1717594 (Refugee)

[2018] AATA 2904

1717594 (Refugee) [2018] AATA 2904 (3 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717594

COUNTRY OF REFERENCE:                  Lebanon

MEMBER:Tania Flood

DATE:3 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2018 at 10:19am

CATCHWORDS
Refugee – Federal Circuit Court Remittal - Protection Visa – Lebanon – Particular social group – Homosexual – Fear of harm from family members – Fear of harm from authorities – Witness credibility – Evidence provided inconsistent – Inconsistencies not adequately explained – Evidence contrived for purposes of enhancing claims – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424A, 424AA, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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).

2. The applicant, who claims to be a citizen of Lebanon, applied for the visa on 14 October 2014 and the delegate refused to grant the visa on 10 June 2015 because the delegate was not satisfied the applicant, is homosexual.

3. The applicant sought a review of the Delegates decision by the Tribunal.  On 13 January 2017 the formerly constituted Tribunal affirmed the decision.

4. The applicant appealed the Tribunal’s decision. [In] July 2017 the matter was remitted by the Court back to the Tribunal because it was conceded the Tribunal failed to put certain information to the applicant according with the procedure set out in section 424A of the Act or the alternative procedures set out in section 424aa of the Act and this information contained a rejection of or undermining of the applicant’s claims. Specifically, information was received from an anonymous source indicating that the applicant’s claims were not genuine.

5. The applicant appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from a friend and work colleague of the applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

11. The issue in this case is whether there is a real chance the applicant will suffer serious harm a Convention reason or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon there is real risk that he will suffer significant harm. 

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

    Summary of claims and evidence

13. In his application for a Protection visa the applicant refers to a statutory declaration which is dated [in] October 2014.  In summary the applicant claims the following:

14. He was born in [a particular year] into a strict Christian family.

15. He knew he was different while growing up and at [a young age] he realised he was homosexual.  His close friend [Mr A] was the only person that understood him and together they realised they were both homosexual.

16. He never told anybody that he was homosexual while he was growing up.

17. He began working as [Occupation 1] when he was [a particular age].

18. Several year later his friend [Mr A], got married.

19. His own parents started pressuring him to get married.  Knowing that he could never reveal his sexuality in Lebanon he allowed himself to get close to a woman who frequented his [workplace].  She is an Australian citizen.  They married [in] June 2013 and he tried to have sexual intercourse on the night of his wedding but he didn’t feel anything and couldn’t proceed with it.  The situation continued and it had a huge impact on their relationship.

20. Shortly after the wedding his wife returned to Australia and they applied for a Partner visa.  While she was away [Mr A] became divorced from his wife.  [Mr A] was very vulnerable and they grew closer and closer and fell in love again. 

21. His Partner visa was approved [in] June 2014 and he arrived to Australia [in] July 2014.  In [August] 2014 his wife discovered messages from [Mr A] on his phone and discovered their affair.  She told him that she had told his family in Lebanon that he was homosexual and having an affair with a man.  With the assistance of her brothers he was kicked out of the house.

22. When he tried to contact his family his parents told him they wanted nothing to do with him.  They threatened to kill him if he ever returned to Lebanon.  He continued to try to talk to them but they threatened to denounce him to the authorities.  The law states that sexual acts which contradict the laws of nature are punishable and will result in prison time.

23. If he returns to Lebanon he is certain that he will be subject to extreme ‘prosecution’ and death. 

24. The copy of the delegates decision dated 10 June 2015, which was provided to the Tribunal by the applicant, indicates he provided the following additional information:

25. He had been to [Country 1] on several occasions.  For about a year and half prior to travelling to Australia he travelled to [Country 1] about every two weeks for up to a week at a time to visit [Mr A] who was still married at the time.  The travel was undertaken from about January 2013 until [July] 2014 and he told his wife the travel was for business. He stayed with [Mr A] in his home but societal attitudes and fear of harm prevented them from realising a full sexual relationship.  Instead they hugged and kissed.

26. In a letter from the applicant’s representative dated [in] September 2016 it is submitted that the applicant has a genuine fear of persecution in Lebanon based on his homosexuality which is forbidden in Lebanon.  While Lebanon is more tolerant than other Arab societies, acts of homosexuality are punishable by law.  The fact that the Lebanese Penal Code criminalises individuals in enough to instil fear in any homosexual individual.  That fear is not only of being imprisoned but also of what other criminals will do.  It is submitted that if the applicant returns to Lebanon he will have no option but to either get married or practice homosexuality discreetly or to disclose it openly.  Neither is possible and ultimately it would become common knowledge that he is homosexual and he will face persecution from his family and society.  The Lebanese authorities will not protect the applicant.  If he is forced to live discreetly throughout his life in order to avoid harm that will amount to persecution.

27. Various evidence is attached to the submission including:

    A letter from the applicant’s partner who lives in [Country 1].

    Copies of electronic communication between the applicant and his partner.

    Evidence that his partner is also in [the same business as the applicant].

    Photos of the couple.

28. The copy of the former Tribunal’s decision which is dated 13 January 2017 indicates that the applicant provided the following additional information:

29. He has known [Mr A] since they were teenagers.  [Mr A] came from [Country 1] and lived in the same village for about two years.

30. Since the time of his interview with the delegate he consummated his relationship with [Mr A] during a visit to [Country 1].  He said he stayed with [Mr A] in [Country 1] for one and a half months.  He said that [Mr A] placed a ring on his finger at the airport when he was leaving.

31. The former Tribunal’s decision indicates that evidence was taken from [Mr A] during the hearing by telephone.  [Mr A] reportedly told the Tribunal that he had known the applicant for about four years.  He said that he had not known the applicant during his childhood and had never lived in the same village as the applicant.  He confirmed other aspects of the applicant’s claims including that they have had a ‘beloved’ relationship.

32. The former Tribunal’s decision also indicates the existence of confidential information provided to the Tribunal which alleges the applicant is not a homosexual and recently travelled to [Country 2] and drove to Lebanon to organise fraudulent photographs to assist with his application for review.  It is further alleged that he met with his ‘fake boyfriend’ in [Country 1] and took photographs together pretending to be a couple. 

    Tribunal hearing

33. When the applicant appeared before the Tribunal on 16 May 2018 he provided the following testimony.

34. The applicant stated that he was born in [a particular location] in Lebanon where he remained living for all his life before moving to Australia.  He stated he is Christian and was formerly married but has no children.  He stated that he divorced approximately three years ago after coming to Australia.  He stated he has had no contact with his former wife since the divorce.

35. The applicant stated that his parents, [and siblings] remain living in Lebanon but he has not been in contact with any of his family members for four years.  He said that after his arrival in Australia his ex-wife found chat messages on his phone from his partner, [Mr A], and on discovering this she informed his family that he is gay.  When he tried to contact them thereafter they threatened to kill him if he returns to Lebanon.  He said he believes they will carry through with this threat.

36. The applicant stated that he has been [Occupation 1] for many years.  In Lebanon he said he worked in [a particular workplace] before opening his own business in about 2010.  In Australia he is working two days per week in [a particular workplace] and sometimes does some private work at home.  He said he earns $600 per week and pays $200 per week in rent.

37. When asked about prior travel outside of Lebanon and Australia the applicant stated that before coming to Australia he was travelling to [Country 1] approximately every two weeks to visit his Partner.  He said he did this both before and after his marriage.  Since departing Lebanon he said he has travelled to [Country 1] on three occasions to visit his partner.  On the first occasion he intended to attend [a particular training] event in [Country 2] but later the training was shifted to [a particular city in Country 1].  He said he only attended training for two days because he did not like it.  He said he spent the remaining six weeks with his partner in [City 1, a city in Country 1].  The second and third visits to [Country 1] were purely to visit his partner for about six weeks each time.

38. The applicant stated that he fears returning to Lebanon because he is homosexual.  He said he fears his family will kill him and he also fears harm from his community and society in general.

39. When asked how he came to realise he is homosexual the applicant stated that when he was in his teens he realised he had no feelings toward women.  He said these feelings commenced when he was [a young age] but he did not fully arrive at the realisation he was homosexual until [a number of years later].  He said by then he knew he was attracted to men.

40. The applicant was asked whether he talked to anybody about his feelings while growing up and he said he did not.  He confirmed he came to this realisation on his own and that he kept his feelings to himself.  During the hearing the Tribunal pointed out to the applicant that his written statement indicates that at [a young age] he and his close friend [Mr A], who was the only person who understood him, came to understand that the reason they were different was because they were homosexual.  The Tribunal put it to the applicant that this appears to be different to what he stated earlier, that this, that he came to the realisation he was homosexual on his own.  He then stated that it was just a feeling at that early age and while he and [Mr A] talked about it they didn’t do anything about it.  He said he just mentioned it “lightly” to [Mr A]. He maintained that his written and verbal evidence are not inconsistent. 

41. When asked how his relationship with [Mr A] developed the applicant stated that he used to travel to [Country 1] to visit him when he was engaged and even after he got married.  He said he told his wife he was travelling to [Country 1] for business.  Later in the hearing the applicant confirmed he was travelling to [Country 1] every two weeks or so and he did this over the course of nearly two years. 

42. When asked how and where he first met [Mr A] the applicant stated that they have known each other since he was [a young age].  He said that [Mr A] used to come to his village with his father because they had relatives there.

43. The applicant stated that when he was travelling to [Country 1] before his departure from Lebanon he and [Mr A] stayed together at a hotel in [City 1].  He said that each time he visited the relationship got more and more intimate.  He said they touched and kissed but only commenced a sexual relationship four years ago after his move to Australia. The Tribunal asked the applicant why, if they were staying in the privacy of a hotel the relationship did not progress to sexual intercourse.  He said he was a bit worried at the time because he was still married and he had concerns about entering into a full sexual relationship.  The Tribunal asked the applicant if they always stayed at a hotel and he replied ‘yes’ because [Mr A] was still not divorced from his wife. 

44. The Tribunal put it to the applicant that he informed the formerly constituted Tribunal that they sometimes stayed at a hotel and sometimes at [Mr A]’s place despite that he was still married.  The applicant responded that he did go to [Mr A]’s home and had lunch with him and his wife but that at night he slept at the hotel.  He said he told [Mr A] he didn’t want to spend the night at his place.  Later he conceded that he told the previous Tribunal member that he did stay at [Mr A]’s house when his wife was there but he insisted this happened only a few times.

45. The applicant confirmed that he remains in a loving relationship with [Mr A].  He said that nobody in [Country 1] knows about this because it is forbidden to be homosexual in [Country 1] as well as in Lebanon.  He added that [Mr A]’s parents live in another part of [Country 1] and if anybody asks he says he is a friend from Lebanon.

46. Referring to photographs the applicant provided previously and at hearing the Tribunal asked the applicant how he came to be in possession of these photos.  The applicant stated that some were taken by themselves (‘selfies’) and some were taken by other persons they encountered on their trips.  When asked if he has any other evidence of his relationship with [Mr A] the applicant referred the Tribunal to unprinted photographs on his mobile phone.  In particular, the applicant referred the Tribunal to photographs of a naked penis and said that this was proof he is homosexual.  He then said he has videos on his phone of him and [Mr A] having ‘phone sex’.  Before the hearing concluded the applicant referred the Tribunal to a video on his mobile phone which shows a naked man who appears to be the same person who appears in the photographs and who it is claimed is [Mr A], masturbating.  The Tribunal asked the applicant if he appears in the video and he said he does not because it was he who filmed [it].  

47. The applicant also referred the Tribunal to a stream of [messages] written in Arabic.  The interpreter read aloud some of the most recent messages which included “how are you”, “I missed you my love”, “have you had a good sleep”, “I missed you too”, “how was your sleep”, “I love you”, “what have you done”, “I cleaned the balconies and planted some flowers”, “why haven’t you had a shave or a haircut”, “I didn’t have time”.  The applicant said they exchanged messages every day, at least morning and afternoon.  The Tribunal put it to the applicant that these messages are similar to the messages he previously tendered as evidence and which were interpreted in handwriting as “love you”, “love you”, “my heart..”, “love you a lot”, “you too love”, “happy dreams love”, “ok love”, ‘bye my life love you” etc.  The Tribunal informed the applicant that the messages are not particularly persuasive as they are brief, appear quite stilted and do not contain a great deal of information to support the existence of a genuine relationship such as an exchange of intimate feelings or deeper interactions which could be expected of a long term couple.  The applied replied that he has a stream of such messages going back several years to support his claims.

48. The applicant was asked why he got married when he claims to have known long beforehand that he was homosexual and involved in a homosexual relationship with [Mr A] whom he professes to love.  He said he gave into the demands of his parents.  When asked what sort of pressure his parents applied to him he said they pestered him to get married because he had reached thirty years of age and his younger brother had already married.

1. The applicant was asked whether he ever had sex with his wife.  He said he did but it was a very difficult experience.  He said he told his brother he and his wife had some problems in that regard but he didn’t tell him why.  He said his wife also felt embarrassed about the situation and it caused them both problems. The Tribunal asked why in the circumstances he applied for a Partner visa to accompany his wife to Australia.  He said that he didn’t want to upset his parents.

2. The Tribunal asked the applicant whether he ever attempted to make contact with other homosexuals or homosexual groups or organisations in Lebanon and he said he did not.  When asked how he is living as a homosexual in Sydney he said he knows nobody here and he loves [Mr A].  When asked if he has any gay friends in Sydney he said he does not and he is faithful to [Mr A].  The Tribunal informed the applicant that this would not prevent him from seeking out friendships or support from within the gay community and again he said he has not contacted any groups here in Sydney.  He stated that a co-worker at his [workplace] was gay but that he left the job.  When asked if he told this person he was gay he said he did not.  He added that his boss knows he is gay and his friend who accompanied him to the hearing also knows he is gay. 

3. The Tribunal took evidence from the applicant’s friend.  She said they have been friends for four years.  She said they work together at [the applicant’s workplace] and spend time together socially.  When asked if the applicant had spoken to her about his life in Lebanon she said she doesn’t know much about that.  She said she has witnessed the applicant to be depressed and lonely here and when asked why this is the case she said it is because he has a relationship with [Mr A] in [Country 1].  She added that she has been introduced to [Mr A] and they sometimes all speak together on the phone.  She said she has observed the applicant messaging and talking to [Mr A] and that she has talked to them when they have been together in [Country 1].  When asked if she thinks the applicant and [Mr A] are in a genuine relationship she agreed they are and said that when she and the applicant became close he confided to her that he is gay.  She said that the applicant has told her his family will not talk to him and this causes him to cry and feel depressed.

4. Before the hearing concluded the Tribunal informed the applicant that the Department has issued a non-disclosure certificate under s.438 of the Act in respect of information provided in confidence. The Tribunal informed the applicant that the nature of this information was disclosed to him by the previously constituted Tribunal but that it was conceded on appeal to the court that the information was not provided to him according to the correct procedures in the Act (s.424A and/or s.424AA of the Act). The Tribunal informed the applicant that it would put this information to him and explain to him its relevance and the impact of the Tribunal relying on it before inviting him to comment on or respond to the information. The Tribunal informed the applicant that he could request additional time to comment on or respond to the information and that if he did so it would consider whether to grant the request.

5. The Tribunal stated that there is information before it which would subject to his comments on or response to it be the reason or part of the reason for affirming the decision which is under review.  The Tribunal stated that the information was provided anonymously as an attachment to an email to the department and alleges that he is not homosexual and in fact is married with two children.  The Tribunal stated that the information also alleged that he did not attend a [training] course in [Country 2] but instead went to Lebanon and organised for fraudulent photos to be taken of him and a fake boyfriend pretending to be a couple. The Tribunal explained to the applicant that the information is relevant because it appears to undermine his claims to be homosexual.  The Tribunal stated that if it relied on the information it might find that he is not a credible witness and reject his claims. 

6. The applicant opted to respond immediately to the information.  He said that if he had been to Lebanon as alleged there would be stamps in his passport to prove it.  He asked why the person hadn’t provided photographs of him in Lebanon.  He added that he had taken an oath to tell the truth on the bible and said that if he is lying he doesn’t deserve to live.  He also said that he is willing to be examined by a doctor to determine if he is gay or not.

7. The Tribunal noted the applicant’s response and said that like the formerly constituted Tribunal it would not be placing any weight on this information as it cannot be verified because it came from an anonymous source.

8. Post-hearing, on 28 May 2018, the applicant provided copies of his passports which support his claimed travel to [Country 1] from Australia.

   FINDINGS AND REASONS

9. The applicant has produced a copy of his Lebanese passport which verifies his claimed identity and nationality.  In the absence of any information to the contrary the Tribunal accepts he is Lebanese and has assessed his claims against Lebanon.

10. On 23 June 2018 the applicant wrote to the Tribunal advising that he wishes to travel to [Country 2] for business purposes from [July] to [August] 2018.  At the time of this decision the Tribunal is satisfied the applicant is in Australia.

11. On the available evidence, the Tribunal accepts that the applicant is acquainted with the person he calls [Mr A]; that he has travelled to [Country 1] three times since first arriving in Australia; that he may have visited [Mr A] in [Country 1] on those occasions and that he has on occasion remitted sums of money to him from as early as [February] 2015.

12. However, when all the available evidence is considered cumulatively the Tribunal is not satisfied that the applicants claim to be homosexual is true.   In reaching this view, the Tribunal has had regard to the internal consistencies and omissions in his evidence, the inconsistent evidence between his evidence and that of his claimed partner, [Mr A] and other reasons which are detailed below.

13. First, the applicant’s written and oral evidence in respect of an important aspect of his claim, namely how he discovered his sexual orientation, differs.  As discussed with the applicant, the Tribunal’s reading of his written claims is that his friendship and communications with [Mr A], at [a young age], was instrumental in helping him to realise that he was homosexual.  He states that [Mr A] was the only person who understood him and that together they managed to work out they were both homosexual.  When discussing this with the applicant at hearing he first said that he never discussed his feelings about his sexual orientation with anybody in Lebanon and came to the realisation alone that he was homosexual when he was [an older age].  When the Tribunal put it to him that this account seems to differ to his written account of the situation he then appeared to change his evidence noting that he did touch on the subject lightly with [Mr A] when they were younger but it was only [a number of] years later that he fully understood he was homosexual.  While the Tribunal accepts that the full realisation of his sexual orientation might have been an extended process his written and oral evidence is that he and [Mr A] did confer on the subject in their younger years and came to certain conclusions about their sexuality.  The Tribunal is of the view that a homosexual person who allegedly struggled with defining his sexual orientation from a young age and allegedly fears persecution in his country for this reason would have a much clearer idea of whom he disclosed his situation with and when.   

14. Secondly, the Tribunal finds it problematic that the applicant’s partner, [Mr A], provided evidence to the former Tribunal that casts serious doubt on aspects of the applicant’s claims. In particular, the decision of the former Tribunal indicates that [Mr A] provided differing evidence as to where they first met and the length of time they have known each other.   When this was discussed with the applicant at hearing he said this could be explained because the former Tribunal member phoned his partner at about 6am while he was still sleeping.  He said that his partner didn’t know who was calling and hadn’t been warned previously that the Tribunal would be calling him.  He said that [Mr A] understood that he was being asked when their sexual relationship had commenced and this is why he said it was four years ago. 

15. As discussed with the applicant at hearing the Tribunal has listened to the audio recording of his interview with the formerly constituted Tribunal and is satisfied that [Mr A] was aware of the identity of the caller and that there was no ambiguity in either the questions asked of [Mr A] or his answers.  The Tribunal observed that [Mr A] was clearly asked how long he has known the applicant and he replied it has been four years.  In what appeared to be an attempt at clarification the former Tribunal member followed up this question by asking [Mr A] whether he had known the applicant in his childhood and again he responded that he did not.  Even if there was some confusion in [Mr A]’s mind as to whether he was being asked when they first met or when their sexual relationship commenced  this does not account for [Mr A]’s admission that he did not know the applicant in his childhood as is claimed by the applicant. In the Tribunal’s view [Mr A]’s evidence is significantly inconsistent with the applicant’s and calls into question key aspects of his claims including that [Mr A] was instrumental in the awakening of his knowledge of his sexual orientation [at a young age].

16. After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Act and invited him to comment on or respond to this information in writing. On 28 May 2018 the applicant wrote to the Tribunal and stated the following:

    “I do not dispute your comments and admit that as a result of pressure and anxiety a person may make mistakes.  I recall that when I was interviewed it was about 6.00am in [Country 1] and I also confirm that [Mr A] and I did not start our genuine relationship and intimacy until the time described by both of us.

    I recall saying to the member of the Tribunal that I did not know him from childhood but I think when I was a teenager.  I also said that [Mr A] got divorced in 2013 and that our sexual relationship started in [Country 1] and that last trip I stayed 6 weeks and that I kept visiting him in [Country 1] regularly since the beginning of 2012.

    I recall that during the interview with [Mr A] and myself it was early in the morning in [Country 1] and we had some difficulties on the line and I recall that [Mr A] said according to his understanding that he has known me as a partner for about four years roughly and his understanding about childhood that we were not committed and our sexual relationship started only some four years ago and he said that I was always visiting him in [Country 1] roughly every fortnight, and lastly I spent with him 1 and ½ months and that we both think of each other as partners beyond doubt and that our relationship was a secret”.

17. The Tribunal has considered the applicant’s responses but remains unconvinced that the inconsistencies in his and [Mr A]’s evidence are adequately explained.  The Tribunal is satisfied that the question put to [Mr A] by the formerly constituted Tribunal was about the length of time he had known the applicant and not about when their sexual relationship commenced.  The Tribunal does not believe that there was any ambiguity or confusion about it particularly as the formerly constituted Tribunal clarified the matter by asking the follow up question about whether they had known each other in their childhood, to which [Mr A] answered no.  

18. Third, when discussing the development of the applicant’s relationship with [Mr A] in the years before he departed Lebanon he informed the Tribunal that he frequently travelled to [Country 1] and that they always stayed together in a hotel in [City 1].   When discussing this with the formerly constituted Tribunal the applicant presented a different account of the facts claiming that he sometimes stayed at a hotel and sometimes in [Mr A]’s home.  Further, while he informed the Tribunal that they stayed together at a hotel because he had told [Mr A] he did not want to stay at his place because his wife was living there he previously told the formerly constituted Tribunal that he was quite happy to stay at [Mr A]’s home.  When this inconsistency was put to the applicant at hearing he again appeared to change his evidence.  He conceded he had told the formerly constituted Tribunal that he stayed at [Mr A]’s home sometimes but attempted to explain it away by insisting that this only occurred rarely. 

19. After the hearing the Tribunal wrote to the applicant pursuant to s.424A of the Act and invited him to comment on or respond to this information in writing. On 28 May 2018 the applicant wrote to the Tribunal and stated the following:

    “During my visit to [Country 1] I never slept at his home when his wife was there but we stayed in a hotel.  Due to the sensitivity of the subject I admit that there may have been some misunderstanding or as the Tribunal called it inconsistency, but I confirm that our relationship is strongly genuine and I am a homosexual and my life will be at risk and possible death if I return and live my homosexuality in Lebanon or [Country 1]”.

20. Having reviewed the available evidence the Tribunal considers the applicant’s evidence has changed over time from always staying in a hotel in [City 1] to only sometimes staying at a hotel.  Further, he has variously claimed that he was happy to stay at [Mr A]’s home as opposed to informing [Mr A] he did not want to stay there while his wife was living there to only staying there rarely.  The Tribunal has considered the applicant’s written response of 28 May 2018 but does not consider he has satisfactorily accounted for his changing evidence to the differently constituted Tribunals.  The Tribunal acknowledges the applicants claim that pressure and anxiety can lead a person to make mistakes but in this instance the Tribunal considers the applicant is prone to changing his evidence when confronted with a differing account of events.  In the Tribunal’s view this accounts for the ever changing account of the situation set out herein. 

21. Fourth, as discussed with the applicant at hearing he answered ‘no’ to question 35 on the application form which asks whether he ever travelled outside his home country or country of residence before his current journey to Australia.  The Tribunal noted that this is at odds with his lengthy oral evidence about his frequent travels to [Country 1] to visit [Mr A].  Further, the Tribunal put it to the applicant that this relevant aspect of his claims is not mentioned at all in his written statement.   The applicant stated at hearing that when the person who filled out the form for him asked him this question he acknowledged his travel to [Country 1] but told him he didn’t need a passport to enter [Country 1] from Lebanon.  Further, he stated that Lebanon and [Country 1] are considered one country and the incorrect answer is attributable to an honest mistake.   As noted at hearing the question does not ask whether the applicant travelled to another country using a passport and despite his assertion to the contrary there can be no doubt that [Country 1] and Lebanon are two separate countries.  The Tribunal is not persuaded by the applicant’s response and considers it likely for the reasons outlined above and below that the claimed history of travel between [Country 1] and Lebanon prior to his arrival in Australia has been fabricated to strengthen his claims of being homosexual and in a relationship with [Mr A].

22. Similarly, during the hearing the applicant claimed that the lawyer who assisted him to write his statement of claims was informed about his frequent travel to [Country 1] prior to his departure to Australia but did not include it.  The Tribunal notes that the applicant’s written statement of claims was indeed prepared before a solicitor and includes five typed pages of claims which go to quite some detail about his circumstances and include among other details, specific dates of key events.  The Tribunal is not persuaded in the circumstances that pertinent details about key aspects of his claims such as his frequent and ongoing travel to see his homosexual partner in [Country 1] would have been omitted from the statement by the solicitor as claimed. 

23. Fifth, the Tribunal is also troubled by the lack of interest the applicant has shown in contacting either homosexual men or homosexual support groups in Australia.  In forming this view the Tribunal notes the evidence given at hearing by the applicant and his witness that he is often depressed, lonely and tearful because of his situation and his separation from his claimed partner.  The Tribunal acknowledges his evidence that his claimed partner may be jealous and he wants to remain faithful to him.  However, as discussed with the applicant at hearing this wouldn’t have precluded him from seeking out friendship or at the very least support from within the ranks of the homosexual community in Australia.  The fact he said he doesn’t know any gay people other than his employer and does not drive or go out was not persuasive to the Tribunal.    The Tribunal finds the absence of any evidence of such interaction surprising.

24. The Tribunal has considered the photographs submitted as evidence by the applicant as well as the photographs revealed at hearing including a close up shot of a penis which appears on his mobile phone.  As discussed with the applicant at hearing the photographs alone do not prove that the applicant is homosexual.  The photographs do not prove anything other than that the applicant photographed himself at various locations with a person he claims is [Mr A].   The photograph of the penis does not identify the person involved nor shed any light on the circumstances in which it was taken. 

25. Similarly, the video evidence revealed at hearing shows a naked man similar in appearance to the photographs of the person claimed to be [Mr A] who is masturbating before a camera.  The applicant conceded he does not appear in the video but said he shot the scene on his mobile phone while communicating with [Mr A] in [Country 1] by [video call].  Again in the Tribunal’s view this video does not prove that the applicant is homosexual.  All it proves at best is that he took a video of another person engaging in a solo sex act.

26. The Tribunal has considered the copies of chat messages submitted as evidence by the applicant as well as the chat messages on his phone which were interpreted at hearing.    However, due to the problematic aspects of his evidence outlined above and given the unconvincing content of these chat messages the weight the Tribunal is prepared to accord to this evidence is limited.  The Tribunal is of the view it would be a relatively easy matter for the applicant and [Mr A] to establish this history of communication for the purpose of contriving evidence.

27. While the western union customer receipts tendered at hearing support that the applicant has indeed sent sums of money to [Mr A] on occasion the evidence sheds no light on the purpose of these transfers and the only information before the Tribunal is the applicant’s oral evidence as to why the money was sent, namely to support his partner who is undergoing financial difficulties in [Country 1].  The applicant himself concedes the sums of money are relatively small and were sent infrequently when he could afford to do so.  Again, and for the reasons outlined above the Tribunal has formed the view this evidence has either been produced for the purpose of strengthening the applicant’s claims for protection or that the money transfers were made for another reason including to provide support for a person who has been economically affected by the severe unrest in [Country 1].

1. The Tribunal has also had regard to the evidence provided by the applicant’s witness at hearing.  While the Tribunal acknowledges that this evidence lends support to the applicant’s claims when all the other evidence is considered the Tribunal found it did not assist in resolving the problematic aspects of the applicant’s evidence overall. 

2. The Tribunal notes that the applicant indicated at hearing that he is willing to undergo a medical examination to prove that he is gay.  While the Tribunal remains unsure what this would prove it nevertheless notes that no medical evidence of this kind has been submitted by the applicant until the time of this decision.

3. The applicant has not claimed to have experienced any past harm in Lebanon on account of his sexual orientation.  Having considered the evidence as a whole and for the reasons set out above, the Tribunal finds that the inconsistencies and the anomalies in the evidence have caused the Tribunal serious doubts about the truthfulness of his claims. The Tribunal does not accept that the applicant is a homosexual male or that he was or is in a homosexual relationship with [Mr A] or any other person.   Therefore the Tribunal does not accept that the applicant is or will be perceived to be homosexual in Lebanon.  The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm for reason of his sexuality from his parents, his community or from any member of society in general should he return to Lebanon now or in the reasonably foreseeable future.  The applicant has not claimed to fear harm in Lebanon for any other reason.

4. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution and is therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

5. For the same reasons already articulated the Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Lebanon from Australia that there is a real risk that he will suffer significant harm.

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

   DECISION

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

   Tania Flood
   Member