1722282 (Refugee)

[2022] AATA 4966

1722282 (Refugee) [2022] AATA 4966 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722282

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Nathan Goetz

DATE:15 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2022 at 10:46am

CATCHWORDS
REFUGEE – protection visa – Lebanon – religion – Muslim convert to the Jehovah’s witness faith – married to an Australian citizen with an Australian citizen child – migration and visa history – non-genuine convert – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 438
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant was represented in the review by registered migration agent 0004435 Dr Etienne Hugo.

   BACKGROUND

3. The applicant identifies as a male citizen of Lebanon presently located in Australia.

4. [In] February 2006 the applicant arrived in Australia holding a sponsored family visitor visa. The applicant departed Australia [in] May 2006.

5. [In] April 2008 the applicant arrived in Australia holding a sponsored family visitor visa. The applicant departed Australia [in] July 2008.

6. On 1 August 2008 the applicant lodged a prospective marriage visa. On 10 February 2009 this visa was granted. The applicant arrived in Australia holding this visa [in] February 2009.

7. On 16 September 2009 the applicant lodged a combined partner visa application (temporary/permanent) with [Ms A] was the sponsor. On 13 October 2013 the applicant’s prospective marriage visa ceased upon the applicant being granted a temporary partner visa that same day. On 1 January 2013 the application for the permanent partner visa was withdrawn, and on 17 January 2013 the temporary partner visa ceased.

8. On 15 January 2013 the applicant lodged a combined partner visa application with [Ms B] as the sponsor. The applicant was granted a bridging visa on 16 January 2013 to regularise his migration status while this visa application was considered. On 7 January 2016 this visa was refused. On 11 January 2016 the applicant applied to the Tribunal for a review of the refusal decision. [In] December 2016 the Tribunal affirmed the refusal decision in AAT case [number].

9. On 9 January 2017 the applicant applied for the protection visa. The applicant attended an interview with the delegate to discuss his claims on 5 April 2017. On 11 September 2017 the delegate refused to grant the visa.

10. On 19 September 2017 the applicant applied to the Tribunal for a review of the refusal decision. On 4 May 2021 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to a Tribunal hearing because the Tribunal considered that it should not decide the review in the applicant’s favour based on the material it had.

11. On 20 May 2021 the applicant appeared at a Tribunal hearing. The migration agent also attended the Tribunal hearing.

    Criteria for a protection visa

12. 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.

13. 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.

14. 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).

15. 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.

16. 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.

17. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.

    Mandatory considerations

18. 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.

    CERTIFICATE OF NON-DISCLOSURE ON SECOND PARTNER DEPARTMENT FILE

19. The Tribunal was provided the department file concerning the applicant’s second partner visa application. There was a certificate issued on 4 October 2017 under s 438 of the Act which prohibited disclosure of certain material on that file because the information was ‘given to the department in confidence.’ The information was contained in folios 178/179 and 243 of that department file number.

20. The information was not relevant to the Tribunal’s assessment of the applicant’s protection claims. If that information was relevant to the applicant’s protection claims, and the Tribunal was going to rely upon it adversely to the applicant, it would have discussed the certificate and the information with the applicant.

    CONSIDERATION OF Claims and evidence

    Protection visa application form

21. The applicant identifies as a [age]-year-old male who was born in [Village 1], Akkar district, Lebanon. He claims Lebanese citizenship and provides a copy of the first page of his Lebanese passport. He also provided a copy and English translation of his Lebanese personal identification card. He can speak, read and write Arabic and English. He is ethnically ‘Arab’ and identified his religion as ‘born Muslim Sunnite currently a Jehova witness.’

22. He described his occupation as an [Occupation 1]. He identified his relationship status as separated. The relationship began on 3 January 2013, and he was separated on 26 July 2016. He identifies an uncle and aunt who reside in Australia and identifies one brother with whom he is in contact in Australia. He also has a sister in Australia. In Lebanon remain his father, mother, [number] brothers, and [number] sisters. He has [number] sisters that are decased. He was asked whether he had been to Australia before and he indicated that he had. He did so on a prospective marriage visa.

23. He noted that he had a visa refused in the past. This was when his partner removed sponsorship. He was interviewed about his reason for coming to Australia in Beirut and he indicated that the reason he came to Australia was to marry his fiancée. He wrote that he had not departed and re-entered Australia since his first arrival and that he had not returned to his home country since arriving in Australia but did declare that he came to Australia in both 2006 and 2008 for a holiday. He provided one address for his time in Lebanon, namely [Address 1], Akkar. He disclosed one previous job in Lebanon being a [Occupation 2].

24. He was asked about his reasons for claiming protection. He indicated that he was making his own claims for protection. He did not claim to be a member of the same family unit as a person who holds a protection visa.

25. He referred the decision-maker to his written statement when addressing his protection claims but noted that he had not experienced harm in Lebanon, and that he did not move or try to move to another part of Lebanon because his claim for protection started when he was in Australia. He believed that he would be harmed or mistreated if he returned to Lebanon, did not think that the authorities in Lebanon could and would protect him if he returned, and did not think he would be able to relocate within Lebanon. He declared the contents of his protection visa application form complete, were correct and up to date in every detail. The form was completed with the assistance of registered migration agent 9900118 Dr Mahmoud Ajjawi.

26. The applicant’s statement confirmed that his family consists of three siblings and that he comes from a Muslim Sunnite family. He detailed that he grew up on a village of one thousand people who were all from the same extended family. They are all either Muslims or ‘fanatic’ Muslims. One of his family members named [Mr C] had been arrested by the Lebanese Army based on accused connections with ISIS. The applicant’s father is very strict, and fanatic in his religious beliefs. His father’s opinion was that girls do not need to be more educated than Year 10 and they should get married. As children, the applicant and his brothers were forced to go to Mosque. If any of them were discovered during the month of fasting not fasting they would be beaten and kicked out of the house. The applicant noted his work history in Lebanon.

27. The applicant wrote that he came to Australia on a prospective marriage visa. After he arrived, he got married and lodged his partner visa application. His relationship with his first wife broke down. On 10 January 2012 he met his second partner [Ms B]. On 3 January 2013 they started living together as husband and wife. She then sponsored him for the partner visa. He wrote that he became aware that she was a Jehovah’s witness from the day they started their relationship. In December 2014 [Ms B]’s father’s health deteriorated and she went to the Gold Coast to look after him. They kept in contact by telephone and [Ms B] would return to visit the applicant every few weeks. The applicant travelled to visit [Ms B] once in Queensland. Their relationship started to end because of their separation. The relationship ended in July 2016.

28. The applicant wrote that while [Ms B] was living in Sydney she started talking to the applicant about her faith and the benefits of being a member of the Jehovah’s witness faith.

29. In or about the second half of 2014 [Ms B] and the applicant started going to the Kingdom Hall in [Suburb 1]. He went there four or five times. The applicant wrote he continued to go there when he was alone. He detailed that he had received instruction and teachings from an elder and that he was referred to an Arabic-speaking member of the church.

30. The applicant wrote that he still goes to the Kingdom Hall every Wednesday and Saturday. He is visited at his home by members from the Hall. He detailed the times he attends the Hall. He noted his study of their holy books, his attendances at general gatherings or conventions.

31. He wrote that going to Kingdom Hall has exposed him to his siblings in Australia who have informed his parents in Lebanon. From the day his father knew about his conversion he stopped talking to the applicant, and he informed the applicant through his brother in Sydney that he would be killed in Lebanon if he returned there. The applicant still talks to his siblings in Australia even though they do not like the path that he is following. He does not fear that his siblings are going to harm him.

32. The applicant wrote that the real fear comes from his father and extended family in Lebanon. It also comes from fanatic Muslim groups in Lebanon who will try and kill the applicant if they know he has converted to become a Jehovah’s Witness. He noted what Sharia law dictates about converts. He also wrote that the real problem about Jehovah’s witnesses in Lebanon and other Arab countries is the public belief that they were created by the Zionist movement.

33. The applicant wrote that he was afraid of the laws in Lebanon. Jehovah’s Witnesses are not recognised. They are not allowed to have Kingdom Halls. His information is that if they want to practice their faith, they go to a normal home that belongs to one of the members. Because Lebanese law does not recognise them as a sect, they must do everything secretly. A person would never be able to practice their faith freely and openly. He also wrote that Lebanese security can easily blackmail members of the faith and refusal could result in members being taken into custody and ultimately jailed.

34. The applicant wrote that he cannot relocate in Lebanon because his country is small and wherever he goes he would be recognised. He can be found by members of his family easily. He wrote that he had a lot of evidence of his claims that are on his mobile phone. There are SMS messages between him and elders and brothers, as well as videos. He indicated that he was willing to show those during his hearing.

35. He provided an print out of a 1514520 (Refugee) [2016] AATA 4822 (23 December 2016), ‘Lebanon: Situation of Jehovah’s Witnesses, including treatment by society and authorities; state protection available in cases of discrimination or mistreatement (2006-November 2013)’ from the Immigration and Refugee Board of Canada from the Refworld website, and a submission from migration agent [Mr D] which reiterated the applicant’s claims and also claimed that the applicant would also face social isolation and systematic intimidation by the community in Lebanon, where he would not be able to marry in accordance with his faith.

36. Also provided was a letter from the [Suburb 1] Congregation of Jehovah’s Witnesses dated 20 April 2017 where it was claimed that the applicant had been attending meetings since August 2015, including taking advantage of free bible studies since January 2016. The letter noted that, at this point, the applicant was not one of Jehovah’s witnesses, but was making steady progress learning and applying Bible principles. Also submitted were attachments to an email with the subject line: ‘Photos with my family and at a meeting etc.’

    Delegate interview on 5 April 2017

37. The applicant attended an interview with the delegate on 5 April 2017 to discuss his protection claims. Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed in this decision record.

    Review application lodged 19 September 2017

38. Prior to the Tribunal hearing, the applicant requested the Tribunal take oral evidence from three witnesses, namely [Mr E], [Mr F], and [Mr G]. The applicant claimed that he had studied the Jehovah’s Witness faith with those three individuals.

39. The Tribunal advised that before the Tribunal would consider that request, those witnesses would need to provide written statements about their evidence. Subsequently, a letter from [Mr E], [Mr F], [Mr G], as well as a letter from [Mr H] were provided.

40. The applicant provided a written submission concerning the protection claims dated 13 May 2021. This was accompanied by a statement signed 13 May 2021 where he confirmed that that the submission provided by his representative wholly raised his protection claims.

    Tribunal hearing on 20 May 2021

41. The applicant attended the Tribunal hearing on 20 May 2021 to discuss the issues arising in relation to the decision under review. Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed in this decision record.

    Post-hearing submissions

42. Subsequent to the Tribunal hearing, the applicant provided the Tribunal with a six-page submission. Attached to the submission were Australian citizenship certificates of [Ms I] who was born on [date], a New South Wales birth certificate for [Child J], who was born on [date] (which identifies his father as the applicant and his mother as [Ms I]) and a NSW marriage certificate identifying that the applicant and [Ms I] were married [in] January 2019.

    FINDINGS AND REASONS

43. The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection.’ The Tribunal must also consider whether the applicant is a member of the same family unit as a person who holds a protection visa because they are a ‘refugee’ or has meet the requirements for ‘complementary protection.’

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

    What is the country of reference?

45. The Tribunal is satisfied that the country of reference for the purpose of the protection visa assessment is Lebanon.

46. The Tribunal comes to this conclusion because the applicant provided the delegate with a copy of his Lebanese passport. The Tribunal is satisfied that this demonstrates the applicant’s citizenship of that country.

47. The applicant did not claim to be a citizen of any other country. Nor did the applicant claim that he had the right to enter and reside in any other country. There is no evidence to undermine these claims.

    Are the applicant’s claims truthful?

48. The applicant’s protection claims stem from his claimed religious belief as a Muslim convert to the Jehovah’s witness faith. Because of this conversion, he claims he will be harmed in Lebanon by immediate and extended family members, that the would be harmed because he would not be able to practice his faith freely in Lebanon (as detailed in his 13 May 2021 submission).

49. The Tribunal also considered the claim that was raised at the Tribunal hearing, namely that his Australian citizen wife and child would be harmed in Lebanon.

50. Ultimately, after considering all the evidence, the Tribunal is not satisfied that there is a real risk of serious harm to the applicant in Lebanon, or that there is a real chance of significant harm to the applicant in Lebanon arising from any of the claims he made.

    Assessment of the claims relating to the fact that the applicant is married to an Australian citizen and has an Australian citizen child

1. At the Tribunal hearing, it was raised that the applicant is now married to an Australian citizen [Ms I], and the father of [Child J], who was born in [year] and is an Australian citizen by birth. The applicant’s marriage and the fact that he was now a father was alluded to in the applicant’s pre-hearing submission of 13 May 2021 where it was submitted that it would be ‘contrary to the best interests of the applicant’s Australian young child and wife to forcibly place them in Lebanon, where they have no cultural reference and would undoubtedly be subjected to harm because of the applicant’s foreign / non-Muslim faith.

2. This claim was developed in the further written submission of 21 May 2021, where it was submitted that if a protection visa application was not granted to the applicant, the family ‘would not be able to live without each other, being geographically separated for any long-term basis.’ The submission reiterated that it would be in the best interests of the applicant’s Australian citizen toddler to remain in Australia on a permanent basis with the applicant, which was described as safe, protected and stable. The Tribunal noted that the applicant’s wife and child are culturally foreign to Lebanon.

3. The submission went on to detail that if the applicant’s son was forced to follow the applicant to Lebanon, the child would be worse off, citing personal safety and security, health and education concerns. The submission also claimed that it would be in the best interest of the applicant’s wife that she remains in Australia on a permanent basis with her husband for similar reasons.

   Consideration

4. The Tribunal accepts that the applicant is married to an Australian woman and the father of an Australian citizen son. The Tribunal also accepts the general principle that it is in the best interests of children (although exceptions apply) for a family unit to remain together. The applicant’s submissions are addressed at the claimed difficulties [Ms I] and [Child J] would experience living in Lebanon and are based on the premise that [Ms I] and [Child J] would be ‘forced’ to leave Australia and live in Lebanon. The Tribunal does not accept that the applicant’s wife or child would be forced to live in Lebanon. They are Australian citizens with the right to remain in Australia. The submission highlighted concerns about the general security situation in Lebanon, as well as suggested that the healthcare and education and protection offered in that country was not as good as that provided in Australia.

5. However, the issue being considered by the Tribunal is not whether it is in the best interests of an Australian citizen wife and child that the applicant remains in Australia, or whether an Australian citizen wife and child would be worse off if they chose to live in Lebanon.

6. The question is whether there is a real chance of serious harm to the applicant in Lebanon due to his race, religion, nationality, membership of a particular social group or political opinion, or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Lebanon, there is a real risk the applicant will suffer significant harm.

7. The applicant provided no evidence about the harm he alleges he would suffer as a result of his wife and child relocating with him to Lebanon, nor did he identify any nexus between any claimed harm and a race, religion, nationality, membership of a particular social group, or political opinion. The evidence about whether the applicant’s wife and child would relocate with him to Lebanon was also not tolerably clear and was only speculative.

   Assessment of the fact that the applicant did not leave Australia after his first partner visa was withdrawn on 1 January 2013

8. The applicant arrived in Australia [in] February 2009 and has remained in Australia to date.

9. On 16 September 2009 the applicant lodged a combined partner visa application with [Ms A] as the sponsor. The applicant told the Tribunal that he and [Ms A] were divorced on 23 July 2012. On 1 January 2013 that visa application was withdrawn, and the applicant’s visa ceased on 17 January 2013.

10. At the Tribunal hearing, the applicant was asked why he did not leave Australia and return to Lebanon once he was divorced from [Ms A] on 23 July 2012. The applicant said he did not do so because he was ‘still lawful here.’ When the Tribunal observed that the basis of him being in Australia on a temporary partner visa was him being in a relationship with [Ms A], and that relationship ending in divorce meant that he could not meet the requirements for the grant of the visa, meaning he should leave Australia, the applicant responded that he remained in Australia because he was lawfully allowed to remain here and that he did not do anything unlawful. He also said that he was tyring to ‘restore the relationship’ with [Ms A] which was a reason that he did not depart Australia when the partner visa was withdrawn.

    Consideration

11. The Tribunal accepts that the applicant was lawfully permitted to remain in Australia on the grant of the temporary partner visa until that visa ceased on 17 January 2013.

12. However, the fact remains that the applicant’s relationship with [Ms A] ended in divorce on 23 July 2012. The applicant did not leave Australia despite the stated purpose of his presence in Australia ceasing. The Tribunal’s assessment that the applicant’s willingness to remain in Australia despite the ceasing of that relationship (which was the purpose of the applicant being in Australia) to be indicative of a longstanding desire to permanently migrate to Australia.

13. Given the protection visa application was lodged on 9 January 2017 following the refusal of the applicant’s second combined partner visa application (this time with [Ms B] as sponsor), and the length of time the applicant has been in Australia since his last arrival here, the Tribunal’s assessment is that the applicant’s longstanding desire to permanently migrate to Australia is the basis for the applicant’s protection visa application, not because he genuinely fears harm in Lebanon for any reason. The Tribunal is comfortable making that conclusion when it considers the other evidence that is of concern to the Tribunal as discussed in this decision record.

    Assessment of the evidence given by the applicant on 16 December 2015 at the Tribunal hearing for review of second partner visa refusal

14. The Tribunal listened to the recording. At that hearing, the applicant told the Tribunal that he was no longer with [Ms B]. He detailed the circumstances of the breakdown of the relationship, which was caused by [Ms B] living [at location] and the applicant not being able to relocate there because he could not find work there. [Ms B] did not want to live in Sydney and bring her family there.

15. The applicant said to that Tribunal that [Ms B] was a Jehovah’s Witness and contrasted that to himself. He told the Tribunal he was not a Jehovah’s Witness. He said he was ‘trying’ and ‘studying’ but he would need ‘a long time to be a brother.’ The applicant detailed that [Ms B] was born into that religion but was not that religious when they met. That changed when [Ms B] was visited by a friend. [Ms B] became more religious and said that she could not live with the applicant because they were not the same religion. The applicant said he was not religious but that he told [Ms B] said he would go to [Ms B]’s meetings, but [Ms B] said she could not be with the applicant until he was a ‘brother.’ That Tribunal hearing was told that it was ‘more than one year ago’ that the applicant started attending Kingdom Hall with his wife because he loves [Ms B]. That Tribunal was told the applicant still goes to Kingdom Hall and is attempting to convert to that faith. The applicant said that his relationship with [Ms B] ended when he last went to the [location] to visit her, which was approximately a week and a half prior to the 16 December 2015 hearing.

16. The applicant also told that Tribunal that he really wished to know what was going on with that relationship and why it ended the way it did. The applicant said if he had that knowledge, he would be able to go back to Lebanon.

17. The Tribunal observes that on 16 December 2015 that Tribunal affirmed the decision to refuse to grant the applicant the permanent partner visa. It was 9 January 2017 (being 22 days later) that the applicant lodged his protection visa application where he claimed in the protection visa application form that he would be harmed or mistreated if he returned to Lebanon.

18. At the Tribunal hearing, the applicant told the Tribunal that he started going to a Kingdom Hall with [Ms B] before he himself started to believe in the Jehovah’s Witness faith. He told the Tribunal that he was not religious before, but that he was ‘convinced’ once he started to study that the Jehovah’s Witness faith was the right religion.

    Consideration

19. The Tribunal accepts that the applicant gave evidence at the 16 December 2015 that he attended Kingdom Hall sessions with [Ms B] and that they did so ‘as a family.’ The Tribunal accepts that those attendances pre-date the protection visa application. The Tribunal also accepts that the applicant told the Tribunal hearing on 16 December 2015 that he was studying that faith and that evidence was given at that hearing that the applicant was studying towards converting to that faith.

20. However, given what the applicant said about why he started attending Kingdom Hall, and [Ms B]’s view about how they could not live together as a couple because they were both not Jehovah’s Witnesses, the Tribunal’s assessment is that the applicant engaged in that religious activity in order to maintain his family unit. Noting that the applicant said that the relationship with [Ms B] ended a week and a half prior to the 16 December 2015 hearing, the Tribunal finds it likely that any attendances or participation with the Jehovah’s Witness faith by him was in the hope that he and [Ms B] would be able to reconcile.

21. The applicant said to that Tribunal that he was ‘not religious.’ The Tribunal does not accept that if the applicant was a genuine convert to the Jehovah’s Witness faith by 16 December 2015 or was attending or participating in religious activity connected with that faith for reasons other than trying to maintain his family unit, he would describe himself as not religious at that point in time.

22. The applicant also told that Tribunal that he would be prepared to return to Lebanon but wanted to ‘understand’ why his relationship broke down before doing so. Given the applicant claimed in his written statement that ‘going to Kingdom Hall has exposed me to by siblings in Australia who have informed my parents in Lebanon. From the day my father knew about my conversion he stopped talking to me and informed me through my brother in Sydney that I would be killed if I returned to Lebanon,’ it is incredulous to the Tribunal’s way of thinking that the applicant would suggest at the 16 December 2015 hearing that he would be prepared to return to Lebanon once he had clarity about his relationship with [Ms B].

23. The Tribunal notes that the applicant told the Tribunal at the 20 May 2021 hearing that he realised that it would not be safe for him to return to Lebanon once he changed his religion. He told the Tribunal that he ‘changed his religion’ in 2015 but that he started ‘studying the Bible from 2016.’ He is still studying but he is not yet ‘official.’ If the applicant’s evidence at the 16 December 2015 was to be believed, he had ‘changed his religion’ ‘more than 12 months ago’ because he had been attending Jehovah’s Witness events with his wife.

24. The applicant told the Tribunal that he realised it would not be safe for him to return to Lebanon ‘after he changed my religion.’ He said that he changed his religion in 2015, but it was in 2016 that he started to study the Bible. The applicant said that he came to realise this because he is Muslim and comes from a conservative family that was very strict.

25. The applicant said changing his religion to Jehovah’s Witness meant that he could not return to Lebanon because he comes from a Muslim family. He said now that he was studying that religion, there is ‘no freedom for Jehovah’s witnesses in Lebanon’ and there was ‘persecution’ and that Jehovah’s Witnesses could not practice.’ When called upon to explain this, the applicant said that it was ‘well known’ that if any person converted from Islam to another faith they will be exposed to being killed.’ The applicant said that he would ‘definitely’ be killed by his family. He said that his life is in danger if he returns to Lebanon because of his conversion.

26. The Tribunal observed to the applicant that there was no law in Lebanon preventing people from converting their religion. In response, the applicant said it was prohibited for a Muslim to convert to another religion in Lebanon.

27. The Tribunal asked whether the applicant considered himself to be a Jehovah’s Witness. He said he did. The Tribunal asked the applicant when he considered that he became a Jehovah’s Witness. He said he liked going there and started to study with elders and started to study in 2016. The applicant confirmed that he still attends Kingdom Hall but not in [Suburb 1] as he did previously, as the Kingdom Hall is now in [Suburb 2].

28. The Tribunal is not persuaded that the applicant genuinely fears harm in Lebanon from his claimed ‘strict family members’ or from any other person, group or authority in Lebanon. If the applicant had any such fear, the Tribunal is satisfied that the applicant would not have indicated at the Tribunal hearing on 16 December 2015 that he would be willing to return to Lebanon once he understood why his relationship with [Ms B] had ended. The Tribunal does not accept that this was a throwaway line. The Tribunal views that the applicant was being genuine when he indicated at that previous Tribunal hearing that he would voluntarily return to Lebanon. The Tribunal’s assessment is that the applicant would not have made that statement if he had any fear of harm in Lebanon based on being a Jehovah’s Witness.

29. The Tribunal accepts that this statement was made in December 2015 and by the time of the Tribunal hearing concerning his protection claims was held, a significant period of time had passed. However, the Tribunal is not persuaded that the applicant’s family in Lebanon, who are apparently very strict, would not have issue with the applicant’s conversion to the Jehovah’s Witness faith as at December 2015, and then 22 days later when the applicant lodged the protection visa application, that opposition became apparent with the applicant’s father claiming that he would kill him, or that the applicant would otherwise be harmed by the applicant’s immediate and extended Muslim family. The Tribunal is satisfied that the applicant fabricated that claimed threat and the claimed opposition from his immediate and extended family for the purpose of lodging his protection claim.

    Assessment of claims relating to the applicant’s religious belief, being a Jehovah’s Witness

30. The applicant’s written statement details his attendance at the Kingdom Hall. The applicant provided the Tribunal with letters from [Mr E] (undated) which spoke of knowing the applicant since 2016 and that the applicant has been attending Bible studies and Kingdom Hall meetings, as well as letters from [Mr E]’s parent [Mr F] attesting the same. The applicant also provided letters from [Mr G] dated 19 May 2021 where she confirmed the applicant participated in Bible studies and a letter from [Mr H] (undated) who also confirmed the applicant’s attendance at meetings and participation in Bible studies.

31. The applicant also spoke to the delegate about the Jehovah’s Witness faith, and to the Tribunal about some of the teachings of that faith. The applicant was able to tell the Tribunal about the Christian teaching about Genesis and to provide a fair explanation about why Jehovah’s Witnesses do not celebrate birthdays, describing it as a pagan ritual. Despite the delegate’s assessment of what the applicant said during his interview suggesting the applicant did not know ‘detailed information’ about the teaching of the ‘Kingdom Prophecy’ which was discussed at the previous week’s meeting that the applicant attended, the Tribunal does not share that concern. Having listened to the delegate interview, the Tribunal is satisfied that the applicant had a sufficient understanding of Jehovah’s Witness teachings that would accord with someone who has been attending religious service since August 2015.

32. The applicant provided evidence that he attended Kingdom Hall services and participated in Jehovah’s Witness activity from 2014 onwards and was continuing to do so at the time of the Tribunal hearing, although the letter from the [Suburb 1] Kingdom Hall dated 20 April 2017 said that he had been attending since August 2015. The Tribunal accepts that the applicant may have attended the odd event prior to that date. The Tribunal accepts that there is evidence that was provided in the course of the partner visa application sponsored by [Ms B] that she was a Jehovah’s Witness and that the applicant and she attended services together.

    Consideration

33. However, the Tribunal’s assessment is that the applicant did not engage in that activity because he was a genuine convert to that religion. Rather, the Tribunal’s assessment is that the applicant participated in that activity as part of family activity with [Ms B], probably to satisfy her increased religious devotion, which the applicant spoke of. It was only around time that he lodged his protection visa application that the applicant ‘started studying the Bible in 2016’ which is what he said at the Tribunal hearing and confirmed in a letter from the [Suburb 1] Kingdom Hall dated 20 April 2017.

34. The Tribunal’s assessment is that once the applicant found himself in the inevitable situation that he would no longer be able to remain in Australia because his partner visa review was affirmed on 16 December 2015, the applicant decided that his best chance to remain in Australia and achieve the desired permanent migration he hoped to achieve since arriving in Australia on 16 September 2009 was to seek to become a religious convert and then assert that he would be persecuted in Lebanon because of this. The Tribunal does not accept that the applicant is a genuine convert to the Jehovah’s Witness faith. The Tribunal is satisfied that the applicant’s activity with the Jehovah’s Witness congregation from 2016 was done solely to achieve a protection visa. The Tribunal is not satisfied that the applicant would continue with this religious practice in Lebanon.

35. The question for the Tribunal then becomes whether the applicant would be at risk of harm in Lebanon because of his religious practice as a Jehovah’s Witness in Australia.

36. According to the Immigration and Refugee Board of Canada publication “Lebanon: Situation of Jehovah’s witnesses, including treatment by society and authorities; state protection available in cases of discrimination and mistreatment (2006 – November 2013)” dated 12 November 2013, Lebanon has a population of 3,613 Jehovah’s Witnesses who made up 70 congregations or worship groups. Most of those are located in Qalamoun, south of Tripoli, and Akkar.

37. The 19 March 2019 DFAT Country Information Report on Lebanon identifies Jehovah’s Witnesses as one of the ‘unrecognised religious groups’ in Lebanon, in contrast to the 19 recognised religious confessions in Lebanon. That report details that unrecognised religious groups can legally own property and are able to assemble for worship and perform religious rights freely. The Tribunal observed to the applicant during the Tribunal hearing that the report detailed no harm directed at Jehovah’s Witnesses in Lebanon and noted the Tribunal’s assessment that if there were any such instances of harm directed towards that group, it is likely that this would be contained in the report. Despite what the applicant said about converting from Islam to another religion being prohibited, that report also notes that Lebanese are able to change their religious affiliation legally, and there is not prohibition on proselytization in Lebanon. The Tribunal is not persuaded that the evidence demonstrates that the Jehovah’s Witnesses in Lebanon face a real chance of serious harm. Their small population and limited number of Kingdom Halls does not mean that they are persecuted. In any event, the Tribunal is not satisfied that the applicant would engage in any religious practice with the Jehovah’s Witnesses in Lebanon for the reasons previously discussed.

1. In the applicant’s particular circumstances, the Tribunal is not satisfied that the applicant will practice as a Jehovah’s Witness in Lebanon in any event. The Tribunal is not satisfied that the applicant’s immediate or extended family have expressed any threat to him and is not satisfied that there is a real risk of harm to the applicant from his immediate or extended family to him in Lebanon based on his involvement with the Jehovah’s Witnesses in Australia.

2. The Tribunal is satisfied that the applicant has a longstanding desire to migrate permanently to Australia and that there is no truth to the claimed threats or opposition to the applicant because of his claimed religious belief, or the fact that the applicant has engaged in religious activity in Australia with the Jehovah’s Witnesses.

3. The Tribunal is satisfied that this was fabricated in order to improve his protection visa claims.

   CONCLUSION

4. The Tribunal is satisfied that the applicant has always wanted to permanently migrate to Australia. The Tribunal is satisfied that when that option ceased through the unsuccessful review of the most recent partner visa refusal, the applicant decided to use his previous attendances at Jehovah’s Witness Kingdom Halls with [Ms B] as a basis for a claim of protection. The applicant then went to complete Bible studies and build upon his involvement with the Jehovah’s Witnesses and then fabricated the claimed threats from immediate and extended family members in the hope that this would corroborate a claimed fear of harm.

5. The Tribunal does not accept that the applicant is a genuine convert to the Jehovah’s Witness faith, is not satisfied that his family oppose this conversion and that he is at risk of harm from them because of this claimed conversion (or any involvement with that faith in Australia) and is not satisfied that upon his return to Lebanon he will be harmed in any way or for any reason concerning Australia’s protection obligations.

   Refugee

6. For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Lebanon on the basis of his race, religion, nationality, membership of a particular social group, or political opinion.

7. Therefore, the applicant is not a person who meets the requirements of s 36(2)(a).

   Complementary protection

8. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Lebanon, there is a real risk the applicant will suffer significant harm.

9. Therefore, the applicant is not a person who meets the requirements of s 36(2)(aa).

   Member of the same family unit

10. For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who meets either s 36(2)(a) or (aa) and holds a protection visa.

11. Therefore, the applicant is not a person who meets the requirements of s 36(2)(b) or (c).

    decision

12. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Nathan Goetz
    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.

    …