1713017 (Refugee)

[2018] AATA 2532

1713017 (Refugee) [2018] AATA 2532 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713017

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Shahyar Roushan

DATE:30 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 30 April 2018 at 10:06am

CATCHWORDS
Refugee – Protection Visa – Federal Circuit Court remittal - Lebanon – Religion – Sunni Muslim –Imputed political opinion – Membership of the moderate Islamic Unification Movement – Fear of harm from opposing political groups – Country information supports applicant’s claims – Reasonableness of relocation - Harm feared localized – Relocation available

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 426A, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

   BACKGROUND

2. The applicant, a citizen of Lebanon, arrived in Australia [in] March 2011 on a [temporary] visa. His [temporary] visa expired [in] July 2012 and he applied for a further [temporary] visa on 3 August 2012. That application was refused by the Department on 14 January 2013 and the then Migration Review Tribunal affirmed the decision.

3. On 5 June 2013, the applicant applied for a protection visa. A delegate of the Minister refused that application on 26 February 2014 and the applicant applied to the then Refugee Review Tribunal (RRT) for a review of the delegate’s decision. The RRT affirmed the decision under review on 22 July 2014 and the applicant sought judicial review of the RRT’s decision.

4. [In] May 2017, the Federal Circuit Court remitted the matter by consent on the basis that the RRT failed to consider whether it would be reasonable for the applicant to relocate given the generalised and sectarian violence in Lebanon.

5. The matter is now before the Administrative Appeals Tribunal, being constituted by the same Member who determined the applicant’s review application before the RRT.

   CLAIMS AND EVIDENCE

   Protection visa application

6. In a statement attached to his application, the applicant claimed that he was a member of the Tawheed Movement (also known as Harakat al-Tawhid al-Islami, or the Islamic Unification Movement (IUM)) in Tripoli. He claimed that the IUM was targeted by Salafi groups and the Future Movement who have called for the removal of the IUM from north Lebanon and have killed many of its members.

7. The applicant claimed that he was assaulted on ‘a few occasions’ in his [locality] in Tripoli and his car was vandalised. He could not report these incidents to the police due to the fact that the police intelligence unit backs the groups responsible. He was pressured by these Salafi groups to join them because they needed [people with the applicant’s skills]. He was threatened and assaulted when he refused to join them. He stopped going to work and did not venture outside of his house. He was being watched by these people and he was unable to attend the local mosque as he had done previously. He claimed that, in [2012], his friend and a fellow IUM member, [Mr A], was assassinated. Salafi groups are now in full control of north Lebanon and he fears being seriously harmed by these groups due to his membership of the ‘moderate’ IUM.

8. In support of his application, the applicant submitted a number of documents, including:

   a.    An untranslated copy of his [testamur] and related transcripts

   b.    A letter from [a particular organisation], dated [in] January 2009, stating that the applicant had been working [with the organisation] as [Occupation 1] since November 2003

   c.    News reports and articles sourced from the internet, relating to Salafism and its impact in Lebanon; clashes between supporters and opponents of the Syrian regime in May 2012; and shots being fired at the house of the leader of the IUM, Sheikh Bilal Shaaban, in Tripoli in November 2012.

9. The applicant attended a Departmental interview on 2 December 2013 and provided oral evidence in support of his claims. Where relevant, the applicant’s evidence to the delegate is referred to below.

   The review application

10. In support of his review application, the applicant provided a copy of the delegate’s decision to the RRT for the purposes of the review.

11. The applicant appeared before the RRT to give evidence and present arguments at a hearing held on 18 July 2014 (the hearing). Where relevant, the applicant’s evidence to the RRT is referred to below.

12. Following the remittal of the matter, the Tribunal wrote to the applicant and invited him to attend a hearing on 29 November 2017.

13. On 2 November 2017, the applicant forwarded to the Tribunal a completed ‘response to hearing invitation’ form, indicating that he wished to take part in the hearing.

14. On 22 November 2017, the Tribunal received a letter from the applicant, in which he stated the following (not corrected for spelling or grammar):

    Dear Sir/ Madam with reference to the above and my earlier advise to your office of attending the abovementioned interview now I wish to advise that I will not be attending due to health reason.

    Ever since the advise of the said interview I have been under a It of stress and depression having to remmeber painful! events and made even worse by current events in lebanon and could not health wise talk about it  or re visit such very traumatic  period in my life and currently seeking help from apprpriat health professionals, and would instead rely on the following documents I am submitting in support of my Case.

    1. Smart Travel Advise issued by the Australian Department of foreign affair and trade dated 11/11/2017 Current outlining the facts that all of Lebanon is not safe.

    2. Bundles of various Media reports outlining the danger Lebanon is currently facing as fallout of the Prime Minister Saad El Harriri resignation and also detailing how the country is Run by varioius Millitias.

15. The applicant did not expressly seek an adjournment and did not provide any medical documents. In order to be certain of the applicant’s intentions, a Tribunal officer contacted him by telephone on 23 November 2017. The applicant confirmed that he did not wish to attend the scheduled hearing.

16. In these circumstances, and pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

18. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

19. Australia is a party to the Refugees Convention and generally speaking has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

20. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

21. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, findings and reasons

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The Islamic Unification Movement

23. At the hearing, the applicant presented a straightforward account of how and why he had become involved with the IUM. This account was consistent with the evidence he presented to the Department. The Tribunal, therefore, accepts that he was introduced to the Movement by [Mr A], who had shown concern about the applicant spending long hours at [a particular location]. [Mr A] had gently encouraged him to attend the mosque and take a more active role in religion. Consequently, the applicant attended a mosque associated with the IUM and undertook to teach the Koran to [others].

24. The applicant’s evidence indicated that, whilst he considered himself a member of the IUM, he did not engage in any other activities relating to the Movement. He expressly stated in his evidence that he was not a prominent or a high ranking member of the Movement. The Tribunal accepts these claims. The Tribunal also accepts that he was known in his area as someone who was affiliated with the movement.

25. The sources consulted by the Tribunal identify the IUM as one of the most important radical Sunni movements in Tripoli. It was founded in 1982, and its leader, Sheikh Sa’id Sha’ban (now deceased), a former member of al-Jama’a al-Islamiyya, was extremely vociferous in opposing the actions of Syria and the Lebanese Communist Party during the 1980s. The Movement reportedly maintained a presence within Tripoli, seemingly confining itself to social/religious activities.[1] In 2005, following the withdrawal of Syrian forces from Lebanon, Hezbollah intensified its contacts with other Assad-backed groups in Lebanon in order to push back against newly empowered anti-Assad Sunni forces. In Tripoli, a predominantly Sunni town where Hezbollah itself has no real presence, by providing resources and mediation, Hezbollah managed to gather most of Tripoli’s pro-Assad Sunni groups under one umbrella.[2] The IUM was amongst these groups, which eventually joined the March 8 Coalition, an alliance of mostly Shi'a and Syrian backed parties led by Hezbollah.[3] By the time the Syrian revolution began in March 2011, Syrian President, Bashar Al-Assad, and Hezbollah could count on the support of these groups, including the IUM. The alliance had increasingly angered and antagonised the anti-Assad March 14 Coalition, led by the Future Movement, and its affiliated Sunni groups,[4] giving rise to popular resentment towards the pro-Assad Sunni groups in Tripoli.[5]

    [1] Szajkowski, B, Revolutionary and Dissidents Movements of the World (4^th Ed., John Harper Publishing, 2004), p 294. See also Moussalli, A.S, Historical Dictionary of Islamic Fundamentalist Movements in the Arab World, Iran and Turkey (The Scarecrow Press, London, 1999), pp 83–84.

    [2] Lefèvre, R, Lebanon’s Pro-Assad Islamists, Carnegie Middle East Center, 13 March 2014

    [3] Ibid

    [4] Lefèvre, R, Tripoli's Fragmented Sunni Islamists, Carnegie Middle East Center, 13 March 2014

    [5] Lefèvre, R, The Roots of Crisis in Northern Lebanon, Carnegie Middle East Center, 15 April 2014

26. The information referred to supports the applicant’s claims of the antagonistic attitude of the anti-Assad Salafi groups towards IUM. The Tribunal, therefore, accepts the applicant’s claims that he was verbally harassed, his car was vandalised and that he was threatened [with a weapon] in [2009]. The Tribunal also accepts that those targeting the applicant had expressed an interest in recruiting him because they felt that, as [Occupation 1], he could be useful to them.

27. The applicant, however, did not claim to have encountered these individuals or to have experienced harm after the [2009] incident and before coming to Australia approximately two years later in March 2011. He told the Tribunal at the hearing that he took precautions after this incident by ceasing his employment, staying mostly at home with his family and venturing out only in the company of his father. However, his evidence also indicated that he obtained a passport and a work reference in [2009], he received English tutoring at home, he continued to be enrolled at a private university and he completed his [degree] in 2009/2010. The evidence before the Tribunal did not suggest that the applicant’s livelihood was jeopardised in a material way as a result of the threats. The Tribunal is of the view that if those who had targeted him in [2009] seriously intended to harm him again, they had ample opportunity to do so. Indeed, they knew the applicant and where he resided. The applicant did not provide a satisfactory reason as to why these people had not approached him at home or when he was outside of his home in the company of his father.

28. Having considered the evidence before it, the Tribunal is not satisfied that the verbal harassment directed at the applicant and the damage to his car amount to serious harm or significant harm. The Tribunal accepts that those who had threatened and intimidated the applicant in 2009 had succeeded in genuinely frightening him. However, the Tribunal does not accept that they seriously intended to carry out their threats. The Tribunal, therefore, finds that Salafis in the applicant’s area did not have an ongoing adverse interest in the applicant at the time of his departure from Lebanon.

29. Indeed, after arriving in Australia in March 2011, the applicant did not apply for protection until 5 June 2013, and only did so after his application for a further [temporary] visa was refused by the Department. When this was put to him at the hearing, the applicant explained that he just wanted to leave the country and he was fearful that if he applied for a protection visa information about his claims would be leaked out and he would be threatened in Australia. He claimed that he applied for a protection visa after he conducted an internet research and found out that the information provided in connection with his protection visa application would be kept confidential. When he was asked why he had not made enquiries or conducted this research earlier, he said he was preoccupied with many other things when he first arrived in Australia. He had also hoped that the situation would change by the time his [temporary] visa expired. The Tribunal considers these explanations unsatisfactory and is of the view that if the applicant had a genuine fear of being harmed by anyone in his locality, he would have applied for a protection visa soon after his arrival in Australia. 

30. Nevertheless, the Tribunal has formed the view that the situation in Tripoli remains fluid. In its most recent country information report in relation to Lebanon, DFAT reported:

    In late 2014, the traditionally opposed Future Movement (Sunni) and Hizballah (Shi’a) commenced dialogue to lower tensions exacerbated by the conflict in Syria. That process has been successful in reducing the risk and incidence of violence but has not resolved the underlying causes of tension.[6]

    [6] DFAT, DFAT Country Information Report Lebanon, 23 October 2017.

31. In 2014, Raphaël Lefèvre, a Gates Scholar at the Carnegie Middle East Centre, observed that, despite the constant tension between the anti-Assad and pro-Assad Sunni groups in Tripoli, there has been little open conflict ‘until recently’.[7] However, ‘as the war in Syria grew more ferocious and the pro-Assad camp in Lebanon weakened the simmering intra-Sunni tension in Tripoli began to boil over into violence.’[8] According to Lefèvre, the turning point came with the October 2012 assassination of Wissam Al Hassan, a high-ranking Sunni intelligence officer close to the Future Movement. This in turn led to a confrontation at the headquarters of the IUM and the killing of [Mr A].[9] Lefèvre states:

    Since then, attacks against pro-Assad groups in Tripoli have continued, with recurrent attacks on the Alawites of Jabal Mohsen and a spate of bombings and assassinations against the Damascus-linked Sunni factions. Assad’s remaining friends in the Sunni community now feel seriously pressured. The IUM, for example, remains relatively strong today, with an estimated 200 supporters active in the city. But IUM offices are now protected by army tanks, and many members have left Tripoli in fear of attacks by anti-Assad factions.[10]

    [7] Lefèvre, R, Tripoli's Fragmented Sunni Islamists, Carnegie Middle East Center, 13 March 2014 Ibid

    [9] Ibid

    [10] Ibid

The Tribunal has accepted that the applicant is a member of the IUM, that he was known in his locality as someone who was affiliated with the Movement and that he had been targeted in the past for that reason. The Tribunal considers it highly likely that, if the applicant were to return to his locality in Tripoli, he will be identified as a member of the IUM. In view of the information before it, the Tribunal cannot rule out as remote the applicant's chance of facing serious harm at the hands of anti-Assad Salafi groups for the reason of his membership of the IUM, if he were to return to his locality in Tripoli.

Relocation

The Tribunal has considered whether it would be reasonable for the applicant to relocate to another area of Lebanon, such as Beirut, to avoid the harm he fears in Tripoli. At the Departmental interview, the applicant stated that there is no safe area in Lebanon, that there have been bombings in the Hezbollah stronghold of Dahyya in Beirut, that Salafis are spread throughout Lebanon and that the government provides them with information about those they want. He stated that, if he were to return to Lebanon and contact his family, there is a risk that they will know where he is and he will be pursued. At the hearing, other than stating that nowhere in Lebanon is secure, he did not pursue the other matters he had raised at the Departmental interview. 

The Tribunal does not accept that the applicant will be pursued by Tripoli based Salafi groups if he were to relocate to Beirut. As noted above, he was not a prominent or a high ranking member of the IUM. He was known as a member of the IUM in his locality and his problems were confined to that area. He was not involved in any activities other than attending mosque and teaching the Koran to [others]. In relation to his activities in Australia, the applicant told the delegate at the interview that he had not engaged in any activities here because he is a moderate Muslim, the Muslims he has seen here are Salafis and he did not want to mix with them. At the hearing, he told the Tribunal that he has not engaged in any IUM related activities in Australia. He explained that he has not met any IUM members here and he still harbours a fear since the 2009 incident in Lebanon. The applicant did not claim to have made any effort to find fellow IUM members in Australia or to obtain information about the presence of the Movement in Australia since his arrival here. He did not submit any other information in relation to this following the remittal of his case by the Federal Circuit Court.

1. The Tribunal does not accept that the applicant’s lack of involvement in IUM related activities in Australia was because of his fear of Salafis. All religious groups, including the IUM, are free to practise and engage in activities in Australia. The Tribunal does not accept that the applicant had refrained from engaging in IUM related activities in Australia because he had only encountered Salafis here. The Tribunal is of the view that the applicant’s lack of involvement is indicative of his low level of commitment to the Movement. The Tribunal finds that, if the applicant were to return to Lebanon, he will not be involved with the IUM at a level higher than his past involvement. 

2. The Tribunal has found no credible information in any of the sources consulted to suggest that anti-Assad Salafi groups in Tripoli pursue members and supporters of the IUM, regardless of profile, across Lebanon to harm or recruit them. Indeed, whilst sources consulted indicate that members of the IUM have left Tripoli in fear of attacks by anti-Assad factions, there is no information or evidence to suggest that there is no safety for IUM members outside of Tripoli. Similarly, the Tribunal has found no information to suggest the authorities in Lebanon provide information to Salafi groups, facilitating the targeting of any IUM members.

3. The Tribunal does not accept that the applicant will be pursued by Tripoli’s Salafis or any other groups or individuals, including the Future Movement, if he were to relocate away from Tripoli. The Tribunal does not accept that that his whereabouts will be of any interest to these groups, whether or not he contacts his family. The Tribunal does not accept that the applicant will be of any interest to Tripoli based Salafi groups or anyone else, including the Future Movement, if he were to relocate to Beirut. The Tribunal finds if the applicant were to relocate to Beirut, attend mosque and engage in IUM related activities at the same level he was involved with in the past there is no real chance that he will be subjected to serious harm for the reason of his IUM membership or affiliation. The Tribunal does not accept that there is a real risk that the applicant will suffer significant harm arising from his IUM membership, affiliation or activities if he were to relocate to Beirut.

4. In his letter of 22 November 2017, the applicant referred to his concerns in relation to the current situation in Lebanon. The Tribunal has considered DFAT’s travel advice, dated November 2017. The Tribunal has also considered the internet sourced media reports provided by the applicant. The report referred to the Israeli prime minister’s concerns over the resignation of the former Lebanese prime minister, Saad Hariri; the arrest of a Sydney teenager trying to join ISIS in Lebanon; predictions of rising tensions following the resignation of Saad Hariri; and the kidnapping of a Saudi citizen in Lebanon.

5. In its October 2017 country information report, DFAT has assessed that the security situation in Lebanon remains largely stable, but unpredictable. Instability is greatest in areas where ISIL and Jabhat Fatah al-Sham are located, particularly around the north-eastern border.[11] There was no information in DFAT’s report to suggest that Beirut, generally, is unstable. There was no other information before the Tribunal to indicate that predictions of instability, following the resignation of Saad Hariri in November 2017, have materialised or that the situation is Beirut has changed since October 2017.

   [11] DFAT, DFAT Country Information Report Lebanon, 23 October 2017.

6. The Tribunal accepts that the southern suburbs of Beirut have been hit by a number of explosions and a rocket attack causing casualties and property damage. According to DFAT, in June 2014, a car bomb detonated in a Shi’a neighbourhood, killing a security officer. In November 2015, two ISIL suicide bombers detonated explosives in Bourj el-Barajneh, a predominantly Shi’a suburb in southern Beirut, killing 43 and injuring 239.[12] The Tribunal has found no information in any the sources consulted, including media reports, DFAT’s October 2017 report or other major foreign government reports, to suggest that similar bombings have taken place in any area in Beirut since November 2015.

   [12] Ibid

7. Having considered the available evidence and the applicant’s circumstances, the Tribunal is not satisfied that the general security situation in Beirut is so bad or severe that it would expose the applicant to a real chance of persecution for a Convention reason now or in the reasonably foreseeable future. The Tribunal is satisfied that there is no real chance that the applicant will face serious harm for a Convention reason by anyone if he were to internally relocate. The Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm arising from general violence, tension and instability if he were to relocate to Beirut.

8. DFAT has assessed that any individual, irrespective of their religious or political affiliation, could internally relocate to Beirut, dependent on their personal circumstances, such as financial independence and connections within Beirut.[13] As already noted, the last bombing in Beirut occurred in a predominantly Shi’a suburb in 2015. There was no indication in DFAT’s 2017 country information report to lend support to the view that generalised and sectarian violence in Beirut is at a level that would render relocation unreasonable. The applicant has not provided any further evidence which demonstrates the security situation renders relocation unreasonable and there is no other evidence to that effect. Considering the Tribunal's findings on generalised violence above, the Tribunal does not accept the level of generalised or sectarian violence in Beirut makes it unreasonable for the applicant to relocate to that city.

   [13] Ibid

9. The applicant is young, educated and holds qualifications and extensive work experience as [Occupation 1]. In his case the applicant is further assisted by his resilience, demonstrated by his ability to travel to, reside, [undertake a particular activity] and work in Australia. In his letter of 22 November 2017, the applicant referred to being under stress, having depression and seeking help from health professionals. However, he did not provide any other information, including medical reports or assessments, in support of these claims to enable the Tribunal to form a view in relation to his state of health. The Tribunal is not satisfied that the applicant has any physical or psychological illness that should be considered in assessing reasonableness of relocation in this case.

10. On the basis of the evidence before it and having regard to the applicant’s circumstances overall, the Tribunal considers it reasonable, in the sense of practical, for the applicant to relocate to Beirut.

11. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

12. 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 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 be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

13. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Shahyar Roushan
    Senior Member