1728542 (Refugee)

1728542 (Refugee) [2022] AATA 1072 (2 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728542
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Joseph Lindsay
DATE:2 March 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 2 March 2022 at 5:34pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – fear of harm by militia – kidnapped, detained and beaten, and friend shot and tortured – inaction by authorities – credibility – vague and inconsistent claims and evidence – no fear of harm expressed in previous visitor visa review hearing – country information – application for spouse visa in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Lebanon, applied for the visa on 12 March 2015.
The applicant participated in an audio hearing with the Tribunal on 7 June 2021 and was assisted by an interpreter. The applicant was also assisted at the hearing by their appointed representative. The witness, [Ms A], who is the applicant’s spouse, also participated in the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the applicant’s written protection claims from 2015, he claimed that he left Lebanon to get away from the “militia/ Hisab Nassrallah.” He claimed that the “militia/ Hisab Nassrallah” were after him. He claimed that if he returned to Lebanon he would be tortured and killed. He claimed he experienced harm when he was in Lebanon. He claimed, in summary, that in 2013 he was travelling in a car with five passengers. He said the car was hijacked. He claimed that all five passengers were badly beaten. He claimed that they were taken to a dark room which “felt like” a basement. He claimed that they were not given any food or water or access to a toilet. He claimed that they were pressured to stay awake in order that they be “psychologically tortured.” He claimed that every time they requested food they were beaten. He claimed that 3-4 days later they were given some bread and water. He claimed that all five men, including himself, could not stand up. He claimed that the militia then started to interrogate them and informed them that they all had to join their group otherwise they would get shot. He claimed that they agreed to join the militia group and then they were released. He claimed that it took himself and his friends about two months to recover from the incident. However, he claimed he suffered an adverse impact on his mental health, and he still has panic attacks. He claimed that after two months he went back to work and he started to use the roads again. He claimed that there was an incident where he and his friend were in a cab. He claimed that the cab came to a roadblock and was forced to stop. He claimed that he and his friend got out of the cab and ran into the mountains. He claimed that his friend was shot in the leg, but he managed to run away. He claimed that he had no choice but to keep on running as “they” had machine guns. He claimed that when his friend was sent back to the village a year later he was disabled and extremely unwell. He claimed that his friend had been tortured. He claimed that his friend has since passed away. He claimed that messages had been given to his friends and family back in Lebanon from people saying that they “want” him. He claimed the militias are still looking for him. He claimed he sought help from the Lebanese authorities, but claimed he was told that they could not protect him or take action against those who had kidnapped and tortured him. He claimed he did not move or try to move to another part of Lebanon to seek safety. He claimed that he believes he will be harmed if he returned to Lebanon, that the authorities either could not or would not protect him, and he did not think he would be able to relocate within Lebanon.
In the hearing, the Tribunal noted that the applicant had provided a copy of the delegate’s decision record. The applicant said all of the information in the decision record was accurate.
In respect to his background, the applicant said he was born in [Village], in the Akkar Governate in Lebanon on [Date]. For his schooling, he said he only went up to grade 6. He said he did not go to secondary school. After he finished grade 6, he said he started working in different trades. He said he worked in making [Products] for homes, specifically in making [Specific products]. He said his father was [with an Employer], and so he worked with other people doing trade work. He said that when he came to Australia, he started work as a [Occupation 1] and he found [Occupation 1] to be better work.
When asked why he left Lebanon, the applicant said that every time he went through a village, Shias and Alawites would throw rocks at him. He said that in 2013, he used to work in Beirut, and when he would come back home from work either every day or every second day he would have rocks thrown at him. He said “they” had their own weapons. He said “they” put him in a dark basement. The applicant then said he was kidnapped in 2013, but he could not remember the exact date he was kidnapped. He said they kidnapped him and tortured him. He said every time he asked for food he was hit and kicked. He said the people who kidnapped him were from the national party and no-one could say anything to them including the Lebanese government.
When the Tribunal again asked the applicant when in 2013 he was kidnapped, he said he did not remember. However, he then said it was at night-time that he was kidnapped. He said he was coming back home from where he had been at work in Beirut. He said he was driving a car. He said it took around [Number] hours to drive from Beirut to [Village] going along the coast. He said, on this occasion, he drove through Tripoli in order to get back to [Village]. He said “they” tortured him.
When asked where he was when he was kidnapped, the applicant said he was in [Location]. When asked who was in the car with him, he said “my friends and I.” When asked how many people were in the car, the applicant said there were six (6) people in the car including himself. He said the model of the car was a [Year, make, model]. When asked why he and his friends were in the [car] coming home late at night, he said that he and his friends used to work all together in a [workplace] on Saturdays. He said they would do all different [jobs], like [job task] and so forth. He said this was work he and his friends would do on a weekend, and so this incident happened on a weekend. He then indicated that when they finished at the [workplace], he and his friends drove all the way from Beirut to [Village]. He indicated that it would generally be late when they got home, sometimes 3 or 4 o’clock in the morning.
The applicant said that he and his friends drove home late, and then they were stopped. When asked how he was stopped, the applicant said “they” used to have checkpoints and they have guns. He said if he didn’t stop, he would have been shot. He said the people who stopped him were the Alawites. He said it was the Alawites who kidnapped and tortured him, and it was also the Shia people who hurt him. He said the Alawites and Shia people were all working together at the checkpoint, and it was the Alawites and Shia people who kidnapped him and his friends and tortured them. The applicant said that the people who kidnapped him and his friends made them get out of the car by pointing Kalashnikov rifles at them.
When asked why he and his friends were made to get out of the car, the applicant said “they” wanted to interrogate them about Sunni, Shia and Alawite issues. When again asked why they were made to get out of the car, the applicant said there was a war and the people who took them out of the car wanted to ask them what was happening in their village. The applicant said that the war in Syria affected Lebanon.
When asked why the kidnappers would want to talk about Sunni, Shia and Alawite issues with an approximately [Age] year old man and his friends late at night, the applicant said the kidnappers wanted to know about what the Sunnis were going to do. He said that all six of them (he and his five friends) were all blindfolded. He said the kidnappers started hitting them with the rifles. He said that sometimes he was hit on the back and kicked in the stomach. He indicated that this treatment went on for about 10 minutes, but he couldn’t see his watch because he had his blindfold on. The applicant said that the kidnappers then made him and his friends walk to a room and then left them there. He said that the checkpoint was near a building, and that they were taken to the basement of that building. He said that it looked like a basement. He said their blindfolds were taken off, but their hands remained tied behind their backs. When asked why they would take their blindfolds off but leave their hands tied, the applicant said because they were put underground they would not be able to see where they were. He said there was no light in the basement and it was really dark. He said they were locked in the basement. He said sometimes they would come in the basement and beat them up. He said his hands were tied behind his back for the entire time he was in the basement, but that his hands would be untied when he was brought food to eat but then his hands would be re-tied behind his back. He said he was kept in the basement for 3-4 days. He said that, for nearly all of the 3-4 days he was kept in the basement, his hands were kept tied behind his back and that he was in a lot of pain. He said that after 3-4 days he was then taken to [Village] and released. When asked why he was released, the applicant said he agreed with the kidnappers that he and his friends would give the kidnappers all the news they wanted. When asked what news he meant, the applicant said that he and his friends said they would provide news to the kidnappers from [Village] about “the future party plans against Shia and Allowites.”
When the Tribunal asked the applicant what possible information he and his friends could provide about “the future party plans against Shia and Allowites” he said that because he would sit with “future party” leaders, he would be able to find out anything against Shia and Allowites in the area. When asked if he was saying he was involved with a political party he said “I did not say that at all.” When asked what he meant by “future party”, the applicant said he was saying that if his parents and elders had any plans, then they would be able to find out. The applicant said he had no connection to any political party at all. When asked what information he thought he would be able to find out from his parents, the applicant said he just said “yes” to the kidnappers so they could get away. When asked where his [car] went, the applicant said he took the [car] when his kidnappers let him go and then they all went back to his village.
When asked if he had some special information that the Shia and Allowites wanted to know, he said “no never.” When asked if he was saying that the group of Shia and Allowites decided to keep him and his friends for 3-4 days and beat and torture them even though they didn’t know anything, the applicant said “correct.” The applicant indicated that he had been very unlucky on this particular occasion, because this type of thing had not happened to him either before or since.
When asked if he told his parents what had happened to him after he was released, he said he told his parents but he did not tell them “everything.” He said he told his parents that they had been kidnapped but he did not want his parents to worry about him. He said that his father put in a complaint to the authorities, but that he was told by the authorities that they could not do anything because it was a “party that is aligned with a country.”
When asked who his father made a complaint to, the applicant said that his father and the “elders” complained to the police in Halba, which is a long way from [Village]. When asked if his father and the elders had to go through the same checkpoint, the applicant said they went another way. When asked if he ever went through the same checkpoint again, the applicant said “after a long time, yes we did.” On this second occasion, this time in 2014, the applicant said that he and his friend was stopped in a taxi and although the kidnappers were not successful in kidnapping him, they kidnapped his friend after shooting him in the foot. However, the applicant said he got away by “climbing through the mountains.” He said that later he got into a car and went home.
When asked if there were any other instances of harm that happened to him in Lebanon, he indicated that there were no other instances of harm. When asked if he could recall the date of the 2014 incident, he said he could not remember.
When asked if he told this information to the delegate, he said “yes.” When asked if he told the delegate the information in exactly the same way he had told it to the Tribunal, the applicant said “yes.”
When the Tribunal asked the applicant why he came to Australia, he said he wanted to get away from all his troubles. When asked if all of the information in his written protection application was still correct, he said “yes.”
When the Tribunal asked the applicant if he originally came to Australia on a visitor visa, he said, “correct.” When asked if he recalled having a previous discussion with the previous Tribunal about his visitor visa, he said “yes.” When asked if he told the previous Tribunal about what had happened to him in Lebanon, he said “no I didn’t.” When asked why not, the applicant said he didn’t know he had to tell them. When asked if he told the previous Tribunal that he would go back to Lebanon, he said “yes.” When asked if he had told the previous Tribunal that he was fearful of returning to Lebanon, the applicant said “no.” When asked why not, the applicant said “I did not know I had to tell him I was afraid.” When the Tribunal put to the applicant that he had told the previous Tribunal that he would return to Lebanon, he said in response that he wanted to go back to Lebanon but that after he came to Australia things changed. When asked what changed, he said his cousin said they could apply for protection to stay in Australia. When asked if he lived with his parents the entire time he lived in Lebanon, he said “yes.” When asked what he was afraid of if he went back to Lebanon, he said “troubles.” When asked if there was anyone in particular he feared in Lebanon, he said there was no particular person but he was afraid of the political parties like Hezbollah.
The Tribunal then put to the applicant that the Tribunal may have potential concerns that he had not given the Tribunal credible information about his protection claims.
The Tribunal spoke with the applicant about the first incident in which he claimed he had been abducted in 2013. The Tribunal put to the applicant that in his written protection application he said the incident happed in mid-2013, but then he said to the delegate that he had been abducted in either May or June 2012. The Tribunal put to the applicant that he appeared to have given different information about the timing of the first incident, where in his written application he claimed it occurred in mid-2013 and to the delegate he claimed it happened in either May or June 2012. The Tribunal put to the applicant that the Tribunal may find he had not given credible information about the timing of the first incident because the information was not consistent. In response, the applicant said he did not write the story. The applicant then said he had told his uncle the story and his uncle wrote the story in his written protection application. The applicant then indicated that he might have made a mistake.
The Tribunal then put to the applicant that he had said that the second incident happened to him in 2014. The Tribunal put to the applicant that he had said in his protection visa application that it took him 2 months to physically recover from the incident (in 2013) but that it was only 2 months later that the second incident happened. In response, the applicant said: “that’s right in 2013 - two months later.” The Tribunal put to the applicant that two months on from mid-2013 is not 2014, and the Tribunal put to the applicant that the Tribunal may find he had not given credible information on this point. In response, the applicant said that after the second incident he tried to run up through the mountain but that his friend was returned in 2014.

The Tribunal put to the applicant that in the hearing he specifically told the Tribunal that, in the second incident, his friend was shot in the foot but in the written application he said that his friend was shot in the leg (which is not a foot). The Tribunal put to the applicant that the Tribunal may find he had not given credible information about the injury he claimed occurred to his friend because the information was not consistent. In response, he indicated that in Arabic the spoken word “foot” is the same as the word “leg.” The interpreter also indicated that in Arabic the spoken word “foot” is the same as the word “leg.” However, the Tribunal said that the Tribunal was reading from the applicant’s written statement in the protection application, which is in English. The Tribunal put to the applicant it was not a situation of a potential misinterpretation of a spoken Arabic word – the applicant used the word “leg” written in English in the written claims.
The Tribunal then put to the applicant that in the hearing he claimed that it was his parents who contacted the police after the first incident. The Tribunal put to the applicant that in his interview with the delegate he said:
While he and his friends (work mates) were missing, his family members tried to talk to other families to resolve this issue (Tribunal emphasis). The 'elders' were negotiating to secure their release, however they do not have the final word as the thugs have taken control (Tribunal emphasis).
The Tribunal put to the applicant that the information he had given to the delegate about who exactly sought help in Lebanon after the harm appeared to be different from what he said in his protection visa application where he said:
I seeked help from the authorities of the country but they said that they could nor protect me, they also stated that they could not take any action against the people who tortured and kidnapped me. I felt so scared when I heard that I could not be protected and have always feared that I will be kidnapped, tortured and killed.
The Tribunal put to the applicant that his account about what steps had been taken, or who took those steps, or when they took those steps, about seeking help from the authorities appeared to be different. In response, the applicant said that whatever he said was the truth. He said he had nothing to tell the Tribunal about that. The applicant then said that he had applied for a partner visa and he was waiting for that visa.
The Tribunal put to the applicant that whether it was in his written protection application or in his interview with the delegate, he made no reference to having his hands tied behind his back for about 3-4 days when he was in captivity – as he had done in the hearing. The Tribunal put to the applicant that it may find that this was a conspicuous omission of information from his written protection application or in his interview with the delegate as to how he claimed he was treated in the first incident because he said this had caused him a lot of pain. The Tribunal put to the applicant that it may find there were inconsistencies between his accounts of how he said he was treated in the first incident and therefore his claim in this respect was not credible. In response the applicant said he tried his best to give details.
The Tribunal put to the applicant that in the hearing he had told the Tribunal that he was clear about who he believed kidnapped him and hurt him in the first incident – Shias and Alawites working together. However, the Tribunal put to the applicant that was not what he said in his written protection application nor to the delegate in 2017. The Tribunal put to the applicant that in his protection application he referred to people from a “militia/ Hisab Nassrallah”, and in 2017 to the delegate he said that “he and his friends were tortured and forced to agree to become spies for the Shia militia and report to them about anything that the Sunni Muslims did as they believed that Sunni Muslims were affiliated with ISIL.” The Tribunal put to the applicant that in the hearing he said that the kidnappers were Shia and Alawites who wanted him to report “the future party plans against Shia and Allowites” to them. The Tribunal put to the applicant that it may find there were inconsistencies between his accounts of who the people where that he claimed kidnaped him in 2013 and exactly what it was that they wanted him and his friends to do for them, and therefore his claim in this respect was not credible. The applicant said in response that he said that the Shias and Alawites are all the same. He said the Alawites take their orders from Hezbollah anyway. He said the Future Party is a huge party for the Sunnis and that was why they wanted to know about that.
The Tribunal put to the applicant that in the written submission from the representative to the Tribunal dated 1 June 2021, the representative stated that:
The applicant believes that the delegate should take into account when assessing this written submission, that he left his village after he was set free by the Shia militia group due to fearing for his life (Tribunal emphasis).
[The applicant] was in significant distress that if he did not leave, the militias Shia group will return as he did not follow their orders and report on his village motives. This resulted in [the applicant] fleeing to Beirut and employed as [an Occupation 2] which is a long distance from his home [town] (Tribunal emphasis). While Beirut was a safer environment for the applicant to live in compared to his home town which was surrounded by Shia militia groups from the North and the South, it did not offer a permanent safe environment as the Shia militia groups where still able to reach [the applicant] (Tribunal emphasis).
The Tribunal put to the applicant that in his protection visa application, when asked if he moved or tried to move to another part of Lebanon to seek safety, the applicant ticked “no” and stated:
In Lebanon we cannot move easily as there are checkpoints set up by militia and different groups (Tribunal emphasis). Especially when a person is targeted they get caught at checkpoints between cities or towns.
The Tribunal put to the applicant that in the hearing he indicated that his only connection with Beirut was that he had worked there and that he had been returning home at the time of the first incident.
The Tribunal put to the applicant that it may find that he gave inconsistent information as to whether or not he had moved in Lebanon to seek safety and therefore his claim in this respect was not credible. In response the applicant said he did tell his solicitor that he worked in Beirut.
The Tribunal put to the applicant that in regard to his employment history, he said in the hearing that he had worked in [Work sector] and he said that he had worked as [an Occupation 2] when he was in Lebanon, but in his written protection application he had only said he had been [an Occupation 3] – there was no reference to any employment as [an Occupation 2]. The Tribunal put to the applicant that whether it be in his written application or whether it be in the delegate’s decision there is no reference to the claim that he was ever [an Occupation 2] or that this was the reason why he was in Beirut and then travelling back home in respect to the first incident. In response, the applicant said that he used to work [as an Occupation 3] but when there was not much work, he went to Beirut to work in [Workplaces].
The Tribunal spoke to the applicant’s wife, [Ms A]. [Ms A] said she was born in Australia and she is an Australian citizen. [Ms A] said that Lebanon is not a safe place. She said she could not live in Australia on her own if the applicant went back to Lebanon.
The Tribunal spoke to the applicant about the information in the DFAT Country Information Report for Lebanon dated 19 March 2019, it states that North Lebanon is majority Sunni and that the Internal Security Forces (ISF) are “headed by a Sunni and some critics have alleged that the organisation is overly dominated by the Sunni community.” The Tribunal put to the applicant that, given he lived in North Lebanon and that he was a Sunni, that he would receive adequate protection from the Lebanese authorities should he require it. In response, the applicant said it was not safe in Lebanon.
ANALYSIS AND FINDINGS
The Tribunal has carefully considered the applicants’ claims and the evidence available to the Tribunal in respect to those claims. The Tribunal does not accept that the applicant gave credible information to the Tribunal about his protection claims and does not accept that his protection claims are credible. The reasons for the Tribunal’s finding in this respect are as follows.
Firstly, a concern for the Tribunal is the applicant’s evidence in relation to his claim that he was kidnapped, detained and abused in 2013. One concerning aspect of the applicant’s evidence in relation to this incident was his inconsistent evidence in respect to the actual timeframe in which he claimed the incident occurred. For example, in his written protection application he stated the incident happened in mid-2013, but then in the delegate’s decision he said to the delegate that he had been abducted in either May or June 2012. In the hearing, the applicant said he could not remember exactly when in 2013 that the alleged incident occurred. In its assessment of this evidence, the Tribunal would have reasonably expected that the applicant would have remained consistent about such an important detail as the timing of the alleged incident that he said he had been kidnapped and tortured. For these reasons, the Tribunal does not accept that the applicant’s evidence in respect to the timing of the alleged incident of being kidnapped, detained and abused in 2013 is credible.
Another concerning aspect of the applicant’s evidence in relation to this incident was his evidence about his alleged treatment at the hands of his captors. At the very minimum, the Tribunal found the applicant’s evidence in relation to this aspect of his claim to be vague and lacking in sufficient detail. However, the Tribunal also has concerns about the inconsistent evidence he gave in this respect. In his written claims, the applicant stated that he was not given any food and that when he requested food, he, along with his fellow captives, were beaten, and then it was 3-4 days later that his captors gave them some bread and water. However, in the hearing the applicant said that his hands were tied behind his back for almost all the time he was in the basement, which was 3-4 days. In the hearing the applicant said that his hands would be untied when he was brought food to eat but then his hands would be re-tied behind his back. In any event, the Tribunal finds that the claim about having his hands tied behind his back appears to be an embellishment of the earlier claims because this particular claim was not made either in his written protection application or in his interview with the delegate. In considering this evidence, the Tribunal is not satisfied that the applicant gave consistent evidence in this aspect of his claims between his written claims and what he told the Tribunal in the hearing about when he was provided food by his captors. Accordingly, the Tribunal does not accept that the applicant gave credible evidence in this respect.
Another concerning aspect of the applicant’s evidence in relation to this incident was his evidence about the timeframe in which he was allegedly detained. In his written claims, the applicant indicated the timeframe was about 3-4 days. In the interview with the delegate, the applicant indicated the timeframe was about 10-12 days. In the hearing, the applicant indicated that timeframe was 3-4 days. The Tribunal finds that the applicant’s evidence on this aspect of his claims was inconsistent and not credible.
Another concerning aspect of the applicant’s evidence in relation to this incident was his evidence about his release from captivity. In the hearing, the applicant said that after 3-4 days he was then taken to [Village] and released. However, later in the hearing, the applicant said that when he was released, he went back to his [car] when his kidnappers let him go and then they all went back to his village. In respect to this evidence, the Tribunal finds that the applicant’s evidence on this aspect of his claims was inconsistent and not credible.
Another concerning aspect of the applicant’s evidence in relation to this incident was the reasons he gave as to why his captors took him and his friends captive, and what his captors wanted from him. In his written claims, the applicant stated that they were told they had to “join the group” or they would be shot. To the delegate, the applicant said he was “forced to agree to become spies for the Shia militia and report to them about anything that the Sunni Muslims did as they believed that Sunni Muslims were affiliated with ISIL.” To the Tribunal, the applicant said he told his captors he would provide news to them about “the future party plans against Shia and Allowites.” In respect to this evidence, the Tribunal finds that the applicant’s evidence on this aspect of his claims was inconsistent and not credible.
Another concerning aspect of the applicant’s evidence in relation to this incident was the alleged identity of his alleged captors. In his protection application he referred to people from a “militia/ Hisab Nassrallah”, and to the delegate he claimed that he was kidnapped by Shia militia. In the hearing, the applicant said his kidnappers were Shia and Allowites. In the representative’s submissions, it was claimed that his kidnappers were Shia militia. In respect to this evidence, the Tribunal finds that the applicant’s evidence on this aspect of his claims was inconsistent and not credible.
Another concerning aspect of the applicant’s evidence in relation to this incident was the alleged actions in seeking assistance from the Lebanese authorities after the incident. In his written application, the applicant claimed that it was himself who sought help from the Lebanese authorities. In the hearing, the applicant said it was his father and the “elders” who complained to the police after the first incident. In respect to this evidence, the Tribunal finds that the applicant’s evidence on this aspect of his claims was inconsistent and not credible.
Another concerning aspect of the applicant’s evidence in relation to this incident was his conflicting account of whether or not he moved or tried to move to another part of Lebanon to seek safety. In his protection application, the applicant claimed he did not move. In the hearing, the applicant claimed he did not move and he stayed at the family home with his parents until he left Lebanon. However, in the written submission from the representative to the Tribunal dated 1 June 2021, the representative stated that the applicant left his village and fled to Beirut to live and work as [an Occupation 2]. In respect to this evidence, the Tribunal finds that the applicant’s evidence on this aspect of his claims was inconsistent and not credible.
In respect to the first alleged incident of the applicant being kidnapped, detained and abused in 2013, the Tribunal does not accept any aspect of this claim. The Tribunal finds that all aspects of this claim are not credible and that none of the applicant’s claims in this respect actually happened.
In respect to the second alleged incident, the Tribunal has concerns about the credibility of this claim. Again, the Tribunal found the applicant’s evidence in relation to this aspect of his claim to be vague and lacking in sufficient detail. In particular, the Tribunal is not satisfied by the applicant’s evidence in regard to the timing of the second incident. In his protection visa application, the applicant stated that it took him 2 months to physically recover from the incident (in 2013) but that it was only 2 months later that the second incident happened. The applicant stated that about a year after this incident his friend was sent back to the village but then his friend died in 2014. However, in the hearing the applicant claimed the second incident happened in 2014 and he could not remember the exact date of the incident in 2014. In respect to this evidence, the Tribunal finds that the applicant’s evidence on this aspect of his claims was inconsistent and not credible.
The Tribunal finds that the applicant’s claim that he ran through the mountains to get away from his assailants to be vague, lacking in detail and an embellishment.
Even accounting for any possible misinterpretation about the Arabic word for ‘leg’ or ‘foot’, the Tribunal finds that the applicant’s account of the alleged injuries to his friend, as to exactly where his friend was shot, whether it be in his leg or his foot, to be vague, lacking in detail and an embellishment.
In respect to the second alleged incident of the applicant being stopped and forced to run away through the mountains to escape being harmed, the Tribunal does not accept any aspect of this claim. The Tribunal finds that all aspects of this claim are not credible and that none of the applicant’s claims in this respect actually happened.
In respect to the applicant’s claims, considered individually and cumulatively, the Tribunal is not satisfied that the applicant gave credible information in relation to his claims and is not satisfied that his protection claims are credible. The Tribunal does not accept that the applicant was ever threatened or harmed in Lebanon. The Tribunal acknowledges that he said he feared Hezbollah. However, the Tribunal does not accept that that there is any direct threat of harm from Hezbollah to the applicant personally. The Tribunal accepts, in respect to the DFAT Report, that Hezbollah “exercises effective control over sections of Lebanese territory, particularly in parts of South Lebanon, southern Beirut, and parts of the Beka’a Valley.” Given the applicant’s home is in the North of Lebanon, the Tribunal is not satisfied that there is any direct threat of harm from Hezbollah to the applicant personally simply because he is a Sunni should he return to Lebanon in the foreseeable future. In respect the concerns from the applicant’s spouse, the Tribunal accepts that she is an Australian citizen. The Tribunal has considered the applicant’s spouse’s concerns that Lebanon is not a safe country and that she does not want her husband to return to Lebanon. The Tribunal accepts that the applicant has also applied for a spouse visa. However, given the country information made available to the Tribunal, the Tribunal is not satisfied that the applicant faces either a real chance of serious harm or a real risk of significant harm should he return to Lebanon in the foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
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.
…

[2022] AATA 1072

2 March 2022

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