1709237 (Refugee)

1709237 (Refugee) [2021] AATA 5046 (15 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709237
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Rodger Shanahan
DATE:15 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 April 2021 at 9:48am
CATCHWORDS
REFUGEE – protection visa – Lebanon – fear of harm from wife’s family over house ownership dispute and cousin’s wife’s family over personal disputes – threats but no harm – credibility – inconsistent claims and evidence, especially about house ownership and divorce – no ownership documentation provided – claim that agent incompletely filled in application – no post-hearing response provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 7 April 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 25 August 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.
CLAIMS AND EVIDENCE
Protection visa application
The applicant provided the following statement as part of his protection visa application:
I, [the applicant] date of birth [Date] married to [Ms A] and
have three children. I am a [Occupation 1] in Lebanon at [Address 1]. I also own a home in [Location 1] in the North of Lebanon. I have had to face a lot of problems with my in laws. This is mainly due to the fact that not register the property I own in my wifes name and my name. I did not want the arguing to continue as it caused a significant amount of damage to my marriage and our family, I decided to register the property in her name. However, straight after registering the property they attempted to kick me off it. They purposely picked fights over situations just so an argument would occur.
The situation became worse over time. It eventually reached a point where they threatened to send people to kill me. They ruined my reputation at my workplace and I lost my job, they ruined my marriage. I decided to pack my bags and leave. I got an offer to work in a [Workplace] in [Country 1] due to the experience I have, I took the offer straight away and worked in [Country 1] for a period of 3 years. During this working period, I had some issues in relation to my salary. My boss did not pay me the right amount as it was stated in my working contract, when I asked for the rightful amount of payment, he would make excuses and then get angry with me. I did not make a formal complaint as I no longer had a home back in my home country and I was genuinely worried that the salon I was working for would cancel my sponsorship.
My sister, currently residing in Australia sent me an invitation to come see her as I have not
seen her in many years, I accepted the invitation and came for a short holiday that I asked my boss for and he agreed. However while I was in Sydney news came to me that the company I worked for did cancel my sponsorship and that I had lost my job in [Country 1].
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I have much appreciated the support from my family here in Australia and I very much enjoyed staying in this country, this is why I have applied for protection as I have no other option and it is the only place where I am safe due to the fact that I cannot head back home as I am on a hit list and I also have no home to head back to. Please take my case into consideration as my life back in home country has been destroyed and I have no other options.
AAT Hearing
He claimed that when he came to Australia he presented all his claims but not all of them were written down and there were issues regarding Hizbullah and Syrians because these (people) were dealing with them. He was asked about the medical information relating to a car accident he had given the Tribunal in February 2021 and was asked if it had any relevance to this claim. He claimed that he was asked if he had any additional information so he told them about the accident and he was unwell and it prevented him from attending in Sydney. He agreed that there was no problem with his appearing in Canberra.
It was also put to him that he was asked about providing information such as the title to his house in Lebanon and was asked if he had received the request. He confirmed that he had been requested to provide one and he claimed that he spoke to the mayor who was familiar with the issue and sent him a copy. It was put to him that he was given the name of a specific website to get the title from. He repeated that he called Lebanon to provide that information. It was again put to him that he had been given the web address of the Finance Ministry and asked to provide a copy of the title from this site. He said he received the email about the proof of the title and the dates of sale and he got this from the mayor and forwarded it to the Tribunal. He was told the Tribunal had not received this and had been specifically asked to provide it from the Ministry website and had even been given the address to access it.
He was asked how he should have got it from and asked if he had to get it from the governorate – he was told that the direction in the letter was quite straightforward and he was told where to access it from. He said that he google translated it and this was what he got from the translation and he got the title from Lebanon, got it translated and forwarded it from the Tribunal’s email. He was told that nothing had been received and he would have to re-send it. He claimed that the translator had the copies on his phone, and he was told that the Tribunal just needed the document.
He said that he began writing his claim but his lawyer said that he just had to sign the form. He still had the statement he had written. Asked what parts of the statement that had been submitted were incorrect, he claimed that he did not know what the lawyer had written in the application. The lawyer asked the applicant to write the story of the property and what had happened but the applicant didn’t know what he wrote as the advisor still had the claim that he had written.
Asked if he had ever seen or requested to see the original application that the lawyer [Mr B] had written, he claimed that [Mr B] had provided him with two pages where the writing was blurry and not clear and asked him to sign it and assured him that he would write the rest of the story. Asked if he had requested a copy of his protection visa application through FOI, he claimed that he had requested it but he couldn’t get it. Asked if he had made a formal complaint against [Mr B], he claimed that he didn’t like complaining per se but he had requested [Mr B] to give him a receipt and gave him a receipt from another place and he discovered there was some kind of game they were playing and were trying to get him deported from the country. He forwarded the receipt to the Tribunal.
Asked if he had ever been made aware previously that he could make a complaint about this person, he claimed that nobody had ever mentioned anything to him. Asked the question again, he claimed that nobody had ever told him that he could make a complaint against this [Mr B] person.
The applicant claimed that if he returned to Lebanon people known to be very close to the regime and the party would send people to shoot or stab him. Asked who would do this and why, he claimed that his cousin’s wife ([Ms C]) and her brothers promised him residence in [Country 2] if he paid money. He paid them half the money and he stayed at their house for a month but they just employed him as a servant and they did nothing about his visa. He complained to his father who said he should return to Lebanon. [Ms C] is still in [Country 2] but her siblings in Lebanon.
He then said that [Ms C] and her brothers would kill him because of a family dispute with them and also because of what he had witnessed regarding [Ms C] in [Country 2] – she wanted vengeance against him and everyone knew they had good relations with the Syrians. He had this fear from the time he returned to Lebanon from [Country 2] from the end of 2014.
He was able to find another job in [Country 1]. Asked when he first feared being harmed by the [C] family, he claimed that it was about two weeks before he arrived in Australia (June 2016). Asked if he had any other claims to fear serious harm, he claimed that this was the only claim and he knew them very well. He had witnessed other people being killed by them.
He said that earlier there had been some threats and fears regarding his wife’s property but since he had given up all his rights to the house he didn’t have any fear from her family members. He agreed that he only had a fear regarding the [C] family. Asked about his claim made in his application relating to his house he claimed that he had given up all his rights so he didn’t think they would harm him, but there were no guarantees. It was put to him that he either had a claim to fears serious harm or he didn’t, so he had to make a claim or say that he didn’t have one. He was asked whether he feared any serious harm from his family because of the property dispute and he said that he didn’t as he had given up his rights.
Asked if he had divorced his wife, he claimed that he had divorced her verbally but had not finalised it in the religious courts. He said that in Lebanon once the man said he had divorced his wife she was considered divorced. Asked when he told her she was divorced, he said that it was perhaps seven years. Asked what year he divorced her, he claimed it was probably 2014 when the problems arose – it was probably six or seven years ago. Asked when in 2014 he divorced her, he claimed that he didn’t recall exactly but it occurred when he went to Lebanon and after her family had sent someone to humiliate him publicly.
Asked why he hadn’t formalised the divorce, he claimed that once a husband told his wife she was divorced she was considered divorced. He said that he was very secretive whenever he visited Lebanon. Asked again why he had just pronounced the divorce seven years ago but never formalised it, he claimed that he didn’t because of all the things they had done to him. He was asked why he gave up the rights to the property if he hadn’t formally divorced, he claimed that he had received so many threats. He couldn’t sell his half of the property and they wouldn’t sell theirs to him. He didn’t want to finalise the divorce so that she remained neither married nor divorced as punishment.
Asked when he gave up the rights to the property, he claimed that because of the threats and pressure and he noticed that his children were growing, he went to the mayor and told him that he would forego his share of the property which he then noted as at [date] June 2016. He agreed that his fear from his wife’s family ceased with effect this date. Asked if the property was in his name, he claimed that the property was initially in his ex-wife’s grandmother so they then went to live with her and look after her. His wife’s family then blamed him for living off their grandmother and they gave him a hard time. He then made an arrangement with the grandmother to buy half the property from her and paid cash.
He put this share in the name of his wife on [date] July 2000. The grandmother also gave up her share to his wife as a reward. But he never thought he would be in this situation. Asked why he didn’t have half the house in his name if his wife was gifted half by her grandmother. He claimed he didn’t expect to have this outcome in life (in the family dispute). Asked what rights he had given none of it was in his name, he said he paid cash. It was put to him again that none of it was in his name.
Asked if he went to court to prove that he had paid for half of it so he could get his name on the title, he claimed that he tried and went to court but everyone denied he ever paid for the property. Asked what court he went to, he claimed that he went to the court in Tripoli and they told him to go to the municipality and because they were denying and because there was no paper signed they couldn’t do anything for him. Asked if there was any evidence that he went to court, such as engaging a lawyer, he claimed there wasn’t as when he went to court and then municipality they told him verbally that he had no case.
It was put to him that one normally went to court with a lawyer, and he claimed that he went to the municipality first. Asked why he did this given he would normally approach a lawyer given the nature of the issue, he claimed that the municipality people told them that even if he got a lawyer and went to court he would lose as he had no evidence. Asked when he went to the court, he claimed that he went in 2014 when he returned to Lebanon.
Asked why, if he had no case and no paperwork to prove he had paid any money, he still had to go to the mayor to waive his right, he claimed that because he was under pressure where he lived so he wanted to put an end to these problems and the family required that he waived his rights via the mayor to end the dispute. It was put to him that this made no sense as two years before he established that he had no rights, so waiving rights that he never had made no sense.
He agreed with the Tribunal but said that the family wanted a clear statement that he had no rights to the property. Asked if he was fearful of his relatives up until the time he signed the form in 2016, he agreed that he was every time he was in Lebanon and they would insult and pressure him for this statement. He just wanted to put an end to this vicious cycle and walked away and left.
Asked if he feared serious harm from his in-laws before June 2016 he said that he absolutely did. They had sent people with threats and threatened him themselves. Asked if he had told DIBP or in his statement about going to court regarding his right to the property, he claimed that he hadn’t because no one asked him.
Asked about the [C] family problems, he claimed that he paid them money to go to [Country 2] for residence and a job. He went there and he stayed with them for 11 months or so. His cousin (whose house it was) promised him much but delivered nothing. He was made to do menial jobs at the house. He arrived in 2013 and returned to Lebanon in early 2014. He witnessed many things the wife did at the house. Back in Lebanon he worked with his brother and went to a job in [Country 1] in 2014.
He went to [Country 1] and worked in a [Workplace] and returned to Lebanon in 2015 for his daughter’s engagement. He didn’t tell anyone, went to the party for half an hour and told them he was returning straight to [Country 1] but stayed with a friend near the beach for a few days before returning to [Country 1]. His in-laws weren’t at the party as it was very small. His wife was there, along with her siblings. It was put to him that he still feared serious harm from these people and yet he still went to the party. He agreed that this was dangerous but he was still the father so he went to give her his blessings and only stayed a half hour – he was in Lebanon for a week, but he told them at the party that he was leaving straight away. He stayed with a friend by the beach at [Location 2] in Tripoli.
Regarding the [C family], after he returned to [Country 1] he began receiving calls from his other cousins who were the siblings of the [C family] in [Country 2]. They asked him what happened in [Country 2] to make him leave. He told them what he had seen and the [C family] were tight with the Syrian regime and he disclosed private information. One of the cousins (from [Country 3]) then called him back and said that the female [C] in [Country 2] was very angry with him for revealing these private pieces of information.
Asked what information he revealed, he claimed that some of the things were that she would drag people to her place, establish relations with them and then get money from them. This was without her husband’s knowledge. In 2016 she came to Lebanon (when he was there) and she sent her brothers to him and threatened to kill him). She had previously sent people to kill someone else in [Country 4].
Asked what he meant by dragging people to her place, she said that she would bring them home, photograph them and record their conversations and would then blackmail them. Again asked what they were talking about and what the photos were, he claimed that these were sexual relations. She had affairs with people and record their encounters and blackmail the men. Asked if he had told DIBP about this during his interview, he claimed that he mentioned this at his DIBP interview but there was no mention of the [C family]. Asked if he had mentioned that [Ms C] was having affairs and photographing them, he claimed he wasn’t asked this question. It was put to him that he didn’t need to be asked the question. He said he answered what he was asked.

He was asked what he told DIBP the reason the [C] family was after him, he said they were after him but he never told them the reason. Asked to confirm that he was never asked the reason why the [C] family was after him, he said that DIBP asked why they were after him and he mentioned that they promised to take him to [Country 2] and he paid them half the money and when he went to Lebanon he talked about the family but he was never asked what he talked about.
He was asked why he never thought to mention this blackmail/affair issue to DIBP given its importance, he claimed that during this interview he was very confused and he had the problems with the lawyer (related to an alleged dispute with his sister in Australia) and he had been detained for a night at the Immigration centre and he didn’t really know what he was saying at the interview. He was scared to disclose this sensitive information at the interview but he had taken an oath here and was telling the truth. It was put to him that he had taken an oath at the DIBP interview and he said that he couldn’t recall this.
He was asked if he still had a problem with his sister, he said that he had stayed away from her and didn’t know what they were doing. Asked if he had consulted a lawyer regarding his sister, he said that he was waiting to tell the story to the Tribunal. It was put to him that the Tribunal was only interested in harm that he may face him in Lebanon. It was put to him that he had only made one claim and it related to the [C family] in Lebanon.
He claimed that he had witnessed what others had never seen before. Asked when he had been in Lebanon between 2010 and 2016, he said that he was there 2010-13, then in 2014 (after [Country 2]), 2015 (daughter’s engagement) and in 2016. Asked if he visited Lebanon when he was in [Country 2], he said that he didn’t as he was kept in the [C family] house as a virtual servant. He never returned to [Country 2] either. Asked if he experienced any problems in Lebanon in 2014, 2015 or 2016, he claimed that when he returned from [Country 2] he was under severe stress and didn’t know what he should say. He told his father everything but then went to [Country 1]. After he returned from his daughter’s engagement he spoke to [Ms C]’s sister (in [Country 3]) who warned him that [Ms C] was a bad woman and he should be careful.
It was put to him that it was strange that [Ms C] was so indiscreet as to have affairs and take photos while he was still in the house. He said this may sound right but whenever she wanted to see someone she told him to leave but one day she went out and left her phone and he looked at it and saw the photos. Her husband then began to suspect the applicant was having an affair because he was on the house all the time. It was put to him that the Tribunal found it hard to believe that she would leave her phone without any security features just so he could pick it up and browse, particularly given what she allegedly had on that phone.
He claimed that he had spent 10-11 months at her house and he had worked out the pass codes on her phone as he had seen her use it. Asked why he was checking her passcode, and that it wasn’t very honourable to break into [Ms C]’s phone when she left it behind. He agreed it was intrusive and he shouldn’t have done it but it was because of all these conversations that he had overheard and he wanted to know more. He thought she was a dangerous person and he wanted something to protect himself. But his disclosure put himself in an even worse situation.
He asked if he could tell his story about his dispute with his sister in Australia, and he was asked if it had anything to do with fearing serious harm in Lebanon, he claimed that the [C family] were very dangerous and he was at risk from them in Lebanon. He wanted to explain why he had remained unlawful in Australia. He was told that it had nothing to do with his facing serious harm in Lebanon. He repeated that the [C family] would never leave him alone.
He said that he was asked if he had lodged a complaint against [Mr B], and he said that [Mr B] had lodged his application late even though he signed it at the proper time. He also was made to look as if he lied to the DIBP official but he wanted to prove his credibility. He was told about s 424AA and it was put to him that he said today that nobody had ever told him previously that he could complain about migration agents like [Mr B] which was why he hadn’t made a complaint. However during his DIBP interview, he was told that he could contact MARA and report the person whose name was on the form he had submitted and also find out about [Mr B]’s registration. The DIBP officer even gave him MARA’s telephone number. This could go to issues of his credibility. He claimed this may be right but he swore that this was the first time he heard this. The officer may have told him but he had forgotten this and it was as if it was the first time he had heard this.
It was also put to him under s 424AA that he was asked whether he was married at his DIBP interview and had told the officer that he had religiously divorced in 2006 but had not formalised it but today he said that he had pronounced that he was divorcing his wife in 2014. In his protection visa application he said that he had separated from his wife in 2015 so he had given three different dates regarding his alleged divorce. The inconsistency called into question his credibility and the fact that he had never formalised this divorce raised questions in the Tribunal’s mind that he was actually divorced at all.
He claimed that he had said earlier he never formalised his divorced because he wanted to take revenge and wanted her to remain neither married nor divorced. He had told the truth. It was put to him that country information indicated that in Lebanon women could initiate divorce so she could formalise it if she wished so his ‘punishment’ wasn’t really a punishment. He then claimed that he had secretly been trying to bring their relationship back on track as she was the mother of their children and had been supporting and sending them money.
Also under s 424AA it was put to him that he was asked twice by DIBP why the [C] family would attack him – the first time he didn’t answer and the second time he said that it was because they had deceived him and ripped him off. Yet at the hearing he had said he had these secrets including about [Ms C]’s affair. This inconsistency called into question his claim that the [C] family was after him or that he had secrets about them. He claimed that he was happy to reply in a written submission if the Tribunal sent him these questions in writing.
He also said the interview was stressful and he was a bit confused because of what he had been through and he didn’t know what he was saying. Today he had disclosed everything. He was also scared to disclose the information regarding the affairs to the DIBP officer. It was put to him that he would not be given those questions again in writing as he had been given an chance to answer them but he would be given a small amount of time post-hearing if he wanted to answer them in a post-hearing submission.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] June 2016 on a tourist visa and later applied for a protection visa on 25 August 2016. He is a [age] year-old married Lebanese male. He claimed that if he returned to Lebanon he would be killed by members of the [C] family because of a family dispute with them.
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 some medical reports regarding a car accident that the applicant presented prior to the hearing but lend them little weight in determining the credibility pf his claims. He made no claim that they affected his memory and neither is there anything in the reports that would indicate that he had any memory problems
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.
Housing dispute
I do not accept that the applicant was ever involved in a housing dispute with his wife’s family, that they threatened him because of it or that he divorced his wife during the ordeal to punish her.
To begin with I do not accept that the applicant bought half of his wife’s grandmother’s residence but put it in his wife’s name. Prior to the hearing he was asked to provide a copy of the land title deed (including the records of sale) from the Lebanese Finance Ministry website and was even given the relevant web address to make the process easier. He failed to do this, and claimed that he had instead gotten a letter from the mayor attesting to his interest in the house. He never provided a copy of such a letter and, when he claimed that he had sent it to the appropriate AAT address he was advised that no such letter was received and he was asked to re-send it. No letter was ever received.
I also do not accept that the applicant ever sought to use legal means to claim his share of the house. He had no evidence to support this claim, and was inconsistent in his evidence saying that he had gone to court and then to the municipality, and later that he had gone to the municipality who told him there was no case he could present to the court. He also never mentioned this legal approach in his DIBP interview. I do not accept that he failed to do so because he was never asked – it is up to the applicant to make his case to the interviewer and this would have been a significant element in the case of someone claiming they had no recourse to prove their claim to a share of the house. His inability to mention this at the interview must therefore raise questions about its truthfulness.
Because I do not accept that he bought a half share in the house it follows that there was no dispute with his wife’s family over it. I also do not accept that he ever divorced his wife as a result of the alleged dispute. He was inconsistent regarding his claim to have separated from her; in his protection visa application he claimed that he had separated from her in 2015, at the DIBP interview he told the interviewer that he religiously divorced her in 2006, and at the hearing he claimed that he religiously divorced her in 2014.
He was unable to produce any independent evidence that he had divorced her, claiming that he had never formally registered it and had only done it Islamically as a way of punishing her so that she would remain in limbo – neither married nor divorced. Country information indicates that while divorce laws in Lebanon are not equal, women can initiate divorce proceedings.[1] Given this, it lacks credibility that his wife would be satisfied to stay in limbo for years when she had options to seek divorce from the religious courts. I do not accept that he was secretly trying to rekindle their relationship as he had never mentioned this previously and only claimed this was the case when the inconsistencies in his previous statements had been pointed out to him.
[1] Unequal and Unprotected: Women’s Rights under Lebanese Personal Status Laws, Human Rights Watch, 19 January 2015
I also do not accept that the threat from the in-laws was no longer an issue because he had formally rescinded any right to the property by signing a note to this effect in the presence of the mayor. It makes no sense that he would seek to waive his rights to part-ownership of a property regarding which he had no documentary evidence to support his claim, and that two years prior he had been told he had no legal right to. I do not accept that he wanted to put an end to the harassment from his wife’s family once and for all - It lacks credibility that they would continue to target him once it had been established that he had no legal right to any part of the property.
Dispute with the [C] Family
I do not accept that the applicant would be shot or stabbed if he returned to Lebanon because of a dispute that he currently has with members of the [C] family. To begin with it was never mentioned in his protection visa application and I do not accept that this was because the person who filled out his claim had done it incorrectly and left out this claim even though he had recounted it to him. This relies entirely on his oral testimony which, as was evident from his housing claim noted above, lacks credibility.
He has not made any complaint against the person who he claims allegedly did his protection visa application for him and, while I note that he said that he doesn’t like to complain and a failure to make a complaint is not in and of itself a reason to disbelieve the claim, when he was asked whether he had been informed previously that he could make a made a complaint against the person, he denied twice that he ever had been told of such an option.
The DIBP interviewer not only told the applicant that he could make a complaint but even gave him the number of the association to which he could complain or to find out about the advisor’s credentials. I do not accept that the applicant simply forgot he was told this as he was given two opportunities to answer the question and he was not hesitant or equivocal in denying that he had been given such information previously.
The account regarding the [C] also lacks credibility and has inconsistencies. While I accept that the applicant went to [Country 2] for work, I do not accept that he was duped and made to work like a virtual slave and on return to Lebanon he was indiscreet about discussing what he had seen going on in the [C] household regarding affairs and blackmail.
He never mentioned this reason for being targeted previously and when asked at the DIBP interview why the [C] would target him on return to Lebanon he simply claimed that it was because they had ripped him off in [Country 2]. There was no mention of illicit affairs or of attempted blackmail – I do not accept that he forgot to mention this because of problems he had with lawyer and a sister in Australia, because he had been detained for a night at an immigration facility, because of the stress of the interview or because he was confused and didn’t know what he was saying because of what he had been through.
I am not satisfied that a family dispute or a night in immigration detention would cause someone to forget to mention such a key element of their claim. And, given I have not accepted that any of his claims are true he has not ‘been through’ any situation in Lebanon that may have caused him to be confused. Also, given the centrality of his uncovering evidence of illicit affairs to his claim for protection I find it implausible that he would have forgotten to mention this at his interview but remembered so much about the other claims he has made. Nor do I accept that he would have omitted such a claim because of its alleged sensitivity yet been happy to make claims about him being treated as a slave in [Country 2] by the same family.
His purported uncovering of the affairs also lacks credibility. Given the sensitivity of the subject matter (illicit affairs) performed in a country with such strict prohibitions on such activity ([Country 2]) I find it strange to say the least that [Ms C] would keep video or photographic evidence regarding it on her mobile phone. It was even stranger that she would then leave her mobile phone in the house with a pass code that hadn’t been changed in the 10-11 months the applicant had been in the house and that she would be so lax in her personal security that she would have allowed the applicant to see what her pass code was. Any one of these issues would be enough to make me disbelieve the claim, however the combination of them makes the claim so implausible as to be unbelievable.
The applicant stated that he had issues with Hizbullah and the Syrian regime, however I do not accept that these are separate claims, but rather I am satisfied that they are intimately tied to his alleged dispute with the [Ms C] family because he claimed that the [C] family had good relations with the (Syrian) regime and ‘the party’ (HIzbullah means Party of God). Because I have found that the applicant has no dispute with the [C] family it follows that the applicant has no issues with Hizbullah or the Syrian regime.
Other Issues
Although they are tied to the claims above, the applicant has made a number of claims that I will address here for completeness’ sake. Given I do not accept he has any dispute over housing with his in-laws or with the [C] family for any reason, it follows that the applicant is not on a hit list in Lebanon, nor does he have nowhere to live. I also do not accept that the applicant had witnessed the [C] family kill people, that [Ms C] had had someone killed in [Country 4] or that she had sent her siblings in Lebanon to threaten the applicant.
The applicant was initially given until 2 March to provide additional information. He requested on several occasions that the Tribunal provide him with written questions for him to answer, however he was advised that he had been asked the questions and they would not be given to him in writing. He asked for an additional 14 days in which to answer but this was refused. However, given that an incorrect recording of his interview was provided to him, he was allowed until 5 March and then until 8 March to provide a post-hearing response. No submission was ever provided, nor did one arrive between the 8 March and when this finding was finalised.
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 ever had a half-share in his wife’s grandmother’s house or that this caused a dispute with his wife’s family, or that he has or had any dispute with the [C] family, 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 5046

15 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction