1729757 (Refugee)

1729757 (Refugee) [2020] AATA 1129 (12 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729757
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Sean Baker
DATE:12 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 12 March 2020 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – Federal Circuit Court remittal – complementary protection – member of a particular social group – homosexuality – claimed long-term relationship kept secret – families’ and community’s attitudes – extremist religious preaching and threats – claimed partner now married with child and returned to Lebanon – credibility – generalised and inconsistent evidence – little documentary evidence of relationship – anonymous adverse information provided to department – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(aa), 48A, 65, 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127
Nagalingam v MILGEA (1992) 38 FCR 191
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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

[The applicant] is a [age]-year-old National of Lebanon from [Village] in the North of the country. He says that his religion is Muslim. He claims to fear harm because of his homosexuality and his relationship with another man.
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Lebanon, applied for the visa on 20 November 2013 and the delegate refused to grant the visa on 30 June 2015.
This matter is before the Tribunal because it was remitted by the Court. On 17 November 2017 the matter was remitted by consent on the basis that the previous Tribunal failed to comply with s.424A of the Act.
The applicant appeared before the Tribunal on 30 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], social worker. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
In this case, the applicant has had his protection claims assessed under s.36(2)(a) previously. The applicant made this application, on 20 November 2013, on the basis that he was seeking to meet only the complementary protection grounds under s.36(2)(aa) with regard to the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (SZGIZ).
Having regard to SZGIZ and Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 (SZVCH), the Tribunal finds that it can consider this application by reference to the criterion in s.36(2)(aa) solely. Consideration of the applicant’s claims by reference to s.36(2)(a) is not permitted because of the operation of s.48A to the facts of this case.
This provision sets out that a person may meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of Policy - Refugee and humanitarian - Complementary Protection Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The issue in this case is whether the applicant would suffer significant harm as a result of being removed from Australia to Lebanon. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality
The applicant provided a copy of his Lebanese passport to the Department. On the basis of this evidence and without any evidence to the contrary I find that the applicant is a national of Lebanon, which is also his receiving country.
There is no information before me to establish that the applicant has a right to enter and reside in any third country and I so find.
History of the claims
The applicant made an application for protection on 25 October 2010. The applicant was interviewed by a delegate of the Minister on 13 May 2011. The delegate refused the application by decision dated 14 June 2011, finding there were multiple inconsistencies in his and his partner’s claims, including the beginning of their relationship, their time in Lebanon, their residential addresses in Australia, activity in Australia, and the delay in applying for protection. The delegate also was of the view that country information did not support that the applicant would be harmed by the authorities on return to Lebanon.
The applicant sought review at the Tribunal. That decision was affirmed by a differently constituted Tribunal on 24 April 2012. The applicant sought ministerial intervention in June 2012 but the Minister declined to intervene.
The applicant lodged a further application on 5 November 2012 to have his claims considered under the complementary protection provisions. This application was found by the department to be invalid on 8 November 2012
On 20 November 2013 a further application was lodged by the applicant claiming that his case was affected by the decision in SZGIZ. This was again found to be invalid by the Department on 4 December 2013. The applicant applied to the Federal Circuit Court which ordered on 25 June 2014 by consent that the Minister consider and determine the application for a protection visa lodged by the applicant on 20 November 2013.
The applicant made a further statutory declaration on 29 January 2015, as set out below.
Claims
In his application for protection (made 20 November 2013) the applicant said that he relied solely on the complementary protection provisions for the assessment of his claims, that he feared suffering significant harm on the basis of the ongoing political, economic, and social situation in Lebanon, and that a detailed statement would be submitted in due course. He stated that he feared Hezbollah, pro-Syrian forces and the general economic situation, because he is a Sunni Muslim.
He provided a statutory declaration in which he referred again to the complementary protection criteria, and provided his background. He said that he initially applied for a protection visa (in 2010) on the basis of his sexual orientation, being homosexual. He said that he and [Mr B] had been in a sexual relationship since the age of 19; that [Mr B] is his only partner and they have remained committed to each other all these years. They have lived together since their arrival in Australia. Only a few members of the Lebanese community are aware that they are gay, but they have many gay non-Lebanese friends. Their parents have heard they are gay. The applicant and [Mr B] continue to deny they are in a relationship and maintain that they are close friends. Their families now do not communicate with them very much, his parents have stopped sending him money and his mother tells him they receive reports from the Lebanese community that he and [Mr B] are in a relationship and that they have stopped praying or going to Mosque. His father does not talk to him at all. He and [Mr B] are forced to deny their relationship as they fear having to return to Lebanon. They have confided in only two Lebanese people who they trust. Because of their relationship they could not return and live safely in Lebanon, they would be threatened by their family and the wider Islamic community. The authorities would not protect them and homosexuality is illegal under Lebanese law. As openly gay men they could not gain employment and would not be able to subsist. Relocation is not an option.
A delegate of the Minister refused this application on 30 June 2015. The delegate dealt with the applicant’s claims to political social and economic turmoil in Lebanon attributing this to his Sunni background. The delegate noted his further statutory declaration and information at interview related primarily to his homosexual claims. The delegate found the applicant’s account of his family and the knowledge of his homosexuality was inconsistent, lacking in detail and unconvincing. The delegate had serious concerns regarding the genuineness of the applicant’s account and his overall credibility. The delegate found the applicant was unable to give a plausible account of his intimate relationship with [Mr B], and drew an adverse conclusion from the lack of evidence of their approximately 9 year relationship at that point. The delegate found that the applicant was not in a genuine relationship with [Mr B], found the applicant to be a witness of poor credibility, and did not accept his claims for protection were genuine. The delegate noted that the applicant claimed he had had two witnesses before the tribunal, who were the only Lebanese people who knew of their relationship.
The applicant applied for review and provided a copy of the delegate’s decision to the Tribunal. At the hearing before that Tribunal, on 9 December 2016, the applicant; [Mr B], the applicant’s claimed partner; and [Mr C], gave evidence, and I have taken this into account below.
This matter was affirmed by the Tribunal, differently constituted on 29 May 2017.
On 17 November 2017 the Federal Circuit Court by consent ordered that the matter be remitted to the tribunal for determination according to law.
The court noted that the Minister conceded that the tribunal failed to comply with s.424A/424AA in respect of information provided to the Department that the applicant was claiming to be homosexual for the purposes of gaining permanent residency, and that his relationship was not genuine. The Minister accepted that this evidence was “information” that constituted a rejection, denial or undermining of the applicant’s claim that he was homosexual and in a genuine relationship, and was relied upon by the second respondent as the reason, or part of the reason, for affirming the decision under review.
The matter is now before me.
Prior to the hearing I sent the applicant a s.424A letter, putting to the applicant adverse information and inviting his comment. This included the information referred to by the Court, above, and new information which the Tribunal had received. The relevant parts of the letter are set out below:
The first set of particulars is:
The Tribunal has information received by the department from a source that cannot be disclosed. The information was referred to by a delegate of the department on the recording of the departmental protection visa interview held with you on13 May 2011.
The information alleges that you and the person claiming to be your partner, [Mr B], are not homosexual; that you live together but in actual fact live separately and that you are both falsely claiming to be homosexual in your claim for a protection visa in order obtain permanent residency in Australia.
The relevance of this information to the review is that if we rely on this information in making our decision, we may view this as undermining your claim to be a homosexual, or that you were or are in a genuine homosexual relationship or that you fear persecution or significant harm if returned to Lebanon. With other information, it may lead the Tribunal to doubt your general credibility.
The second set of particulars is:
Information from departmental records indicates that the person you claim to be your partner, [Mr B], recently voluntarily departed Australia and returned to Lebanon.
This information is relevant to the review because it calls into question evidence provided by you that your alleged partner [Mr B] fears persecution or significant harm upon return to Lebanon because of his homosexuality and/or genuine homosexual relationship with you, which may raise doubts that you fear persecution or significant harm on return to Lebanon on the same basis. If we rely on this information in making our decision, we may view this as undermining your claim to be a homosexual, or that you were or are in a genuine homosexual relationship, or that you fear persecution or significant harm if returned to Lebanon. With other information, it may lead the Tribunal to doubt your general credibility.
The third set of particulars is:
Information from departmental records indicates that [Mr B], is in a heterosexual relationship.
This information is relevant to the review because information regarding your claimed partner’s engagement in a heterosexual relationship calls into question your claims that he is a homosexual and/ or was engaged in a genuine homosexual relationship with you. If we rely on this information in making our decision, we may view this as undermining your claim to be a homosexual, or that you were or are in a genuine homosexual relationship, or that you fear persecution or significant harm if returned to Lebanon. With other information, it may lead the Tribunal to doubt your general credibility.
If we rely on any or all of the above information in making our decision, we may view this as undermining your claim to be a homosexual, or that you were or are in a genuine homosexual relationship, or that you fear persecution or significant harm if returned to Lebanon, and may be relied upon by the Tribunal as the reason, or form part of the reason, for affirming the decision under review.
This information was put to the applicant in a letter and the consequence was also explained.
The applicant responded by way of a statutory declaration made 31 July 2019. In this he said that his relationship with his former partner was genuine and had extended almost over a ten-year period. It ended abruptly in October 2018 when his former partner told the applicant he no longer wished to be in a relationship with him because [Mr B] wanted to revert to Islam and could no longer live with the drawn out uncertainty of their future in Australia and fear of discovery by relatives and the community in Australia and Lebanon. Throughout their relationship they chose to keep it a secret for these reasons with only a few trusted individuals knowing they were partners. They feared if the truth were known their families and community would kill them on return to Lebanon. Unfortunately, his former partner, after many years, had chosen a different path where he reverted back to Islam and ultimately wanted to get married. The applicant has been extremely depressed by this as he knows his partner loves him and has only chosen to pursue a different path out of fear. His former partner feared the relationship being discovered as well as the religious and moral consequences of maintaining a homosexual relationship, Islam and Islamic preachers in Australia since the changes to the Marriage Act have been increasingly vocal against homosexuality. His former partner became increasingly fearful due to this. The applicant says [Mr B] told him that [Mr B]’s brother had threated to kill [Mr B]. The applicant has been informed by [Mr A] the local sheiks are preaching hate against homosexuals and those who assist them. [Mr C]. The local head of [the Arab gay association] has also received threats. In the past two years the applicant and his former partner received numerous telephone threats from unknown individuals, saying they were abhorrent to Islam and would be killed on return to Lebanon, and made threats against their lawyer. False publications on [Social media] carrying the ISIS flag have warned people not to deal with Australian lawyers who assist Muslim homosexuals. He does not know who these people are or how they came to know of his relationship but he fears gossip has been circulating around the community for many years. This leads him to further fear people who are aware of his former relationship and will harm him should he return to Lebanon. He is aware of other gay Lebanese Muslims who in fear have abandoned their protection claims and entered heterosexual relationships just to counter the infamy of being branded homosexual, unfortunately many turn on their former advisors and blame them.
Prior to the hearing a supporting statutory declaration made on 21 August 2019 was provided from [Mr A], in which he said that he had known the applicant and [Mr B] to be in a genuine relationship since at least 2010, that in January 2019 [Mr B] approached him and said he had ended his relationship with the applicant and had recently married. He was surprised by this news. [Mr B] expressed the wish to return to Islam and that his brother and other individuals had threatened him. [Mr B] questioned [Mr B] and learnt that [Mr B]’s decision simply arose out of fear as the local Sheik had been preaching against homosexuality. As a social worker, [Mr A] had also been hearing this increasing anti-gay preaching. [Mr A] himself had received many threats from radical Muslims because he was known to assist gay Muslims. He had reported these threats to the police. He is aware that [Mr C] has also received threats. He is aware that the lawyer [Mr D] has also received threats. He notes that it is also very unfortunate that individuals who claim to be gay turn on their former representatives after they enter heterosexual marriages and blame the former representatives. [Mr A] states that he knows many individuals such as [Mr B] who entered a heterosexual relationship out of fear for their personal safety and fear of going to hell. [Mr A] stated he was willing to testify to the genuineness of the former relationship.
Consideration of claims and assessment of credibility

This was a case in which the applicant was squarely on notice that his credibility and that of his claims was in issue.
The applicant’s sexuality
At hearing, I asked the applicant a series of open questions about his sexuality – the realisation of his sexuality, his life as a gay man in Lebanon, and his life in Australia as a gay man.
The applicant’s answers did not demonstrate that he was discussing his life and his lived experiences. For example, when asked what he had been told by members of his family, school and society in general about homosexuality, he responded in generalities, saying that no one talked openly as they are a Muslim society and if they found out they would kill him and consider homosexuality as an insult. I attempted to direct his responses to specific things that he had been told by specific people but he responded again with general statements that he had been told this was wrong and shameful by his family and at school. His responses gave the impression that he was detailing the general or prevailing view of his society, rather than any specific statements that he had heard.
This impression was deepened when I asked the applicant how he had felt when he had realised he was same-sex attracted. He had just explained that his family and society had told him or made him aware he would be killed for being same-sex attracted, but then stated that when he realized he was homosexual, he felt happy, he felt that that was something missing in his life so when he found it he clung to it and did not leave it. When I noted to him that he had told me that everyone around him had told him it was forbidden and wrong, he responded with what he did (keeping his relationship with [Mr B] a secret, his family suspecting the relationship), rather than how he had felt. I followed up by asking what he had personally believed about homosexuality at the time he came to realize that he was homosexual and he said that for him it was quite normal, as he started to feel quite happy to be with [Mr B].
I then asked the applicant what he thought would happen if he remained in Lebanon, and what sort of life he believed he would have. He responded simply, despite a number of questions about this, that he would have been killed, and there was no future for them in Lebanon. He did not indicate that he, or [Mr B], had considered moving to a city such as Beirut, because Lebanon is a small country. I explained to the applicant my concern that I thought it strange that he could not tell me any plans of future he had thought would have as a gay man in Lebanon. He responded that he could not do anything as any tip off to the police he would be put in prison, wherever he went he was in danger.
I have read studies that suggest that coming out creates particular cognitive dissonance for homosexual males raised in the Muslim faith because the prevailing view in those societies is that homosexuality is against the law of nature in Islam and that this commonly creates feeling of sadness and shame.[1] Indeed, this appeared to be the thrust of the applicant’s claims about what he had been told of homosexuality in Lebanon and that society’s prevalent views of homosexuality. It caused me concern, therefore, that the applicant did not appear to have had any moment of cognitive dissonance, but had simply accepted his sexuality and did not express that he had felt doubt or shame.
[1] See Tamilchelvan, S, Ab Rashid, R., “Being a Muslim gay man: a systematic review”, TRAMES, 2017, 21(71/66), 3, 273–284,
I asked the applicant if he had socialised as a homosexual in Australia. He gave evidence that he had done so sporadically, going to [a Venue] sometimes. I asked if he was on any gay dating apps and he said he was not. I asked if he had any photos of him socialising and he said he did not and that he did not have enough money to socialise regularly. I asked if he had been involved in any marches or other activities supporting the homosexual community and he said he had not because his knowledge of English was limited. He said he did not take part in the campaigning as he was stressed but he was very happy with the decision. I asked if he read any gay or lesbian magazines or books. He said he had, sometimes. I asked if they were in Arabic and English and he said they did not have these in Arabic but he had read a few in English. When asked what their names were he said he could not remember. I asked if he was aware of problems faced by gay men in Australia. he said he had never faced any problems. I asked again, if he was aware of problems for gay men in general. He said since the new law of gay marriage he felt people are living a normal life without any problem. The applicant’s responses provided little detail about his claimed life as a homosexual man in Australia. Whilst I understand that people may find barriers such as language, money and in his case fear of the Lebanese Australian community to be a problem, the applicant was unable to provide any further basis to his claim that he is a homosexual.
I have carefully thought about the applicant’s responses. I have had regard to the applicant’s written claims, but these do not assist because they are also expressed in general terms. I have had regard to the supporting statement of [Mr A], and his evidence at the hearing. Whilst I accept that he gave this evidence in good faith, he has relied on the self-report of the relationship from the applicant and [Mr B], and I therefore give his evidence only limited weight. I have had regard to the evidence of [Mr C] and again I accept that he gave this evidence in good faith but that it relied on the self-report of the relationship from the applicant and [Mr B], and I therefore give his evidence only limited weight. I have had regard to the evidence of [Mr B] as to the relationship given to the previous Tribunal, but given my concerns with the relationship, as expressed here and below, and the fact that at that time [Mr B] was seeking a protection visa on the basis of the relationship, I give this evidence only limited weight in establishing the applicant’s homosexuality, or the relationship, as below. I have carefully considered the information before me. I place very considerable weight on the evidence of the applicant given to me, which exposed significant issues with his claimed homosexuality. I consider that this causes me to have grave doubts, deepened by the further concerns raised below, about his homosexuality and his general credibility.
In making the above comments, I am very aware that people find it difficult to speak of something as personal to themselves as sexuality. Yet the applicant was aware that this was a central issue in the case, and had been made aware by the delegate and the previous Tribunal, as well as the previous protection process, that his claimed homosexuality was in doubt. He did not, at the hearing before me, indicate any reticence nor did he tell me that he was uncomfortable answering my questions.
His claimed relationship with [Mr B]
These concerns are deepened when considered with the information before me about his claimed relationship with [Mr B].
It should be noted that the applicant has continued to claim that his relationship with [Mr B] continued for ‘almost ten years’. By my counting from his 19^th year when he claims the relationship began until 2018, this would have been for thirteen years. I did not raise this discrepancy with the applicant and I do not place any adverse weight on the discrepancy – I accept that the applicant’s claim is to have been in a long term relationship with [Mr B] that began when he was young in Lebanon and continued in Australia until October 2018. I do not find it material whether this is counted as almost ten or thirteen.
As above, I put information to the applicant pursuant to s.424A, to which he responded. This information is that information was provided confidentially to the Department that the applicant and the person claiming to be his partner, [Mr B], are not homosexual; that they lived together but in actual fact live separately and are both falsely claiming to be homosexual in their claim for a protection visa in order obtain permanent residency in Australia. The applicant responded to this information by asserting that the relationship with [Mr B] had been genuine and had lasted for almost ten years. To the previous Tribunal he had said maybe the person who had called was the same person who had called their families in Lebanon and what the person said was not true.
I place no weight on this allegation. The allegation was made anonymously and contains little information. It is impossible for me to determine the motivations of the person making the allegation or their ability to be aware of the truthfulness of the allegations. I give it no weight.
The second and third set of information put in the letter concerned the applicant’s (former) partner. This information indicated that [Mr B] had recently voluntarily departed Australia and returned to Lebanon. The third set of information was that information from departmental records indicates that [Mr B], is in a heterosexual relationship .As I explained in the letter, this was relevant because it called into question evidence provided that the applicant’s claimed partner feared harm upon return to Lebanon because of his homosexuality and/or genuine homosexual relationship with the applicant, which may in turn raise doubts that the applicant feared harm on return to Lebanon. I noted that the information may undermine the applicant’s claim to be a homosexual, or that he was in a genuine homosexual relationship, or that he feared harm if returned to Lebanon and may lead the Tribunal to doubt his general credibility.
The applicant in his response claimed that their relationship ended in October 2018, that [Mr B] ended the relationship because of his fear. This claim was also made in the declaration from [Mr A]. The applicant reiterated these claims at the hearing. I noted to him that it seemed strange the [Mr B] would end an almost thirteen year relationship on these grounds. The applicant said he had been shocked too. I noted that I had some doubts about this explanation because these fears, and threats from Sheikhs and others would have taken place throughout their relationship – in Lebanon, as the applicant had claimed, they had been told by their families, religious leaders and society that homosexuality was against Islam, so I was not sure that this explanation made sense in the context that [Mr B] had continued his relationship with the applicant for almost thirteen years in the context of this negative social and community experience of homosexuality. I noted that the applicant’s evidence was that their families had had concerns that they were in a relationship as far back as 2008 – 2009 and had tried to keep them apart according to his evidence. He responded that they had doubts but he and [Mr B] always denied whenever they confronted them, they denied, and said they are just friends and there was no relationship. He said he had had a relationship with [Mr B] for a long time. He said he was now more worried as [Mr B] had returned to Lebanon married and his family would have been happy with that, but he would return to Lebanon unmarried and would be at greater risk.
At the hearing [Mr A] gave evidence about the relationship, in addition to the statutory declaration he has provided. At the hearing he said that he had known the applicant and [Mr B] since 2010. He said he was a social worker in the community and had had threats particularly since the same-sex marriage debates. He had been threatened and had had to go to the police about this. I asked if this related to the situation of the applicant particularly. [Mr A] said for some years there had been a rumour in the community that they were always seen together. He said when [Mr B] came to him he said he was scared and wanted to leave the relationship with the applicant and go back to Islam. People found out he had helped and came onto [Social media]. I asked had he helped other homosexual men as claimed in his declaration. He said he had. I asked then, could the threats be related to that other work. He conceded it could be. He said he had spoken with [Mr B] in January 2019 and [Mr B] has asked him to help him renew his Lebanese passport, which [Mr A] had done. [Mr B] had said he was scared from the Sheikh and Imam and was scared someone would do something. He said he had not heard from [Mr B] since then. I note as above that much of the information provided by [Mr A] is self-reported. I do understand that [Mr A] gave evidence that [Mr B] ended the relationship because he was scared, but for the reasons below I find this unconvincing. I have weighed [Mr A]’s evidence of this below.
These concerns are not the only difficulties. As I noted to the applicant at the hearing, one of the things that had been consistently raised by the delegate and previous Tribunal was the lack of evidence of a relationship with [Mr B]. I noted that there were some photos of them in their bedroom, submitted with the previous application, as well as several bills and two statements indicating they had lived at the same address in that period, and a joint bank account. I noted that this might seem sparse evidence for a relationship that had been claimed to exist for almost 13 years. I noted there seemed to be a lack of any photographs or indication that they had socialised or been together in social situations as a couple for example. The applicant responded that when they went out they used to take pictures with friends but he was not aware that these were needed and would help. I noted he had been asked for evidence of the relationship previously. He said he had provided what had been asked for. I explained my concerns with the lack of evidence of the relationship and specifically asked the applicant to provide photographs of him and [Mr B] in [Suburb] where he had said they liked to go, as well as any other evidence of the relationship he had. Despite being provided with time to do so, the applicant did not provide any photographs or other evidence of the relationship, only the further statutory declaration dated 3 September 2019 referred to below.
I also raised with the applicant my concern that he had claimed that prior to going to Tripoli to study English together their parents had been suspicious and tried to keep them apart, but his evidence had been that his family helped them financially renting a flat. He responded that although his family were suspicious he and [Mr B] had told them there was nothing between them, they were just friends. I noted his evidence had also been that their families had paid for them both to come to Australia. he confirmed this and said that when they first came to Australia, their families were suspicious, but when they told their families there was nothing between them their families helped them come to Australia. After a while when news went back to them that he and [Mr B] were in a homosexual relationship, that was when their families stopped helping them and threatened to harm him. I noted that I had concerns that their families had suspicions but continued to provide support for the two of them to stay together. He said his family was suspicious but they denied it. I noted that his evidence had been that when they were in the village their families were suspicious and tried to keep them apart. The applicant agreed. I noted then that it appeared very odd that the families would not only tolerate them staying in the same place in Tripoli and then coming to Australia together, but financially supported them to do so, which appeared inconsistent with his claim that their families had tried to keep them apart. He said that they had doubts, and the person their families helped them to stay with in Tripoli was from the village so the families felt safe about that, they had a room behind his house and rented it out for a couple of months.
At the hearing I put further potential adverse information to the applicant under s.424AA. This information was that in addition to the information already put to him in the s.424A letter, according to Department records, [Mr B] had voluntarily left Australia for Lebanon, is married to a woman, and [Mr B] and this woman have a [age] year old child. As I put to him, this information is relevant because it may indicate that he had not told the truth about when his claimed relationship with [Mr B] finished, if [Mr B] has a [age] year old [child], the relationship may have finished much earlier, and/or may indicate he was not in a relationship with [Mr B] at all. With other information it might lead the Tribunal to doubt his general credibility, and to doubt that he was ever in a homosexual relationship or was homosexual at all.
The applicant responded to this information in writing. He stated that his relationship with [Mr B] was genuine and extended almost over a ten-year period. He states that although their relationship ended in October 2018, he was not aware of his partner’s marriage until he was informed by his social worker prior to [Mr B] travelling back to Lebanon. He was shocked to hear that his former partner has a baby [child] who is now [age] years old, prior to him being informed by the Tribunal he had no knowledge of that fact. He states that it seems certain his former partner was not always honest with him and for many years had deceived him by living a double life. He states that it was not until October last year that his former partner revealed to the applicant that he wanted to end the relationship but [Mr B] never told him that he intended on getting married or the fact that he had a baby [child] with his wife. The applicant is devastated by the breakdown in their relationship and more so by the fact his former partner has been living a double life, concealing from him the nature and extent of his relationship with his wife. Despite the deception, the applicant believes his former partner loved him and only married because of fear and to shed the infamy of being branded a homosexual amongst his family and community.
With this response the applicant provided none of the photos he said he possessed and which I asked him to provide to establish the relationship, nor any other supporting documentation.
I have given the evidence of the applicant, as well as the evidence of [Mr A], and the witnesses who appeared previously, much thought. However, despite being given numerous opportunities, the applicant has not established the existence of the relationship. It is true that he, and for a considerable period, [Mr B], continued to assert that they were in a relationship. It is true that [Mr A] and the other witnesses claim to have seen them as a couple. It is true that they have submitted photos of them together in a bedroom. It is true that they appeared jointly on utility bills and had a shared bank account historically. But the applicant has been unable to provide detail of the relationship, nor typical evidence to support such a relationship such as photos of the two of them in social situations, which the applicant claimed to have yet which he has not provided, despite a specific request to do so. I specifically explained to the applicant my concern that there appeared to me sparse evidence of a long term relationship. I continue to be concerned that the evidence of the relationship is sparse, and indicate that the two of them were not in a relationship with each other, even if they represented themselves as such to [Mr A] and the other witnesses.
A second concern with the relationship centres on the fact that the applicant has claimed that their families were suspicious of his and [Mr B]’s relationship whilst they were living in the village, and tried to keep them apart, yet provided financial support for the two of them to study English in Tripoli and then travel to Australia at around the same time. As I put to the applicant, this behaviour seemed at odds with his claims that they were suspicious of the relationship and tried to keep them apart. I found the applicant’s responses did not assist – saying simply that he and [Mr B] denied the relationship. He has not been able to explain why the family’s would continue to financially support them despite their apparent suspicions and attempts to keep them apart – it appears that the families were happy to support the two of them remaining together and taking opportunities together. I find this behaviour inconsistent with the applicant’s claims of suspicions and attempts to keep them apart from their families. The behaviour of the families, in financially supporting the two of them to live together in Tripoli, and to both travel to Australia, indicates to me that the families had no concerns with them being together. With the above concerns, and those below, it further leads me to doubt that the applicant and [Mr B] at that time were in a homosexual relationship together.

I turn now to the adverse information. Information from the Department indicates that the claimed partner of the applicant, [Mr B] voluntarily returned to Lebanon, had married a woman, and claimed to have a [age] year old child with that woman.
The applicant claimed that [Mr B] returned to Lebanon and married because he was in fear, he wished to return to Islam and to hide his former homosexual relationship with the applicant. The applicant’s claims in this regard are supported by [Mr A]’s evidence that [Mr B] came to him and, in effect, provided evidence that supported the applicant’s claims. the applicant further claimed that his partner must have lived a double life and been deceptive.
I do not find these claims convincing. As I put to the applicant, [Mr B] would have been confronted with similar anti-homosexual rhetoric from Sheikhs and others in Lebanon and in Australia for the duration of their long term relationship. I am not convinced that the rhetoric increased after or during the debate about same sex marriage in Australia as the applicant and [Mr A] have claimed, nor that this would have had a significant impact on [Mr B]. I am not convinced that the claimed fear and desire to return to Islam and hide his homosexuality from family and community would motivate him to end a long standing relationship with the applicant in which these elements would have been present for the duration of the relationship, return to Lebanon and marry a woman. I find the explanation offered by the applicant implausible. I have carefully considered the evidence of [Mr A] that supports the claims of the applicant. Given my concerns with the claims of the applicant, and my concerns that he was not in a relationship with [Mr B] at any point, I find that the concerns I have outweigh the corroboration of the evidence by [Mr A]’s statements.
The information that [Mr B] has a [age] year old child with his wife is further information which tends to disprove the claims of the applicant. This information tends to indicate that the relationship between [Mr B] and his wife was of a [number] year duration at least, and tends to indicate that the applicant has not been truthful in his claim that his (always claimed to have been exclusive) relationship with [Mr B] ended in October 2018. I do not find his claim that [Mr B] was living a double life and had been untruthful with him to assist - he has provided no detail about why this would have been the case, about whether the claimed motivations of [Mr B] were still the same claimed motivations but happened [number] or more years prior – his latter explanation does not appear to me to sit well alongside his earlier explanation of the ending of the relationship.
I have considered the evidence of the relationship. As I put to the applicant, the evidence of what was claimed to be a long term relationship was minimal, and the behaviour of the families appears inexplicable given the claim they were concerned and wanted to keep the two apart, yet funded their being together. Even on this basis alone it appears to me that the applicant has failed to establish that there was a homosexual relationship between him and [Mr B] at any time. This is in the context where he claims to have had a long standing relationship in Lebanon and then in Australia with [Mr B], but can provide very little supporting information about this relationship. This is in the context where he claimed to have pictures of the two of them in social situations in [Suburb] and other places with friends but has not provided these pictures. The applicant has been unable to address these concerns. The evidence of the witnesses does not greatly assist, relying as it does largely on self-reporting by the applicant and [Mr B] of their claimed relationship, and I place minimal weight on this evidence.
The adverse information provides a further concern, indicating as I find it does that [Mr B] was not in an exclusive relationship with the applicant for at least [number] years, where the applicant claimed to have been in an exclusive relationship, and tending to indicate that [Mr B] may not have been truthful in claiming to be in a homosexual relationship with the applicant.
When looked at together, these issues lead me to make the following findings. The applicant and [Mr B] were not ever in a homosexual relationship, despite representing themselves as such to the Department and Tribunal, and in some limited social situations in Australia to a number of select friends. The applicant has lied consistently to the Department and Tribunal about the existence of this relationship. The applicant in lying about this core element of his claim has demonstrated that he lacks credibility and I find that I cannot rely on any of his evidence being truthful given his willingness to lie over a long period about this claim. I find that the applicant is not credible or a witness of truth.
Given my findings above, there are only very limited bases on which hi accept the applicant’s claims, that is, where they are backed up or established by objective evidence.
I accept the applicant was born and lived in [Village], in the Akkar region of North Lebanon prior to travelling to Australia, on the basis of his student visa application. I accept therefore that the applicant is a national of Lebanon, which is also his receiving country.
As I have accepted this, country information indicates that this area is predominantly Sunni and I accept that the applicant and his family are of the Sunni Muslim faith.
I do not accept that the applicant is homosexual on the basis of my credibility and other findings above. I do not accept that the applicant has been in a homosexual relationship with [Mr B] or anyone else, at any time.
I have thought carefully about whether the applicant may have been or may be imputed to be homosexual. However, having regard to my findings above, and indeed to his evidence, I find that the applicant and [Mr B] have only claimed to be in a relationship to those people who have appeared as witnesses and who have supported the applicant. I do not accept that these people have disseminated this claim more widely. I therefore do not accept that there is any real chance or real risk that the claim that the applicant is homosexual or in a homosexual relationship with [Mr B] has been disseminated more widely to the Lebanese Australian or Lebanese community or their families.
I do not accept, on my credibility findings, that the applicant has been threatened by anyone in Australia or Lebanon by phone or otherwise on the basis of his claimed relationship with [Mr B] (which I have not accepted), his claimed homosexuality (which I have not accepted), or his imputed homosexuality, which for the reasons above I have not accepted would be wider than their limited supporters who have given evidence.
I do not accept that the applicant’s former partner, [Mr B], returned to Lebanon, married and had a child on the basis of fear or threats.
Whist I accept that [Mr A] and [Mr C] may have received threats, the evidence was that they had assisted a number of Arabic homosexuals and I do not accept, given my findings above, that these threats were related at all or have any bearing on the situation of the applicant.
The applicant has claimed that his family have heard that he and [Mr B] do not do prayers or attend mosque. Given my credibility findings, I do not accept this claim, but have considered it below in an abundance of caution.
Later in the hearing the applicant claimed that his father got Hezbollah involved to find him and punish him as a homosexual. I do not accept this claim on the basis of my credibility findings, because I do not accept his family believe him to be homosexual, and because I do not accept that his father, a Sunni man from Akkar, would seek the assistance of a Shia para military organisation to find and punish his supposedly homosexual son. Given the political/sectarian background of Lebanon this claim is implausible.
Is there a real risk that the applicant will suffer significant harm if he is removed from Australia to Lebanon?
I accept that the applicant is a [age] year old Lebanese national of the Sunni faith from [Village] in Akkar, North Lebanon. If he were returned to Lebanon I find that he would be most likely to return to [Village].
I do not accept, on the basis of my findings above, that he is homosexual. I do not accept on my findings above that he would seek to form a homosexual relationship on return to Lebanon, or engage in any behaviour or conduct which might lead to him being labelled homosexual. On my findings above I do not accept that there is any real risk that his actions in Australia, limited as they have been, will lead to him being imputed with homosexuality or with having been in a homosexual relationship with [Mr B] or anyone else. I do not accept that his family suspect or suspected, know or believe that he is homosexual or has been in any homosexual relationship.
On the basis of the above I find that there is no real risk that the applicant will suffer significant harm for reasons of his homosexuality (which I have rejected), for his claimed relationship with [Mr B] (which I have found not to be genuine), nor, given the findings above and the limited basis on which he represented this relationship, that he will be imputed to be homosexual or to have been in a homosexual relationship by his family, community, government, Sunni’s, Shia’s, Hezbollah, pro-Syrian forces or anyone else if he is removed from Australia to Lebanon now or in the reasonably foreseeable future.
In his application for protection it was claimed that he feared harm from Hezbollah and pro-Syrian forces as a Sunni and the ongoing political, economic, and social situation in Lebanon. At the hearing I asked the applicant why these people would harm him and he said for his homosexuality. He said this was the main reason. I asked if there was any other reason and he said there was not, that was the main reason. He said that Hezbollah would be involved in his punishment as they have total control over there. He said Hezbollah would kill him as a Sunni and as a homosexual. I asked if he feared pro-Syrian forces. He said they are in cahoots so if Hezbollah does catch him, Syrian forces will catch him, Akkar is close to the Syrian border. There are a large number of Syrians in Lebanon since the war. I asked him if he feared harm because of the current political, social and economic situation in Lebanon. He said he feared harm because of being gay, and politically because of Hezbollah and Syrian interference, they would all hurt him because of his homosexuality. I noted to him that in relation to the security situation in Akkar, I may find that there is no real risk of him being harmed as a result of the security situation in Akkar, as a result of the Syrian war and any effect that would have in Akkar, He said that security is not good in Lebanon and it was more acute for him because he is gay and because his father got Hezbollah involved to find him. he said that there is a Shia village near their (Sunni) village, and they can do whatever they want and because of being gay the Shia will harm him.
I have considered the security situation in Akkar. The country information makes clear that this area is majority Sunni.[2] It is also clear that Lebanon faces a range of security issues, and that there have been clashes between Lebanese security forces and militants in the North of the country, and that the conflict in Syria has increased tensions between communities.[3] But the country information does not support a claim that the applicant as a Sunni returning to a majority Sunni area, will be harmed as a Sunni or in generalised violence. On the basis of the country information, I find that the applicant, a Sunni male returning to a Sunni dominated area, even with some security challenges, will not face a real risk of significant harm on the basis of the security situation there.
[2] DFAT Country Information Report - Lebanon, 19 March 2019, 3.12.
[3] DFAT Country Information Report - Lebanon, 19 March 2019, 2.43 – 2.49.
I have above rejected that he is gay or that his father got Hezbollah involved to find him. I have above rejected that do not accept as above that Hezbollah or Shia will harm him for these reasons. I have considered the claim of the applicant that he fears the ongoing political, economic, and social situation in Lebanon. At hearing the applicant indicated that by this he feared harm because of being gay and from Hezbollah and pro-Syrian force interference. I have above rejected that he is gay or would be imputed with being gay and therefore I do not accept he would be harmed on this basis by anyone. I have considered the security situation above. Considering all of this information I do not accept that the applicant will suffer significant harm due to the ongoing political, economic, and social situation in Lebanon as he has made that claim, that is, relating this to his claimed homosexuality, which I have rejected.
The applicant has also claimed his and [Mr B]’s families have found out that he and [Mr B] do not attend mosque or do prayers. I have found above that I do not accept this claim, given my credibility findings and the fact that what underpinned this claim was their claimed homosexual relationship, which I have rejected. I am willing to accept, however, that the applicant may not be an observant Sunni Muslim, having lived in Australia for many years. However, the country information indicates that Lebanon is a tolerant, multi-faith country which is reasonably tolerant of a diversity of religious practices and observance of religious practices, with the Sunni sect in particular seen to be one of openness and toleration.[4] On the basis of this information as well as my credibility findings I do not accept that the applicant will face significant harm from his family, community, or anyone else on the basis he may be or may be imputed to be a less observant Sunni Muslim having lived in Australia for many years.
[4] DFAT Country Information Report - Lebanon, 19 March 2019, 3.9 – 3.28; Mneimneh, H., “Sunni Lebanon: An “Oddity” at Risk”, The Washington Institute, Fikra Forum, 8 May 2019,
I have considered what I accept of the applicant and his claims. Taken at their highest, the applicant is a Sunni male from Northern Lebanon who may be or be perceived to be a less observant Sunni because he has lived in Australia for many years, returning to the North where there have been some security issues. Considering these claims together, on the basis of my findings and the country information, I find that there is no real risk that the applicant will suffer significant harm from his family, community, government, Sunni’s, Shia’s, Hezbollah, pro-Syrian forces or anyone else if he is removed from Australia to Lebanon now or in the reasonably foreseeable future.
Conclusions
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)(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.
Sean Baker
Member

[2020] AATA 1129

12 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction