1612805 (Refugee)

1612805 (Refugee) [2016] AATA 4555 (30 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612805
COUNTRY OF REFERENCE:                  Lebanon
MEMBER:James Silva
DATE:30 September 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 September 2016 at 2:20pm
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

The applicant is a man in his early [age], and a Lebanese national.
The applicant arrived in Australia [in] March [year], when he was [age]. He was the holder of a permanent entry permit, travelling in the company of his mother and a sibling. He obtained a Five Year Resident Return visa, which allows him to remain in Australia indefinitely, [in] November 1997. The applicant made three brief visits to [Country 1] between 1997 and 2002; his last return to Australia was [in] January 2002.
The applicant was convicted of serious criminal offences [in] June 2010, and sentenced to imprisonment. [In] December 2014, his Five Year Resident Return visa was mandatorily cancelled under s.501(3A) of the Migration Act 1958 (the Act). [In] 2015, the applicant was placed into immigration detention at [a detention centre], where he now remains. The applicant applied for revocation of the cancellation of his Five Year Resident Return visa, and [in] August 2015, the Minister for Immigration and Border Protection decided not to revoke the cancelation.
The applicant applied for a Protection visa [in] September 2015, and attended a Department interview [in] December 2015.
[In] July 2016, the delegate refused the application pursuant to s.65 of the Act.
This is an application for review of that decision. The applicant provided a copy of the delegate’s decision record together with the application. He appeared before the Tribunal on 20 September 2016.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.
The relevant law is set out in Attachments A (summary of relevant law) and B (excerpts from the Migration Act).
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Background
The applicant is a [age] year old man who was born in [a village] in southern Lebanon. As noted above, he accompanied his mother and a sibling to Australia in March [year]; they were holders of permanent visas.
The applicant went to school for [number] years in Australia, and then worked in various [jobs]. From 2003 to 2010, he was self-employed as the owner of a [business].
The applicant married a [Country 1] citizen resident in Australia, in 1997. The couple have [children], [details of children]. It appears that the applicant and his wife separated in 2010. He maintains contact with the children via telephone and other electronic means.
The applicant’s parents live in Australia, and are separated. He has [siblings] in Australia, and a large number of uncles, aunts and cousins. The applicant said at the hearing that his mother and some siblings return to Lebanon from time to time, for tourism and cultural reasons, and to visit family gravesites. He maintained that he has no living relatives in Lebanon, to his knowledge.
The applicant has a number of criminal convictions, and in June 2010 he was convicted of serious [offences] and sentenced to terms of imprisonment on various counts, for periods of up to [number] years. The applicant was in criminal custody until [2015], when he was transferred to [a detention centre], in [state].
Claims
The applicant claims to fear harm if he returns to Lebanon based on the following:
a)Religion: The applicant claims that he fears harm in Lebanon on the grounds of his religion. In his protection visa application, he stated that he has converted to Christianity. During the course of his review application, he claimed to have converted to the Jehovah’s Witness faith.
b)Perceived foreigner: The applicant claims that he will be perceived as a foreigner in Lebanon, in particular because he does not speak Arabic; he does not know Lebanese culture; he is not familiar with the environment; and he does not have a support network in Lebanon. Specifically, he fears that he is at risk of being mistaken as an American, and being kidnapped.
c)The applicant also expressed concerns about general security conditions in Lebanon, and the effect of his separation from his children and other family members.
Evidence
The evidence before the Tribunal includes the following material (relevant at least in some part): -
§The protection visa application lodged [in] September 2015
§Copy of the applicant’s Lebanese passport, issued in [1997]
§Medical examination dated [September] 2015
§Documents relating to the application for revocation of the mandatory cancellation of the applicant’s Five Year Return Resident visa, including submission to the Minister and the Minister’s decision
§Recording of the protection visa interview (‘Department interview’) held [in] December 2015
§The protection visa assessment (‘delegate’s decision record’) dated [July] 2016
§The review application lodged on 15 August 2016
§Email from the applicant dated 22 August 2016, advising of his intended conversion to become a Jehovah’s Witness
§Applicant’s emailed submissions:
-A copy of his immigration medical records (email dated [August] 2016)
-Materials and statements relating to his criminal conviction (email of 31 August 2016)
-List of Refugee Review Tribunal cases involving Lebanese citizens seeking protection as Jehovah’s Witnesses (email of 1 September 2016)
-Statements of support from family and friends, forwarded by the applicant
i.Statutory declaration from [the] applicant’s mother ([October] 2015)
ii.Two copies of email from the applicant’s [wife]containing a letter from the oldest [child], on behalf of his [children]
§Witness statements: [Mr A], [Mr C]
§The Tribunal drew on country information, in particular DFAT’s Country Information Report – Lebanon, 18 December 2015, as well as other sources referred to in this decision.
Large portions of the Department file and the applicant’s submissions to the Tribunal concern procedural matters, the applicant’s health and his criminal conviction. The Tribunal has examined all of these for any material relevant to this review.
The applicant appeared before the Tribunal on 20 September 2016, to give evidence and present arguments. The hearing was conducted via video link between [the detention centre], where the applicant is in immigration detention, and the Tribunal’s [office]. The hearing was conducted in English. Two witnesses, [Mr A] and [Mr C], from Jehovah’s Witnesses, gave oral evidence. The applicant was represented in this matter until [September] 2016, when he advised the Tribunal that his registered migration agent was no longer acting on his behalf. The Tribunal hearing was observed by a Tribunal member, with the applicant’s prior consent.
Consideration of claims and evidence, and findings
Assessment of claims: credibility
The Tribunal recognises the applicant’s apprehension about returning to Lebanon, a country that he has not visited since departing in [year]. However, for the reasons given below, it has concerns that he has unforthcoming about his family’s visits to and contacts in Lebanon, and that he has exaggerated his lack of exposure to the culture of that country. Similarly, it is also concerned that, after initially presenting himself as a Christian, the applicant has been opportunistic in now claiming to be a Jehovah’s Witness. The Tribunal’s assessment follows.
Receiving country
The applicant was born in Lebanon, and holds a Lebanese passport first issued in [1997] for the purpose of his travel to [Country 1]. The Tribunal finds that he is a Lebanese national, and that Lebanon is therefore the receiving country for the purpose of assessing the applicant’s protection claims.
The applicant’s file contains many references to the applicant’s activities in Australia since his arrival in early [year], and the reasons why he did not apply successfully for Australian citizenship. There is no suggestion that he has Australian citizenship. There is also no suggestion that the applicant has the citizenship of [Country 1] or any other country, or any right to enter and reside in a third country.
Religion: Christianity
In his protection visa application, the applicant identified as a Christian. At the Department interview, he said that he was born into a Muslim family, but converted to Christianity when he married his wife in 1979. He mentioned that he visited [Country 1] several times with his family for Christmas.
At the Tribunal hearing, the applicant said that his family (his mother and siblings) are practising Muslims, but he is not sure how strict they are. He said that he married his wife in a church in [Country 1]. The priest had the applicant swear on the Bible and made some general statements about Christianity, as part of the marriage ceremony. The applicant was never baptised. He said that he did not really understand the faith, and never ‘got into it’.
The Tribunal finds that the applicant does not currently identify as a Christian (at least, a Christian who is not a Jehovah’s Witness), and that he is not perceived as such.
The Tribunal notes that the applicant’s main protection claim, as set out in his protection visa application, was on the basis of his ‘Christian faith’. The delegate accepted, in the decision record (a copy of which the applicant attached to his review application), that the applicant had undergone a ‘ceremonial conversion’ to Christianity. However, he found no persuasive country information to suggest that Christians or Christian converts of long standing were targeted in Lebanon. Against this background, the applicant’s casual and uninterested mention of Christianity at the hearing suggests that he is not a religious person, and that he advanced his original protection claims based on Christianity for pragmatic rather than faith-based reasons. In the Tribunal’s view, this calls for caution in assessing any subsequent claims based on religion.
Religion: Jehovah’s Witness
On 22 August 2016 (and again on 11 September 2016), the applicant advised the Tribunal in the following terms:
I have changed my religion from Christian to Jehovah’s Witness. I have always been a believer in God, I now acknowledge that God has a name. I was not aware of this as a Christian. I have become an unbaptised publisher and I have agreed to go Jehovah’s will which is to tell people about his government, the Kingdom, which is going to solve all our problems soon, and it is great news and I feel great when I learnt it and now I am part of telling people myself. I am working towards baptism which with Jehovah’s Witnesses is something you work hard for and is not just given to you. I will be door knocking and letting people know the good news. Being a Jehovah’s Witness has given me the opportunity to carry my faith and do God’s will. My life is in danger if I practice my faith as Jehovah’s Witness in Lebanon.
The applicant added to the submission: ‘I have been entirely consistent in my claims regarding my religious beliefs and provided substantial and credible witness evidence as to my membership of the Jehovah’s Witness faith’. Apart from being factually incorrect, this language appears to have been borrowed from another source. The applicant provided the case numbers for five Tribunal matters in which Lebanese citizens who have converted to the Jehovah’s Witness faith were found to be eligible for protection in Australia. He also provided the list of reference materials (country information sources) used in the two most recent of these Tribunal cases.
At the Tribunal hearing, the applicant said that he became interested in the Jehovah’s Witness faith in early September 2015. During his five years in prison, he had turned his life around from drugs and other bad influences, and he was now looking for further guidance. He made a friend in immigration detention, and together they studied the Jehovah’s Witness faith. The applicant spoke in general terms about religious principles, his relationship with the Lord and its impact on him. He also referred to some aspects of Jehovah’s Witnesses’ teachings and practices, such as the non-observance of birthdays and Christmas, and the belief that there is no hell. Asked about his family’s knowledge of his conversion, and its practical effect, the applicant replied that they know about his faith. He said that, although he follows Jehovah’s Witness rules in general, he compromises when it comes to his children’s birthdays, and does indeed contact them.
The applicant said that he has become an unbaptised publisher, which means that he practices the faith and preaches. Asked for a specific recent example, the applicant said that he preached to a fellow detainee, although he did not have details of this person’s background. The applicant said that, in his first month with the Jehovah’s Witnesses, he preached for five hours to the congregation, he sent out some documents, and he spoke to some fellow detainees. [Mr A], a Jehovah’s Witness elder, interviewed the applicant, and was satisfied that he could be designated an unbaptised publisher.
The applicant said that he had not sought information about or contact with Jehovah’s Witness congregations in Lebanon.
The Tribunal flagged its concerns about the circumstances in which the applicant had presented a claim to have converted to the Jehovah’s Witness faith. This raised questions about the genuineness of his claimed interest in the faith and - even if he had developed some degree of interest in it - whether this would be sustained if he were to return to Lebanon. It also alerted the applicant to the operation of s.91R(1)(3) of the Act, which requires the Tribunal to disregard his conduct when assessing his refugee claims, unless it is satisfied that he engaged in it other than for the purpose of strengthening his claims. The applicant said that his conversion to the Jehovah’s Witness faith was unrelated to his protection visa application. He noted that it occurred before the delegate’s decision (29 July 2016), and implied that he did not seek to gain advantage from it while his primary protection visa application was still being considered. He added that he had undergone a big change since embracing his new faith, although maybe only those close to him could see this.
[Mr A] provided a written statement dated [September] 2016, and appeared as a witness at the hearing. He is an elder in the local Jehovah’s Witness congregation, and has been visiting [the detention centre] as a volunteer in their humanitarian program since September 2014. [Mr A] attested that the applicant attended Bible study discussions on Tuesdays, from late 2015. He believes that the applicant is ‘keen to improve his outlook and conduct on a personal level’. Following an interview, [Mr A] was satisfied that the applicant is now able to preach to others about the Bible, and he has observed the applicant teach others about his experiences. [Mr A] noted that the applicant receives no ‘points’ for attending Bible study classes, and that he uses his own phone credits to attend midweek and Sundays meetings.
[Mr A] confirmed this in his oral evidence to the Tribunal. He spoke about the principles of Jehovah’s Witnesses. He said that the applicant’s conduct and attitude had improved markedly. He said that the applicant has demonstrated in a classroom setting that he can preach, which is not an easy task. Elders and the congregation monitor the efforts of people attending the class, and he personally had interviewed the applicant to ensure that he had the knowledge and action to be an unbaptised publisher.
[Mr C], a member of the Jehovah’s Witnesses humanitarian team, wrote in terms similar to [Mr A], in a statement dated ‘[date]-11-2016’ [sic]. He described the applicant’s participation in religious activities from late 2015, and about the applicant’s positive character. He commented that the applicant ‘is progressing well and is regular with his bible study program, and baptism at this point is only a natural progression. I am definitely certain [the applicant] will continue to practice his Christian faith inside and outside detention. We do feel if he is to return to Lebanon he will be persecuted for his beliefs and faith, and he will not be able to practice his faith freely.’ [Mr C] reiterated these views in his oral evidence. As for his comment about the persecution of Jehovah’s Witnesses in Lebanon, [Mr C] said that he had not undertaken any research into this issue. He said that he is mainly a teacher, and has only referred to material that is on the Jehovah’s Witness website.
Assessment: As the Tribunal flagged at the hearing, it views the applicant’s claimed conversion to the Jehovah’s Witness faith with scepticism. It is difficult to reconcile his latest statements - including his comment that he always believed in God but, as a Christian, did not know that God had a name - with his other evidence at the hearing that he was never really a Christian. Furthermore, the applicant’s focus in his submissions to the Tribunal on the dangers facing Jehovah’s Witnesses in Lebanon - in his first email of 22 August 2016, and later in his listing of Tribunal cases – suggests that he was well aware of how this claim could assist his case.
The Tribunal accepts, on the basis of the applicant’s evidence and that of his witnesses, [Mr A] and [Mr C], that the applicant has participated in Bible study classes, and that he has telephoned into other meetings on a regular basis, at his own expense. It accepts [Mr A]’s and [Mr C]’s evidence that the applicant has satisfied them of his interest in the Jehovah’s Witness faith; that he has gained some knowledge and shown an improved conduct and attitude; and that he has ‘preached’, in the sense of presenting in a classroom setting and talking to fellow detainees. The Tribunal accepts that [MrA], on the basis of his observation of the applicant and an interview, assessed the applicant as qualified to be an ‘unbaptised publisher’, as the next step towards his eventual baptism.
However, the Tribunal has concerns about the genuineness of the applicant’s interest in the faith, and whether it forms the basis for any sustained future interest.
§ The applicant suggested that his participation in Jehovah’s Witness activities since late 2015, yet not advancing any protection claims based on this until August 2016 (after his primary application was rejected), demonstrates his sincerity and lack of any ulterior motive. The Tribunal is not satisfied that this is a necessary or correct interpretation of his actions.
§ The Tribunal formed the impression overall that the applicant is still in the very early stages of exploring the Jehovah’s Witness faith, and that [Mr A]and [Mr A] have been sincere though generous in recognising him as a ‘publisher’ based on classroom presentations and discussions with fellow detainees.
§ Related to this, the Tribunal notes that the applicant’s current involvement with the Jehovah’s Witnesses has taken place while he is in immigration detention, in the context of humanitarian visits and contacts with fellow detainees. It is sceptical, particularly in view of the applicant’s lack of past interest in religion, that he has developed any lasting conviction that he will pursue in a completely different environment. The applicant’s advice at the hearing that he has not investigated or made contact with Jehovah’s Witness congregations in Lebanon adds to the Tribunal’s doubts (although it recognises that the applicant might not yet be in a state of mind to prepare seriously for his eventual return to that country).

Based on all of the above evidence, the Tribunal finds that the applicant has become involved in Jehovah’s Witness activities primarily for the purpose of strengthening his claims for protection. However, it is satisfied that he also engaged in them for some social contact and support.
The Tribunal accepts, on the basis that it is plausible though far from certain, that the applicant has derived some psychological and social benefits from his involvement with the Jehovah’s Witnesses. It accepts that he has gained knowledge about the faith, and that he may have applied some of its teachings in a personal way. However, the Tribunal finds that the applicant’s interest in the faith is in its early stages. It is not satisfied that he is a committed ‘publisher’, other than in the context of participating in group activities in [the detention centre]. The Tribunal is also not satisfied that the applicant has yet developed a lasting commitment to the faith that would extend beyond his immediate environment.
Perceived foreigner in Lebanon
Language: The applicant claims that he would be vulnerable if he goes to Lebanon because he does not speak Arabic. A submission dated 15 September 2015 assets that he ‘is unable to speak, read or comprehend Arabic’.
The Tribunal discussed this with the applicant in some detail. It noted, for instance, that his mother wrote in a statutory declaration dated [October] 2015 (which the applicant submitted to the Tribunal): ‘I do not speak, write or read English and [at the time of applying for her Australian citizenship in 1981] did not understand the paperwork that was presented to me…’ The Tribunal queried how, if the applicant’s mother does not know English, he does not use Arabic to communicate with her. The applicant conceded that he speaks a little Arabic. However, he said that he was ‘removed’ from his family around the age of [age], by which he meant that he started staying over with English-speaking friends. He said that his siblings stayed with his immediate family, so they had more exposure to Arabic and were able to use it when they visit Lebanon. He said that he has been working to improve his Arabic language skills, especially his writing, during his incarceration.
The Tribunal accepts that the applicant’s primary language is English. It finds on the limited available evidence that the applicant understands and speaks at least some Arabic, although it accepts that he is not fluent or confident in the language.
Identification as an Australian: The Tribunal accepts that the applicant presents as an Australian, especially in terms of language and attitudes.
The applicant submitted with his protection visa application a long list of relatives – his parents, [siblings], uncles and many cousins – that indicates that he has a large extended family in Australia. The Tribunal considers that he has therefore had at least some exposure to Lebanese social and cultural forms, even if he also had many contacts in the non-Lebanese Australians (including his [Country 1]-born wife). At the same time, it is clear that the applicant has not visited Lebanon since he was [a child], and is not directly familiar with the environment there.
Other factors
The applicant submitted a large volume of documents, including supporting statements, health records and documents relating to his criminal convictions. The Tribunal did not detect in these any further protection claims. Based on the applicant’s oral evidence at the hearing, in which he spoke about his concerns about returning to Lebanon, the Tribunal is satisfied that he does not have any other specific claims for protection. Nonetheless, they reveal several factors that might be relevant to an overall assessment of his prospects if he were to return to Lebanon:
§ The applicant recorded on his medical examination that he has suffered from depression ‘since incarceration and subsequent removal to [the detention centre]’. The medical records that he submitted refer among other things to [details deleted]. The applicant did not claim in his protection visa application or at the hearing, and there is nothing to suggest, that he has any ongoing mental health issue that affected either his ability to give evidence and present arguments, or his prospects on return to Lebanon.
§ The applicant expressed concern about the ongoing security situation in Lebanon. In relation to his family’s return trips, he said that his mother and siblings went there only for reasons of family history and (short-term) tourism, and they said it was not a ‘nice place’. He claimed to know very little about their whereabouts or activities in Lebanon. The Tribunal found the applicant’s evidence vague and somewhat selective, and it is not satisfied that he gave a full and frank account of his family members’ experiences in Lebanon. Nonetheless, it recognises that the applicant is genuinely concerned about his prospects if he returns there on a permanent basis, including from a security perspective.
§ Much of the applicant’s material relates to his concerns about leaving Australia, where he has lived all his life, his inability to have direct contact with his children, and how difficult it will be for him to establish himself in what is, in effect a new country. The Tribunal accepts that he has broad concerns in this field. These do not relate directly to his protection claims, but may be a factor relevant to an overall assessment of his prospects in Lebanon, and whether he might be more or less vulnerable to any targeting.
Assessment: Refugee criterion
The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1) of the Act. It has considered all of the applicant’s evidence, individually and cumulatively. It takes into account the findings above, its assessment of his future conduct in Lebanon and relevant country information. In relation to the applicant’s contacts with the Jehovah’s Witnesses in Australia, the Tribunal considers that, although a primary motivation was to establish a basis for protection, this was not the sole reason for his activities. As such, the conduct does not fall within the scope of s.91R(3) of the Act.
In relation to his future conduct in Lebanon, the applicant gave the impression of not having made any firm plans, although it appears that he has started to brush up on his Arabic. It is not clear whether he has genuinely not turned his mind to this issue, or whether he is avoiding disclosure of this, so as not to undermine his claim that he knows nobody and has no connections there. His place of birth[is] a small village in southern [Lebanon]. With many relatives having migrated to Australia, it is uncertain whether he would gravitate to that village; to Beirut, a large city with a mix of people and a sizeable expatriate population; or some other place in Lebanon.
The Tribunal finds that the applicant, on his return to Lebanon, will focus on practicalities such as accommodation, work, and seeking social contacts.
Religion
The applicant claims to fear persecution as a Jehovah’s Witness, and in particular if he proselytises. He had little further insight into this, and appears to have based his claim in large part on Tribunal decisions in which Lebanese applicants have gained protection on that basis.
The Tribunal considers it uncertain as to whether the applicant will in fact be motivated to seek out and participate in any Jehovah’s Witnesses groups in Lebanon. His interest in Jehovah’s Witnesses is recent, it is untested outside the environment of the detention centre, and, in the Tribunal’s view, it is at least in part opportunistic. Furthermore, he has not investigated or contacted any congregations in Lebanon thus far.
The Tribunal considers that, even if the applicant were to seek out Jehovah’s Witnesses congregations in Lebanon, there were would be no bar to him doing so. Country information, including that contained in the cases that the applicant referred to in his submissions, estimates that there are approximately 70 congregations in Lebanon, with a total of about 3,600 Jehovah’s Witnesses[1], many of them located in Qalamoun and Akkar. Another source reports that there were 88 new baptisms and 543,637 hours of preaching conducted by Jehovah’s Witnesses in Lebanon in 2012.[2]
[1] Nash, M., NOW Lebanon 2008, ‘Faith comes knocking’, 16 November
[2] Watch Tower Bible and Tract Society 2013, 2013 Yearbook of Jehovah’s Witnesses, pp.182-183,
The Tribunal finds that, if the applicant were to join a Jehovah’s Witness congregation in Lebanon (which is far from certain), his priorities would be to establish himself in that community, continue his Bible studies and improve his Arabic. In relation to his ability to join a Jehovah’s Witness congregation and learn more about the faith, country information discussed at the hearing indicates that the Lebanese Constitution and other laws allow for freedom of religious expression. This applies to both official recognised and other religions. Official recognition in Lebanon comes from registration with the government[3]. However, Jehovah’s Witnesses is not a recognised religion; there is no information to suggest that they have ever sought to register.[4]
[3] US Department of State 2015, 2014 International Religious Freedom Report – Lebanon, 20 May, ExecutiveSummary,
[4] The following sources and databases were consulted: Internal databases, UNHCR Refworld, ECOInet, the Watch Tower Bible and Tract Society website, government websites, human rights organisations and international and domestic Lebanese news sources.
According to DFAT, individuals in unrecognised religious groups are ‘generally able to convert to these religious groups, perform religious rites and proselytise without attracting official or societal discrimination or violence.’ However, it identifies several disadvantages that flow from non-registration, such as de facto exclusion from political representation, and the inability to perform legally recognised marriage or divorce proceedings. DFAT concludes: ‘Overall, [we assess] that there are low levels of official and societal discrimination against members of unrecognised religious groups, exemplified by their de facto exclusion from a number of political and societal practices. DFAT assesses that unrecognised religious groups are not at risk from official or societal violence.’ As discussed at the hearing, the Jehovah’s Witnesses do not seek to participate in political processes. There is also no suggestion that the applicant would be interested in doing so. According to his own evidence, the applicant has no plans to seek a divorce or to marry in Lebanon. In these circumstances, the practical constraints on Jehovah’s Witnesses as an unrecognised religious group have little or no practical consequence for the applicant, in the event that he chooses to pursue his interests in the faith. On the available material, the Tribunal is not satisfied that there is a real chance of the applicant being persecuted for reason of his association with the Jehovah’s Witnesses in Lebanon.
The applicant indicated that he would wish to proselytise in Lebanon, and that would put him at risk of persecutory harm. The Jehovah's Witnesses official website[5] states that Jehovah's Witnesses are commanded by the Bible to proselytise to the unconverted. However, the Tribunal is not satisfied that the applicant would engage in proselytising or related activities, such as distributing pamphlets, now or in the reasonably foreseeable future. In its view, he has neither the motivation nor the requisite skills to undertake these activities in Lebanon. It takes into account his limited studies so far; the fact that his work to date as an ‘unbaptised publisher’ has only been in the context of an English-language classroom and detention environment; and his weak Arabic language skills. In response to the Tribunal’s comments at the hearing, the applicant said that he will do his best to proselytise to English-speaking people. The Tribunal places very little weight on this statement. The applicant has made no contact with Jehovah’s Witnesses in Lebanon. As such, he cannot know whether Jehovah’s Witnesses communities in Lebanon reach out to English speakers in this way. The Tribunal is not satisfied that the applicant’s statement is an accurate and considered reflection of what he actually plans to do.
[5] 'Ways They Use to Share the Good News' 2000, Watchtower website,
In sum, the Tribunal is not satisfied that the applicant will proselytise or undertake any similar outreach activities for the Jehovah’s Witnesses in the reasonably foreseeable future, in Lebanon. It reaches this conclusion based on its assessment of the applicant’s motivations, priorities and skills. In these circumstances, the Tribunal does not consider that the applicant will need to take any steps to modify his behaviour (for instance, by refraining from proselytising) in order to avoid a real chance of persecution in Lebanon.
The Tribunal notes that the applicant contended in his submission that being a Jehovah’s Witness in Lebanon gives rise to a well-founded fear of persecution on religious grounds. He relied, without further elaboration, on previous Tribunal decisions in which Lebanese applicants were found to be eligible for protection on the basis of their involvement in that faith. The Tribunal has surveyed these decisions and the country information they relied on, and has formed the view that such cases will depend on individual circumstances. Apart from the consequences of non-recognition, the country information reveals a number of problems reported by some Jehovah’s Witnesses in Lebanon. These relate above all to proselytising, and in particular to door-knocking. For the reasons given above, the Tribunal is not satisfied that the applicant will engage in such activities. They also suggest some degree of social stigma or discrimination attached to being a member of this faith. However, there is nothing to suggest that such discrimination would amount to serious harm. The Tribunal is not satisfied that the applicant would be prevented from or denied the right to associate with Jehovah’s Witnesses and continue to study the faith.
Having considered the available country information and the applicant’s own circumstances in detail, the Tribunal is not satisfied that he faces a real chance of persecution if he were to pursue any interest in the Jehovah’s Witnesses on his return to Lebanon.
Perceived foreigner
The applicant pointed to various factors, such as his lack of Arabic language skills, his lack of cultural awareness or a social network, and his use of (Australian) English, to claim that he could be mistaken for an American (and hence a spy), and that he could be at risk of being kidnapped. These arguably relate to s.5J(1) grounds such as (perceived) nationality, imputed political opinion (favouring the West) or membership of a (putative) particular social group, such as Australians in Lebanon.
The Tribunal is concerned that the applicant exaggerated his lack of familiarity with Lebanese society and culture, and the Arabic language, and that he was unforthcoming about his own extended family’s ongoing ties with that country. As discussed at the hearing, reports suggest that there are tens of thousands of Australians in Lebanon at any one time.[6] The Tribunal advised the applicant that it had found no reports to suggest persecution of Australians in Lebanon, including people of Lebanese origins returning there to live or for visits. He conceded that he was not at risk of persecutory harm for any associated reason.
[6] For instance, the then Australian Minister for Foreign Affairs and Trade, Stephen Smith, estimated that there are some 20,000 Australians living in Lebanon in 2010: see: Diplomatic appointment – Ambassador to Lebanon:
The applicant claimed more generally that he will find it difficult to ‘survive ‘ in Lebanon, in other words to find accommodation, work and meet his basic needs. It is difficult for the Tribunal to assess such an implied claim, as the applicant has been guarded about the extent of his family contacts in Lebanon, and has not turned his mind to the support he might find in the broader Australian expatriate community in Lebanon, the Jehovah’s Witness community or through other circles. The Tribunal recognises that he may some challenges in settling in, but it is not satisfied that he will experience discrimination amounting to persecution for any ground set out in s.5J(1).
The Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution based on his status as a Lebanese national who has spent most of his life in Australia, as a poor speaker of Arabic or due to any lack of familiarity with contemporary Lebanese culture and society. It does not accept that he will be perceived to be an American or an American spy, or that he faces a real chance of persecution as a result of this.
Other factors
The applicant alluded to other circumstances, such as the general security situation in Lebanon and the effect of his separation from his children. The Tribunal is not satisfied that any of these factors relate to the grounds set out in s.5J(1)(a).
The Tribunal has considered the applicant’s claims and evidence individually and cumulatively. It is not satisfied that faces a real chance of persecution for reason of his interest in the Jehovah’s Witness faith, his status as a Lebanese citizen who has spent most of his life in Australia (and associated language, cultural or other reasons), any imputed political opinion in support of Western or American interests, or any associated reason. The Tribunal therefore does not accept that the applicant has a well-founded fear of persecution for one or more of the grounds set out in s.5J(1).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Assessment: Complementary protection
The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon.
The findings of fact above are relevant to this assessment, in particular those about the applicant’s degree of involvement with the Jehovah’s Witnesses, his future conduct and relevant country information; and his prospects as Lebanese citizen who has spent almost all his life in Australia. Taking all these factors cumulatively, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm.
The applicant also expressed concern about the general security situation in Lebanon. The Australian Government’s Smartraveller website[7] conveys the sense of the broad security problems and outlook for the country in the following terms: “We strongly advise you to reconsider your need to travel to Lebanon at this time because of the unpredictable security situation as a result of the conflict in neighbouring Syria and ongoing political and sectarian tensions. The situation could deteriorate without warning.” The Tribunal notes, though, that members of the applicant’s family have visited there, and it is not satisfied that the applicant has any attributes that would put him at an elevated level of risk. Moreover, 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 lack of general security and instability that the applicant expressed concern about is faced by the population generally and not by him personally. According, the Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon as a result of the general security situation.
[7] CX6A26A6E9532: "Smartraveller Lebanon", Australia: Department of Foreign Affairs and Trade (DFAT), 26 August 2016,

The applicant mentioned, in his oral evidence and in the documentation he submitted, other factors that cause him concern, such as his separation from family members in Australia, his lack of familiarity with Lebanon, and poor living conditions and services there. The Tribunal is not satisfied that any of these factors, individually or cumulatively, will result in significant harm, as defined in s.5(1), including cruel or inhuman treatment or punishment, or degrading treatment or punishment. Additionally, it notes that in SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A),
For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflict on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty.
Accordingly, 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 suffer significant harm: s.36(2)(aa).
Conclusion
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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member

ATTACHMENT A: SUMMARY OF RELEVANT LAW
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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

ATTACHMENT B - Selected 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.
(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.
…

[2016] AATA 4555

30 September 2016

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