, he moved with his Australian wife into a rental property in [Town 1] and resided at this property until his departure from Lebanon in May [date].
In response to the Tribunal's questions as to why he did not wish to return to Lebanon, the applicant stated that, following his marriage, the security situation in Lebanon deteriorated. When his wife fell pregnant, they witnessed a number of incidents that were distressing to his wife and they decided to leave Lebanon.
The applicant explained that, in the early stages of his wife’s pregnancy in February 2014, his wife became sick and he had to take her to the doctor in Tripoli. As they approached the Tripoli suburb of [Suburb 1], they noticed that the road had been closed and a checkpoint had been set-up. Gunfire could be heard and there were burning tyres on the street. This was not unusual as [Suburb 1] is adjacent to the Alawite suburb of [Suburb 2] and the Sunni suburb of [Suburb 3], which have been affected by ongoing sectarian clashes between the Alawites and Sunnis in the respective suburbs. When the applicant reached the checkpoint, he saw armed people in black clothing asking occupants of vehicles where they were from and where they were going. When the applicant told them he was from [Town 1], they knew he was a Sunni and they let him pass. Nothing else happened, but his wife found the experience very frightening.
Five days after the above incident, the applicant said he was taking his wife to the military hospital in Beirut when he passed through an area between [Suburb 2] and [Suburb 1]. As he drove on, he heard someone yell ‘stop’. However, he continued driving and he heard a shot being fired. His car was not hit and, when he looked in the rear-view mirror, he saw a person in civilian clothing holding a firearm. He did not know if this person was an Alawi or a Sunni. Nothing else happened and the applicant was able to proceed to Beirut. However, on their return journey home, they were stopped at a Sunni checkpoint in an area near [Suburb 3]. The people who stopped the vehicle were ‘very scary’. He was asked where he was coming from and where he was going. He answered their questions, but someone identified him as a soldier. When this fact was confirmed through his ID check, the men became angry as they perceived the LAF to be supporting the Alawites. However, he was allowed to leave when he knew a prominent Sunni from [Suburb 3], [Mr A], who is related to his wife.
On a third occasion and around the same period of time, the applicant was taking his wife for a drive around his village when he was stopped at a checkpoint. The men minding the checkpoint told him that he would be better off leaving the army and joining their militia. He told them insha’Allah (God willing) and that he will think about it. He did not know the men and he did not encounter them again.
At his interview with the delegate, the applicant had stated that those he had encountered had tried to recruit him and had directed threats at him and his family. When asked to clarify these claims at the hearing, he stated that those who had stopped him at the checkpoint near his village had told him that it would be better for him to join their group. The applicant was also asked to clarify the claims he had put forward to the Department in relation to members of his immediate family. He stated that his brother, [Mr B] (or [Mr B Alias 1]), was a corporal in the LAF and had suffered gunshot wounds during combat when he was fighting Islamic militants near the Syrian border in 2013 or 2014. Another brother, [Mr C], had resigned from [a specialised] Unit of the LAF after being traumatised as a result of the violence he had witnessed. The applicant did not claim that any of his brothers or other members of his family had been targeted or harmed by ISIS or anyone else for the reason of their employment or association with the LAF.
The Tribunal accepts the applicant’s evidence in relation to the incidents described above. However, as it was put to him at the hearing, all the encounters appeared to have been random at a time of heightened sectarian tensions in and around Tripoli. According to DFAT, regular rounds of sectarian violence between competing militias occurred in 2013 and 2014. In April 2014, Lebanese authorities implemented a security plan in Tripoli that led to a notable reduction in the number of incidents between the Alawite and Sunni communities.[1]
[1] DFAT, DFAT Country Information Report Lebanon, 23 October 2017.
Two of the incidents had occurred as the applicant, along with other civilians, drove through the area affected by tension and the last encounter had occurred as he happened to be driving in an area near his village. He had merely found himself in the wrong place at the wrong time. He had suffered no serious harm during any of these incidents and he was not subsequently pursued or targeted by anyone for any reason, including his employment with the army. As it was also put to the applicant, he was a [sportsman] and not a combatant, he had resigned from his position in 2014 and he has no intention of returning to the LAF. Moreover, the Tribunal has found no persuasive information in any of the sources consulted to suggest that current or former members of the LAF, regardless of their rank and duties, have been targeted by any individuals, political parties, or groups in Lebanon, including ISIS. The applicant acknowledged at the hearing that he would not be personally harmed because of his former employment with the LAF if he were to return to Lebanon. He stated that his wife was always scared because of the checkpoints and barriers, which had led them to decide to leave Lebanon. This evidence was confirmed by the applicant’s wife at the hearing. The applicant acknowledged that his past employment with the LAF would not prevent him from returning to and staying in Lebanon. Nevertheless, he stressed that the security situation in Lebanon has not improved and Hezbollah continues to cause many problems. He said, if he were to go back, anything could happen and, in the event of another war, Tripoli would be badly impacted.
The Tribunal, therefore, does not accept that the applicant was threatened in the past or was subjected to forceful attempts to recruit him by any individual, group, political party or organisation because of his employment or association with the LAF or for any other reason. The Tribunal does not accept that members of the applicant’s family have been subjected to harm, including threats, due to their employment or association with the LAF or the Lebanese Internal Security Forces.
There is no persuasive information before the Tribunal to suggest that the tensions, including sectarian 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.
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 may fear 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.
After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that he has been seriously harmed in the past or that, if he were to return to Lebanon now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion or membership of any particular social group, including his family, LAF employees or former LAF employees or any other particular social group apparent on the face of the evidence.
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).
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).

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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shahyar Roushan
Senior 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.
…

[2018] AATA 4090

21 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction