1709073 (Refugee)

1709073 (Refugee) [2021] AATA 362 (15 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709073
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Rodger Shanahan
DATE:15 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2021 at 4:43pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – fear of harm from criminal gang and local authorities – implicated in criminal activity and subject of arrest warrant in absentia – credibility – visa history – delay in applying for protection – inconsistent claims and evidence and insufficient documentary evidence – mental health – AVOs and separation – best interests of Australian citizen children – role in children’s lives – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
AXL17 v MIBP (No 2) [2019] FCA 778
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 dependants.
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 and Border Protection on 31 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Lebanon, applied for the visa on 24 November 2016.
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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection Visa Application
I am a Lebanese citizen born in [Village 1] Lebanon on [date]. I am one of [number] siblings. I have one brother and [number] sisters. One of my sisters is deceased. All my siblings are married with kids with the exception of my younger sister who is engaged.
I have one older sister living in Australia who I am often in contact with. I am [an Occupation 1] by trade and I managed and ran my family owned [business] in Lebanon. I met my wife [Ms A] in Lebanon. We have been married since [February] 2004.
We have [number] children to the marriage. [Names and ages of children specified.] On 4 April 2004 I applied for and Australian Spouse Visa subclass. On 4 July I was granted a Spouse Provisional Visa subclass 309.
[In] August 2004 I entered Australia on this visa. I was only issued with a one year Lebanese passport from Lebanon which expired [in] 2005. In approximately 2008 I attempted to apply for a new Lebanese passport. I did not hear anything for six months regarding my passport application.
I then contacted the Lebanese Embassy who advised me I have to go to Lebanon to apply for my passport. I was never given any other reason as to why I was not able to be issued with a new passport. 14. During my time in Australia my family and I experienced financial hardship, destitution, and homelessness which prevented me from taking care of my permanent migration visa affairs sooner.
My family and I moved around between three refuge shelters from the period of July 2006 until August 2007, the first being in [Suburb 1], followed by [Suburb 2], and then to a refuge in [Suburb 3]. In 2007 the Department of Housing provided my family and I with housing.
After this period my family and I continued to experience financial hardship, my main priority during this time was to ensure my family’s safety and well-being. As a result of the increased financial hardship I developed depression and was put on anti-depressants by my doctor. [In] October 2011 I made an application to the Australian Federal Police for a National Police Check. I provided a copy of my expired passport which had also been torn and damaged by my young children as well as a copy of my Lebanese National Identity card.
I received a response from the police advising me that they were unable to process my application because my Passport was damaged. I made another attempt to apply for a new Lebanese passport but I was refused a new passport by the Lebanese embassy. I was informed that there was a legal matter in Lebanon that I was implicated in and an arrest warrant was issued in my name in absentia and this prevented me being issued with a passport.
Upon further enquiry I was informed that a man by the name of [Mr B] was caught using prohibited drugs in [Location] Lebanon and had implicated me during his interrogation. Upon his interrogation [Mr B] informed Police he is a long time drug user who had been using drugs for nine years. [Mr B] advised Police that he was introduced to the drug sellers by me.
Upon finding out this information I was shocked and confused. I have never been involved in any criminal or drug activity in Lebanon. I do not know of [Mr B] personally. Nor do I know the drug traffickers [Mr C] and [Mr D]. I became very alarmed because I was aware that these men belonged to a notorious criminal drug gang in Lebanon who are a violent, deadly group of men who have hired gunmen to intimidate and murder rivals, government officials, and often, innocent bystanders.
I began to fear for my safety and the safety of my family. I do not know why [Mr B] mentioned my name but I believe it was to shift the blame from himself to another person. Upon discovering this I immediately began to take action to dear my name and rectify the problem so I can be issued with my Lebanese Passport.
I had limited means of hiring a lawyer in Lebanon to appeal against the arrest warrant and legal matter therefore my father [Mr E] provided the funds to pay the legal costs. The matter was eventually dropped. The arrest warrant against me was withdrawn and there was no conviction recorded against me.
Since my name has been cleared ! have been informed [Mr B], [Mr C] & [Mr D] were all re-interrogated by the Lebanese Police whom have begun to reinvestigate the matter once again. Any drug related offences are taken very seriously in Lebanon. Penalties for drug offences are severe and include mandatory prison sentences.
Shortly after the Police reopened the case my Father who suffers from high blood pressure was threatened by some thugs who he believes were acting on behalf of [Mr C] and [Mr D]. The thugs approached my Father on the street near our home in Lebanon and grabbed him by the collar and began threatening to kill him and my mother.
They also threatened that if I return to Lebanon I will be “shot on the street like a dog”. My dad informed me that the thugs wanted money and “payback” for the ongoing police harassment and legal proceedings they were faced with.
My Father was shaken and scared and experienced anxiety and fear on an ongoing basis after this incident. My Father was once again harassed and threatened at the local marketplace six months later by the same thugs who repeated their earlier demands and threatened to slash my Fathers throat if he did not arrange to give them some money.
My Father has been unable to leave the house after this incident and is always escorted by my older brother if he has to go anywhere. I have no association with these people and do not know why they are targeting me but I believe it’s because they know I live in Australia and I am perceived as being able to afford to pay them money in order to keep my family safe.
I am very afraid for my safety as well as that of my family’s because I believe this gang has associations with the local authorities who would protect them and would not protect me. My Father reported the matter to Police but they have not investigated it.
Lebanon is a very small country it has a lot of Police corruption and I do not believe that the local authorities are willing to protect me from this gang and due to the size of the country being so small I would not be able to relocate to a safe place at all. lt is virtually impossible to hide from someone in Lebanon and I know this gang will track me down and harm me or even kill me if I do not obey their commands.
I have limited money and [number of] children and a wife to support and If I were to die or be harmed my family would suffer immensely. I do not want my children to grow up without a father or my wife to have no husband to support her and help her raise our [number of] children.
I am in a constant state of fear of going back to Lebanon. I have depression and anxiety and I don’t leave my house very often because I cannot stop thinking about this issue in Lebanon and the implications it will have on my family. My children deserve to grow up with their Father and they should not have to suffer losing a parent at such a young age.
I cannot bear the thought of losing my Father or Mother or my wife or children and I am begging the Australian government to grant me asylum in Australia to ensure my safety and wellbeing and to enable me to be with my wife and [number of] children.
AAT Hearing
The applicant’s wife was sworn in as she wished to give evidence and then left the room while the hearing was conducted. The applicant was advised that he had been requested to provide some information prior to the hearing but none had been received. The adviser stated that a large volume of Arab language documents had been received just prior to the hearing and she wasn’t yet sure whether the applicant had the financial means to have these translated.
Asked what the documents were that had been presented, he claimed they were regarding the court in Lebanon. Asked what they were exactly, he claimed that they were regarding a court case in Lebanon. Someone made a complaint against him in 2012 and he had been unable to receive a passport. Asked exactly what documents he was providing given the Tribunal requested specific documents, he said it had been an obstacle and this is what he wanted to present. He said the embassy refused to renew his passport.
Asked of there was correspondence between him and the embassy/consulate and he repeated that the embassy had refused him a passport. He was again asked whether he was providing documentary evidence about his correspondence relating to his alleged passport refusal, he again repeated that he had his passport was refused and said he had the correspondence. Asked what form that took – letters or emails. He said that he had a paper saying that the passport had been refused – he had a form saying he had an issue in Lebanon. It was put to him that this should be translated easily.
Asked if he had the detailed timeline that had been requested given it didn’t need translation, the adviser said she would need to re-check the request. She was advised that the request was pretty clear and she said she would need to get instructions from the applicant. The member then said the hearing would be adjourned while the adviser and the applicant spoke and cleared up what documents that had been requested would be provided.
On return, the adviser stated that there were no documents relating to a passport application in 2012 – he attended in person and there was only verbal communication. Regarding the other Arabic documents there was a power of attorney from his brother for his father to attend the court. She hadn’t received other instructions by the time the adjournment was over. The applicant was asked of he was presenting any court documents regarding the resolution of his issue and/or his arrest warrant. He said they were legitimate court documents issued by the court in Zahle. It was the criminal court in the Biqa’.
Asked of he had evidence of correspondence with the lawyer and financial transfers for services provided and he said that there were. He was asked and said that he had the timeline as well. Asked why they weren’t provided prior to the hearing he said he didn’t know what was wanted and the consulate took a long time to answer the phone and he couldn’t go there. Asked why he couldn’t go there, he said he didn’t know what the COVD situation there was and he wanted to talk to them.
He believed the court case was resolved in 2016 or 2017. He said he received a police check from there saying he had no convictions but it was a trick and they would arrest him if he returned. Asked of he had a passport issued, he claimed there were changes and he had to wait for two to three months but his wife handled this. It was put to him he would have had several years to get a passport if the court case was resolved in 2016 or 2017, and he claimed that he had a passport (issued in [2017] valid until [2018]) – these dates were read out by the adviser.
He claimed that if he returned to Lebanon he didn’t know what was waiting for him but he would go directly to jail. Asked why he would be jailed, he claimed that in 2004 he was in Australia and there was a complaint made against him in 2012. His uncle was stopped when he went to Lebanon and asked about the applicant.
Asked who would jail him for what reason, and he said he didn’t trust the government that he had. Asked again why he would be jailed, he claimed that because in Lebanon of someone said something about you in Lebanon they would be jailed. He couldn’t have had anything to do with drugs as he was in Australia.
Asked if there was a current arrest out for him, he said there was a warrant for his arrest. It had been issued in 2012 based on a complaint from [Mr B]. He confirmed that an arrest warrant was issued for him [in] 2012. Asked if it was still current, he claimed that he did a power of attorney for a lawyer to be employed and now no convictions had been recorded but his uncle had been stopped and questioned on return to Lebanon as they thought the uncle was the applicant.
Asked again if there was still a current arrest warrant for him, he said that he didn’t know. He was asked to confirm if he had hired a lawyer and he said he had but no longer did. It was put to him that a lawyer could tell him if he was the subject of an arrest warrant. He said he wasn’t told anything and all he knew was that he had a document saying he had no convictions.
He was asked if his lawyer, father or any family relations had tried to establish whether there was an arrest warrant for him in Lebanon, and he claimed that he didn’t know. They had not tried to open the files again. Asked what he meant by that, he claimed he didn’t tell them what happened in court. It was put to him that he would surely want to know if there was an arrest warrant for him, he claimed his father told him that there was no arrest warrant for him – this was when the court proceedings were finished but he couldn’t remember when that was. He was given a no conviction warrant. Asked to confirm that he didn’t know if there was an arrest warrant out for him, he claimed he didn’t know as he hadn’t tried to apply for a passport since then.
After his passport had expired he hadn’t applied for a new one. Asked why he thought he would be jailed on return to Lebanon given there was no conviction recorded against him and his father told him that the matter was resolved, he claimed that he didn’t trust his government and his uncle was stopped at the airport in Beirut and questioned for a few hours. Asked why he assumed he would be jailed, he claimed that because they had different dates of birth the authorities released his uncle telling him that he wasn’t [the applicant] who was the person they were looking for.
Asked why they would tell his uncle that they were actually looking for the applicant given he would be likely to tip the applicant off, he claimed that it was because his uncle had the same name. He was told it still made no sense why the authorities would tip him off, he claimed he didn’t know why but he didn’t trust the authorities.
It was put to him that in his pre-hearing submission it stated that he had told his adviser that the threats of harm to the applicant and his father no longer existed. He was asked why this appeared to be at odds with what he was claiming at the Tribunal today. He claimed that his father went into a disagreement with [Mr B]. He was again told that the submission advised there was no dispute any more – the inconsistency was also pointed out to him for a third time, with the submission dated 7 December read out to him.
He was asked, and said that he understood what was put to him. He said that he didn’t follow up on this dispute as [Mr B]’s claim was wrong as he wasn’t there. It was put to him that the Tribunal had to assess his credibility and his claim regarding the harm he feared had changed in the space of a week between the submission and his claim at Tribunal. He said he had proof from the court and that his father had been threatened so he couldn’t return to Lebanon. It was again pointed out to him that he had said on 7 December that he no longer feared any harm.
He then said there were threats to his father as he had given him power of attorney and this was now a family issue. He was in detention when this was happening in Lebanon and his wife was looking after this. He was again asked why he said a week ago that he no longer feared serious harm, and he claimed that he had only been asked if his issue had been finished and he said yes and that was all he said – he had a friend who was interpreting and had no idea what his friend said.

He brought his friend with him and he didn’t know what his friend said and then the applicant again noted that he had a document that said he had no conviction. He was no longer interested in this issue as his main issue was his children. It was put to him that he had made a claim and had not withdrawn it – he said he was no longer interested in this issue. It was put to him that the Tribunal needed to establish his credibility regarding all his claims.
He claimed he was truthful as he had been here since 2004. It was put to him that he had claimed there was still a valid arrest warrant for him yet at hearing he said he didn’t know. He was asked why there was an inconsistency, he said that he had the document but didn’t trust the government.
It was put to him that his entire claim regarding the drug issue relied on his oral testimony and the Tribunal wa shaving a hard time believing him. He said he had the docuemtns and was asked if they were originals and he said they ere. Asked if they were the originals of copies and he said they were sent by fax so he was told they would be copies. The advised stated that the documents given to her appeared original as they had stamps on them.
It was put to him that the Tribunal would look at the documents and assess how much weight to give them. He was asked if he had ever been advised that the Lebanese government was seeking his extradition, and he claimed he didn’t know. He was asked why the Lebanese government wouldn’t seek his extradition if they knew he was here and he was facing drug charges. He claimed the Lebanese government let him come here in 2004. He was asked whether he thought it strange that they had not sought his extradition if he had been here since 2004, and he claimed they didn’t ask for his extradition as they came to his village looking for him. It was put to him that travel records would have shown he had left. He claimed that they asked the mayor about him after the complaint was lodged in 2012.
He was asked why he never attended his DIBP interview and he claimed that nobody told him anything. He was also asked why he had been sent numerous requests by Department for information to help them determine the nature of the relationship but he had not provided that information and he never sought a merits review after his visa was refused. He claimed he didn’t know anything – he had a lawyer in [Suburb 4] but he didn’t tell the applicant anything. He was told he had to provide a document for the Minister which he did.
It was put to him that the adviser’s submission said that the Department actually spoke to him personally to confirm address details – he claimed that he went to them to speak. Asked when this was, he was told it was 2007. He had also given the email address he wished to be contacted on, and the interview invitation had been sent to that address yet he claimed that he had never received anything. He claimed he didn’t know how to use email – his wife did. They spoke to him once which was about 2007 he thought.
It was put to him that he had lodged a protection application in 2017 and it was his responsibility to either check the email address or make sure someone checked it – it was not someone else’s responsibility and he was asked why he didn’t attend. He again said he trusted his wife and she was the one who could read emails. It was put to him that as an adult it was his responsibility to make sure the address was checked every day after he submitted a protection application. He said he had not understood this previously and was sorry.
He was asked if he lived with his wife and children and said he did. He said that he had always lived with them – asked of there had any breaks in this arrangement besides when he was in detention, he claimed that he was there all the time. It was put to him that he had been subject to an AVO and was asked if he lived at home during this time and he claimed that he didn’t but he said that used to go back home. Asked to clarify this he said that he didn’t live at home at this time but lived with his sister and with friends because he couldn’t afford to rent. He couldn’t remember how long he lived apart from her – it depended on the court proceedings.
Asked how many AVO he had been subject to, he claimed he wasn’t sure but it was three or four. The last AVO was taken out around two or three months ago. It was nothing really – he spoke in Arabic and she misunderstood. Asked again when the last AVO was taken out, he said that he couldn’t remember. Asked what year the last AVO was, he claimed that it was probably this year (2020). He said that the AVO had been taken out a few months ago.
Asked if he worked, he said he wasn’t allowed to. He had worked a long time ago and had gone on a trial basis with someone but was caught by Immigration – it was perhaps 2016. Asked what he did during the day, he claimed that he sometimes took his kids to the park or [shop] or played with them. In the past he had been on the wrong path. Asked what he meant by this, he claimed that he was lost and was on the wrong path and now wanted to spend time with the children. Everyone made mistakes but he had corrected his by waking up to himself.
Asked if he had much to do with his children’s schooling, he claimed that he had no licence to drive and it was far away. His wife drove them to school. Asked if he attended their school activities and attended parent-teacher nights and the like, he claimed that he did sometimes, sometimes not. Asked why he wouldn’t be there all the time if he wasn’t working, he claimed that sometimes he was tired and their mother took them and he did housework. It was put to him that he could still do this and attend such meetings in order to learn how his children were developing. He claimed that this was correct but he played and walked with them and his son wasn’t too much in school and he controlled his stress and took him for a walk.
It was put to him that his adviser had sent some e-mails about his children and they were sent to his wife and made no mention of him at all. He was asked why this was the case, and he said that she transported the children. It was put to him that the emails were only addressed to his wife and the text only referred to his wife, so it appeared that the teachers didn’t seem to associate him with their childrens’ development. It wasn’t addressed to the childrens’ parents. He said he didn’t know why that was but he did get some papers from school he had to sign. He used to walk his son to school when they were close but would leave him at the gate and then leave. Now they had been moved he couldn’t do anything. Asked of he had many photos of him with the children, he claimed that nobody told him anything about photos.
The applicant’s wife attended as a witness and an interpreter was used so the applicant could understand. She said that she believed the applicant’s court case in Lebanon had been resolved but that huis uncle had travelled to Lebanon since then. She believed it had been resolved in 2017. His uncle had been taken into custody and questioned for a few hours. She knew this because his uncle told the applicant and the applicant told her. She essentially repeated the story that the applicant had told the Tribunal.
She said he feared the government would arrest him at the airport, but even if he was to be deported there was no work in the country and she didn’t know when he would be allowed to return to Australia on a spouse visa. She said they had had troubles in their marriage but had worked through them and they had raised [number of] children and he was supportive of them.
It was put to her that she had taken out several AVO against the applicant – she said there three or four and the last was a few months ago. She claimed that in the most recent AVO issue, there was a mistranslation on her part of something he said in Arabic. It was put to her that mistranslating something didn’t normally lead to calling the police and seeking an AVO and it must have been more than simply a mistranslation. She agreed that it was an argument that escalated
Asked why, given this it was in the best interests of the children for the father to be around in the face of several AVOs. She claimed that their arguments had never occurred in front of the children and his relationship with the children was different to hers – he was calm with them and was friends with them. She claimed that she also caused arguments.
She was asked about parent-teacher interviews, she said she went on her own and there was a language barrier and she would have to translate and there wasn’t enough time. She did all the schooling. He had been a few times when they first went to high school. It was put to her that the emails from the school only referred to her, and not ‘parents’ or ‘Mr & Mrs’. She said he had signed the enrolment forms but she looked after the schooling of the children. She claimed that things such as school fees they had both their names on the letters. She agreed that she was the point of contact for their schooling issues. It was put to her that they would not lose much in terms of their education if he wasn’t around given she was the education point of contact.
She agreed that he could do more in relation to their schooling and claimed that he didn’t leave the house much and had been diagnosed with anxiety and depression. She also claimed that her husband helped with their son’s behavioural issues and was able to calm him down.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] August 2004 on a provisional spouse visa and later applied for a protection visa on 17 November 2016. He is a [age] year-old married Lebanese male. He claimed that he would be jailed if he returned to Lebanon because of accusations concerning drugs that involved him.
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.
I have taken into account the applicant’s claim, and that of his wife, that he had been diagnosed with anxiety and depression and was on anti-depressants. I am unable to lend these claims much weight as a reason to explain the various inconsistencies in his evidence. No documentary evidence was provided to support this claim about menta health issues or to give the Tribunal a sense of what if any impact it may have on his ability to give evidence. Regardless, there was nothing in the presentation of his evidence that would indicate that medical issues could account for the inconsistencies.
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 that he fabricated his claim in order to be granted a protection visa.
Drug gang
In a pre-hearing submission the applicant claimed that he no longer feared harm from the drug gang members as claimed in his original protection visa statement as the threats were no longer ongoing, I have nevertheless still addressed the claim for completeness’ sake as well as the fact that no additional information was given regarding any reasons as to why the threats were no longer ongoing,
I do not accept that the applicant was ever falsely accused by some individuals in Lebanon of being involved in drugs, that an arrest warrant was issued for him, that threats were made to shoot him or against his father, that the Lebanese authorities came looking for him in his village in 2012, that his uncle had been stopped at Rafiq Hariri airport in Beirut in the mistaken belief that he was the applicant, or that he would be jailed by the police if he returned.
To begin with, the timing of the claim is suspicious – one week after his request for Ministerial Intervention was rejected in November 2016 he submitted an application for a protection visa.
There are a number of other reasons why I find this claim to have been fabricated, and I have listed them below as a way of capturing the inconsistencies inherent in the claim and lack of evidence to support it:
a.The applicant was asked prior to the hearing and during the hearing to provide a detailed timeline regarding the issuance of the arrest warrant, the court proceedings and the hiring of the lawyer. Despite this, none was ever forthcoming;
b.He was also asked to provide correspondence between the lawyer who was allegedly hired to deal with the issue and the court, as well as correspondence between the applicant and the lawyer. He was also asked to provide a copy of the arrest warrant. Again none of this was provided;
c.The applicant did provide a copy post-hearing of what he claimed were a copy of the relevant court document and two witness statements that implicated him in drug-related activity. Neither of the statements were signed or dated. The court document says that an arrest warrant for someone with the applicant’s name was issued [in] January 2002 for drug-dealing. Yet the applicant’s post-hearing statement says that he was accused of drug-dealing by his one-time friend [Mr B] after [Mr B] was arrested [in] March 2012. Not only does the date of the alleged arrest warrant pre-date the alleged accusation of his involvement by a decade, in his protection visa application statement he claimed that he did not know [Mr B] personally, yet in his post-hearing submission he claimed that [Mr B] was his ‘one-time friend’.
I do not accept that the applicant’s drug charges are ‘still live’ but that no court date had yet been set. The court document he provided was more than six years old and it is reasonable to believe that a court date would have been set in that time. The claim that the charges were ‘still alive’ is also inconsistent with his claim that the fear of serious harm from [Mr B] and others (including the criminal gang) is no longer ongoing, given that the cause of the alleged dispute with the applicant was caused in whole or in part by the legal proceedings they were allegedly subject to.
I also do not accept that the applicant would be jailed by the police if he returned to Lebanon. He was not coherent with the reason for this claim other than saying that he didn’t trust the Lebanese government. Nor do I accept that the applicant has been refused a Lebanese passport – this relies solely on the applicant’s oral evidence which I have found to lack credibility.
I have taken into account the wife’s evidence regarding the applicant’s uncle being stopped at the airport however I end it little weight given she is not an objective witness and had based her evidence on being told by the applicant that the event had occurred.
Children
The pre-hearing submission requested that the Tribunal address the best interests of the children in its finding and I do so here. I have already found that there is not a reasonable chance that the applicant faces serious harm on return to Lebanon. As per AXL17 v MIBP (No 2) (2019) FCA 778, there is no requirement for the Tribunal to consider the best interests of the applicant’s children in determining the applicant’s ability to meet the refugee or complementary protection under the Act.
I will however address the issue of the applicant’s children for completeness sake. I accept that the applicant and his wife have had [number of] children together, all of whom are school age Australian citizens. One of them has behavioural difficulties at school. I also heard strong testimony from the applicant’s wife and read letters from the children attesting to their desire for the applicant to stay in Australia and the pivotal role he has had in the children’s upbringing.
I have also noted the pre-haring submission from the applicant’s adviser that noted the applicant had had criminal convictions in 2006 and 2007 that did not result in terms of imprisonment, and that while he had breached an AVO this had occurred six years ago and no conviction had been recorded. It also claimed that he had been a full-time father on a daily basis for the past 16 years and had taken an active involvement in his childrens’ upbringing.
During the hearing it emerged that there were ‘three or four’ AVO (post-hearing the applicant’s wife said she had been told there were only two recorded on the police system), one of which was in 2020. This would indicate that there is a pattern of behaviour on the applicant’s part. I do not accept the wife’s claim that the most recent one was simply the result of her mistranslating something the applicant said in Arabic given such a minor issue is unlikely to have led to an AVO being taken out.
Nor do I accept that they have been able to hide their arguments from the children. The 2014 AVO for instance (provided post-hearing) talks of how the applicant overturned a table in the dining room, damaging the wall and that when the police came he was highly agitated and had to be arrested and taken to the [Suburb 5] police station. It is unlikely in the extreme that the children could hot have been unaware of this event at least.
I also do not accept that the applicant has been a full-time father at home for 16 years. During the hearing he admitted that he had lived with his sister at the time of the first AVO although he couldn’t recall for how long this was, while his wife claimed post-hearing that he had lived away only for one week at a time during each of the AVO. I note however that the 2014 AVO forbids the applicant from being within 50 metres of the residence and from communicating directly with his wife, and that the order was valid for a year unless amended. No evidence of any amendment was provided. I also note that the birth certificate for the child born in 2008 has each of the parents residing at a separate address. The applicant also claimed that he had tried to work on at least one occasion until discovered by DIBP.
I note that the applicant does not appear to have much to do with his children’s education. His wife drives them to school as he does not have a licence. The email correspondence provided pre-hearing from the school was addressed only to the wife as an addressee and in the text. The wife claimed that it was normally her that attended things such as parent-teacher interviews given she would have to interpret everything for her husband and this would take too long. This however is at odds with the claim in the submission that claims their children talk to the applicant in English because they can’t speak Arabic. This would indicate a level of proficiency in English not acknowledged by the applicant, and means that his absence from school activities cannot be related entirely to poor language skills.
There is also the issue of maintaining the integrity of the immigration system. The applicant has failed to provide information to the Department when requested of him on several occasions, nor did he turn up to his Departmental interview when requested. I have also found that his protection claim has been fabricated. I do not accept that he didn’t receive the interview request given that it was sent to the address he had provided and it requires on his oral evidence which I have found lacks credibility.
The children have the support of a number of other maternal family members resident in Sydney, and will be able to maintain contact with their father virtually and would be able to visit him in Lebanon. I note that evidence was presented regarding his ability to calm down a son who has behavioural issues with respect to school, there was no medical evidence presented in support of this claim and there was no indication that the applicant is particularly engaged with his children’s education. While it is normally in the best interests of the children for a father to remain with the family, given the applicant’s criminal record, history of domestic violence and disregard for the immigration system through his ignoring of information requests and submission of a fabricated claim, I am not satisfied that in this case the applicant’s conduct warrants these interests overriding the decision to refuse the applicant a protection visa.
Other Issues

I do not accept that he would be jailed because he did not trust the Lebanese government. The claim was not particularised although I take it that he meant that the government authorities were influenced by the drug gang. Given I have found the claim regarding the claim by drug gang members against the applicant to have bene fabricated, I have found there is no merit in this claim either.
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 s 5J reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever accused by a drug gang of being involved in drug-related crimes, was ever subject to an arrest warrant or court proceedings because of it, or was or would be threatened by gang members because of it, or that he would be jailed by the police on 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).
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
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.
Rodger Shanahan
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2021] AATA 362

15 January 2021

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Appeal