1907109 (Refugee)

[2021] AATA 1530

1907109 (Refugee) [2021] AATA 1530 (16 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907109

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Mara Moustafine

DATE:16 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 16 April 2021 at 12:12pm

CATCHWORDS

REFUGEE – Protection visa – Lebanon – no longer s.438(1) restrictions on any documents on Department file – adverse political opinion – anti-Syrian opinion – sectarian and political conflict – drug smuggling – inconsistent evidence –Insufficient information and lack of detail – applicant fabricated his claims for the purpose of obtaining a protection visa – credibility concerns – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 19

Migration Act 1958, ss 5, 36, 65, 424AAA, 424, 438,499

Migration Regulations 1994, Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
MZAFZ v MIBP [2016] FCA 1081
Prasad v MJEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

   Procedural History

2. The applicant is a citizen of Lebanon and is [age] years old. He arrived in Australia [in] August 2012 on a Lebanese passport as the holder of an Australian (sponsored) Visitor visa.

3. The applicant applied for a Protection visa on 2 October 2012. On 18 January 2013 a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection visa because he was not satisfied that the applicant met the requirements for that visa.

4. The applicant sought review of the delegate’s decision at the Refugee Review Tribunal (RRT) on 15 February 2013. The Tribunal, differently constituted (Tribunal 1), affirmed the delegate’s decision on 19 July 2013. The applicant sought Ministerial intervention under s.417 of the Act on 16 August 2013, which was declined on 23 December 2013. He submitted a further request for Ministerial intervention on 26 February 2014, which was declined on 19 March 2014.

5. On 31 March 2014 the applicant sought judicial review of the RRT’s decision. [In] April 2015 the Federal Circuit Court found that the decision was affected by the fraud of the applicant’s migration agent, who had not correctly recorded the applicant’s alleged fear of harm from certain members of the Syrian intelligence service and had falsely notified the Tribunal that the applicant did not wish to attend his hearing.

6. The matter was remitted to the Tribunal for reconsideration and the Tribunal, differently constituted (Tribunal 2), affirmed the delegate’s decision on 17 June 2016[1]. [In] May 2017 the Federal Circuit Court found that Tribunal 2 had failed to disclose the existence of a certificate pursuant to s.438 of the Act. The court found that the material covered by the certificate may have been potentially relevant to the issues arising in the Tribunal’s review.

   [1] On 1 July 2015 the Refugee Review Tribunal along with a number of other Commonwealth tribunals were amalgamated with the Administrative Appeals Tribunal (AAT). Any active applications with the former RRT at the date of amalgamation automatically became applications in the Migration and Refugee Division of the AAT.

7. The matter was remitted to the Tribunal for reconsideration and the Tribunal, differently constituted (Tribunal 3), affirmed the delegate’s decision on 22 February 2018. [In] March 2019 the Federal Circuit Court found that while Tribunal 3 had advised the applicant of the presence of a s.438 certificate, it did not disclose the contents of the certificate in order to provide the applicant with an opportunity to comment or make submissions on its validity.

8. The matter is now before the current Tribunal pursuant to s.19A(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

   Protection visa application

   According to his protection visa application, the applicant is a Lebanese citizen, born in [year] in [Country 1].  He stated that he was of Lebanese ethnicity but did not identify a religion. He completed [number of] years of education in [Tripoli] between October 1993 and August 2004, was unemployed until September 2009, when he went to live in [Country 2] from September 2009 to August 2012,  where he worked [in a workplace] [before] coming to Australia. He has never been married. He has two brothers in Australia, while his parents and two other brothers live in Lebanon.

9. His claims for protection, as set out in response to questions in the application form are that:

   a.He left Lebanon due to the ongoing political and sectarian conflict as he was unable to express his political opinion given the prevailing restrictions imposed by the government, particularly on those who supported the Syrian uprising of those who rendered assistance to Syrian refugees. He is highly critical of the Lebanese authorities’ complicity in the repression of the Syrian people and those who hold such a view and seek to express them openly are either kidnapped or killed by the Lebanese intelligence or other pro-Syrian factions.

   b.He has not experienced any harm in Lebanon because he has had to refrain from overtly expressing any adverse political opinion or in assisting the Syrian refugees.

   c.He fears that if he expresses his political opinion and/or assists the Syrian refugees or supports Syrian uprising, he will either be kidnapped or killed at the hands of the Lebanese intelligence, Hezbollah or other pro-Syrian factions and family clans.

   d.This will happen because he is an avid supporter of the Syrian uprising and condemns the Lebanese authorities’ complicity in the repression of the Syrian people.

   e.The authorities will not protect him because they seek to eliminate all those vocal in condemning the Syrian machine, which the Lebanese authorities have long been propping up by limiting or containing Lebanese support for the Syrian uprising.

10. In support of the application, the applicant provided a statement from [a local government official] dated [February] 2014 stating that the applicant cannot return to Lebanon due to the difficult security situation there, country information extracts on Lebanon from DFAT’s Smart Traveller as of 21 February 2014 and a copy of his Lebanese passport with visa stamps.

11. The applicant declined to attend a Departmental interview but opted for a decision to be made on the papers.  The delegate found that the applicant did not meet the criteria for the grant of a Protection visa under either as a refugee or under complementary protection.

    Review Application

12. This matter has been remitted on three occasions. In the first instance it was remitted due to fraud on the part of his migration agent. The matter was remitted on a second occasion on the basis that the Tribunal failed to disclose the existence of a certificate issued pursuant to s.438 of the Act. On the third occasion it was remitted on the basis that, by not disclosing the contents of the certificate, the Tribunal failed to provide the applicant with an opportunity to comment or make submissions on its validity.

    Non-disclosure certificate

13. On 28 April 2015 the delegate placed a non-disclosure certificate on folios 68, 71, 78-83, 133-134 and 137-139 of the Department’s file no [deleted] pursuant to s.438(1) of the Act on the ground that they ‘contain[ed] information relating to an internal working document and business affairs’.

14. [In] November 2017 the Federal Circuit Court found that Tribunal 2 had failed to disclose the existence of this certificate to the applicant and that the material covered by the certificate may have been potentially relevant to the issues arising in the Tribunal’s review. [In] March 2019 the Federal Circuit Court found that, while Tribunal 3 advised the applicant of the presence of a s.438 certificate, it did not provide the applicant with an opportunity to comment or make submissions on its validity by disclosing the contents of the certificate.

15. However, on 1 April 2019 the Department provided to the Tribunal a Disclosure Decision Checklist which indicated that there were no longer any s.438(1) restrictions on any documents on the file. This is consistent with case law, in particular MZAFZ v MIBP [2], in which the Federal Court held as invalid a non-disclosure certificate where the only reasons cited as contrary to the public interest were  ‘internal working documents’ and did not identify the harm that could be done to an agency by their disclosure.[3]

    [2] MZAFZ v MIBP [2016] FCA 1081.

    [3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37].

16. The applicant appeared before the Tribunal (as currently constituted) on 4 March 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese dialect) and English languages.

17. At the hearing the Tribunal discussed with the applicant the reason why the matter had been remitted for reconsideration. It noted that, since his appearance before the previous two Tribunals, there was no longer s.438(1) restrictions on any documents on the Department file. It outlined the nature of the previously restricted documents as set out below, offering to provide copies of these documents if required.

    a.Folios 68 and 71: ISCE records showing biodata and visa application history 

    b.Folios 78 – 83: Submission to Assistant Minister for Immigration and Border Protection seeking his response to the exercise of his public interest power under section 417 of the Act in the applicant’s case.

    c.Folios 133-134: Matter Details Summary regarding the applicant’s litigation and Departmental withdrawal on 10 April 2015 and email from Department Litigation section to NSW Compliance dated 13 April 2015 advising that as the matter is being referred to the RRT for reconsideration, compliance action would be inappropriate.

    d.Folios 137-139: internal email from Departmental Legal officer discussing the applicant’s litigation and instructing a Departmental withdrawal in the matter if the allegations of migration agent fraud are substantiated at the final hearing.

18. The Tribunal noted that it did not consider the documents previously covered by the certificate relevant to the issue before the Tribunal, which was whether the applicant was owed protection in Australia as a refugee or a person entitled to complementary protection criteria.

19. The Tribunal explained to the applicant that, in accordance with the AAT Act and relevant law (see paragraphs 34-36 below), in conducting its review, it could consider the evidence which he had given to previous Tribunals. This included evidence the applicant gave at hearings before Tribunal 2 on 22 October 2015 and Tribunal 3 on 16 January 2018, based on transcripts of those hearings[4].

    Evidence before Tribunal 2

    [4] There is no relevant evidence to consider from Tribunal 1 as the applicant did not appear before it.

20. Key points from the applicant’s evidence at the hearing on 22 October 2015 were:

    a.The reasons he was seeking protection were that he encountered a lot of problems before going to [Country 2] from three men who were trying to get him to work for them, smuggling drugs from Lebanon to [Country 2]. He did not have a relationship with them and did not know them. He initially said they approached him [when] they found out from a friend that he was going to [Country 2], but later said they were chasing him even before his decision to go to [Country 2]. He refused several times, but they were adamant and told him that if he did not do it, his life would be in danger. The last time he met them, they threatened to kill him.

    b.His paternal cousin who worked in the [workplace] in [Country 2] organised a job for him and it took one to two months to get the visa. He returned to Lebanon and stayed with his parents for a month in 2011 because he had to take annual leave.

    c.Another reason was the influx of Syrians after the Syrian war began in 2011, including persons seeking protection in his area. The Syrians caused problems by killing and stealing. They wanted more control of Lebanon and he wanted them to go back to Syria.

    d.He does not want to help Syrian refugees and does not support the Syrian uprising or condemn the Lebanese authorities’ complicity in the repression of the Syrian people. 

    e.He would not be able to find work in Lebanon and to subsist. The Syrians had taken the jobs as they accept lower wages. Even before 2009 it had been hard to get a job. His brothers left for better economic opportunities.  His parents live a normal life. Their children send them money. Before 2009, he was living with his parents and had no expenses.  

    f.He has not experienced any harm in Lebanon because he has refrained from overtly expressing any adverse political opinion and fears that if he does express his anti-Syrian opinion, he will be kidnapped or killed.

    g.Those who express such views openly suffer harm from the Lebanese intelligence or other pro-Syrian factions. He fears that he may be harmed by Lebanese intelligence, Hezbollah or other pro-Syrian factions and family clans.

    h.He did not know the claims that were written in his application. Although he told his lawyer all his problems, the lawyer had not put them all in the application form.

    i.He left Lebanon for [Country 2] because he wanted to travel and for a job. He also had problems with three men, not so much sectarian conflicts (as per Department application).

    j.He is afraid to return because of sectarian and political conflict. There was a lot of sectarian violence in Lebanon. Sunnis are hated by everyone, especially Shias and Alawites.   

    k.He fears the Lebanese intelligence service because they harm everyone.

    Evidence before Tribunal 3

21. Key points from the applicant’s evidence at the hearing on 16 January 2018 were:

    a.He confirmed that he knew and agreed with the information contained in his application and that it had been read back to him in Arabic.

    b.If he returned to Lebanon he may be killed by pro-Syrian government supporters because they wanted him to join them, but he refused. They first approached him after 2005 in his village and he met two of them in a private area in the street. They wanted him to smuggle drugs out of the country. This was in 2006. He refused but was given time to think about it. They contacted him several times and feeling anxious he contacted an eminent person in the village for protection (ex-[politician] [Mr A]), whom he variously claimed was pro-Syrian or Hezbollah.      

    c.In the next year, the people contacted him and told him they knew he went to [Mr A] and that he was now in danger because he had talked about them.  They had contacted him around four times all up.  He then went back to [Mr A] again who said he would protect the applicant.

    d.Sometime in 2006/07 he was waved down while driving his car and asked for financial help. He drove off, and the next day another person waved him down and the same exchange took place. He was punched, grabbed and taken by car to the two people who had asked him to smuggle drugs.

    e.He was taken to a house. It was the second time he had met these people. They questioned him about why he had gone to [Mr A] and said this was the first warning and if he told anyone about this he wouldn’t know what happened next time.  They told him they wanted him to work for them. 

    f.He spent about six months at home not doing anything and wondering what to do.  He got a job through a friend and worked in construction in the Beirut area for a year but stopped after sustaining [an] injury.

    g.He decided to leave Lebanon in 2009 because the people gave him a last warning at the end of 2008 that he work for them or they would kill him.  He went to work in [Country 2] in a job his brother found him at [a workplace] for two months, then at [another workplace] where his cousin worked.

    h.He returned to Lebanon for a month in 2011 as his brothers from Australia were visiting and for his brother’s wedding.

    i.His Australian brothers suggested that he apply for an Australian visa and he later came to Australia from [Country 2]. In Australia he had been working in construction.

    j.He visited Lebanon for a month in 2017 but stayed in Beirut and did not go to his area. If he returns to Lebanon he will not be able to go to his village as the same people who assaulted him previously may find him and assault him again.

    k.He claimed that he had told the previous Tribunal that he had been abducted and beaten badly by the drug smugglers who wanted him to work with them. The Tribunal put to him under s.424AA of the Act, that there was no mention of this on the recording of the previous Tribunal hearing, raising questions as to whether the incident ever occurred. The applicant declined to comment when invited to do so.

    Current Tribunal

22. At the hearing on 4 March 2021 the Tribunal took further evidence from the applicant on his background, his claims for protection and his current circumstances. Where relevant, this evidence is referred to below.

23. The applicant failed to present a copy of his Lebanese passport at the hearing. However, at the Tribunal’s request, he subsequently emailed a photocopy of the passport, including pages containing his biodata and visa stamps.

24. On 5 March 2021 the Tribunal wrote to the applicant inviting him to comment on or respond to information arising out of his evidence at the hearing, that since coming to Australia, he had returned to Lebanon twice, first in 2017, then in 2018 because his father was seriously ill and that he had got married there on the second occasion. In accordance with s.424A of the Act, the Tribunal drew to his attention that Department records indicated that he had spent two months out of Australia between [June] and [August] 2018. This suggested that he had spent around two months in Lebanon on his most recent return, when in addition to visiting his ailing father, he celebrated his marriage. The Tribunal suggested that, coming on top of his evidence to Tribunal 3 about his two previous month-long visits (2011 and 2017), his most recent visit to Lebanon, the country where he claimed to fear harm, for an extended period and participation in a marriage event, raised doubts about the credibility of his claim to fear serious or significant harm there.

25. On 16 March 2021 the Tribunal received a response from the applicant’s authorised recipient, including a statement from the applicant dated 12 March 2021, in which he made the following relevant points:

    a.He travelled to Lebanon with the Department’s permission due to his ‘compelling and compassionate circumstances’ to visit his serious ill father on two occasions: from [November] 2017 to [December] 2017 and from [June] 2018 to [August] 2018.

    b.While the main purpose of his trip was to see his seriously ill father, he also fulfilled his father’s wish and celebrated his arranged marriage to a family relative [in] June 2018. He and his wife travelled to [Country 4] together between [date] and [date] July 2018, then spent a ‘quiet and isolated time’ with his parents until [August] 2018.

    c.While he was away from Australia from [6]/2018 until [8]/2018 on the second trip he did not spend the whole two months in Lebanon but went to [Country 4] and during his stay in Lebanon was ‘hiding’ and ‘not myself in public’. His life was very quiet. He was driven by a friend from Beirut to North Lebanon as a passenger in the car to avoid any attention.

    d.His original reason for departing Lebanon was that he had a well-founded fear of harm as he had ‘previously been abducted and beaten badly’ and was unable to express his political opinion. He maintains that he cannot go back to Lebanon where he will be killed.

    e.Now that he is married and has a young son he ‘will definitely be harmed and subjected to serious harm’ if he returns because of the poor economic conditions in Lebanon (the country is effectively bankrupt; the local currency has continued to lose value; almost half the population is unemployed; very high prices of food, petrol, medication), lack of a government and the COVID-19 pandemic affecting the whole country. 

    f.He fears serious or significant harm in Lebanon because, ‘as a matter of fact, I was subjected to harm and my two visits should not lead the Tribunal to conclude that even though I was lucky in Lebanon during my short stay not to be harmed but in the future if I return to Lebanon for good I will be harmed’.

    g.He has a genuine fear to return to Lebanon and has ‘suffered in the past’ and ‘there is no probative evidence’ to support that he ‘will not be harmed again’ if he returns to Lebanon.

1. The applicant also provided supporting documents, including medical records and letters from his father’s doctors in 2017 and 2018, a letter from his mother requesting he visit his father, photographs of his father in hospital and an untranslated document which is annotated as the father’s death certificate.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complimentary protection.

   Relevant Law

3. 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.

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

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

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

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

7. 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.

   Credibility

8. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or 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 him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.

   Information to be considered on remittal

9. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.[5] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[6] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

   [5] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015).

   [6] s.19D(4) of the AAT Act, inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50].

10. In SZEPZ v MIMA, the Full Federal Court found that, where a Refugee Review Tribunal decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid.[7] The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[8] 

    [7]SZEPZ v MIMA (2006) 159 FCR 291 at [39].

    [8] MZXRE v MIAC (2009) 176 FCR 552 at [5], where North and Rares JJ commented that it would be wrong to suggest that following a remittal whatever had been done by the original Tribunal had to be redone. See also SZNKRv MIAC [2010] FMCA 182 (Raphael FM, 19 March 2010) at [9].

11. The Tribunal is mindful that, while it is not necessary to repeat all the steps and procedures taken in arriving at the invalid decision, the Tribunal should generally invite the applicant to a further hearing to discuss any live issues in order to comply with s.425 of the Act.

    Analysis, reasons and findings

12. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

13. For reasons outlined below the Tribunal did not find the applicant to be a credible and reliable witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, the vague and implausible nature of some key aspects of his claims and other reasons detailed below.

14. The applicant’s evidence about key aspects of his claims shifted between his protection visa application and his various Tribunal hearings. In his original application the applicant’s claims centred on his inability to express his political opinion in support of the Syrian uprising and those who assisted Syrian refugees. The applicant claimed he was at risk of being kidnapped or killed by Lebanese intelligence, Hezbollah, or other pro-Syrian elements because he was an avid supporter of the Syrian uprising and highly critical of Lebanese authorities for repressing the Syrian people. However, he told Tribunal 2 that he did not support the Syrian uprising or condemn the Lebanese authorities for complicity in the repression of the Syrian people and did not want to help Syrian refugees. He claimed he had refrained from expressing his anti-Syrian opinion for fear of being kidnapped or killed by Lebanese intelligence, Hezbollah, or other pro-Syrian elements (paragraph 20.d–g).

15. By contrast, the applicant told the current Tribunal that he had never been involved in politics and made no claims about being denied the ability to express his political opinion, other than in his post-hearing statement. Rather, his claims to this and previous Tribunals centred around threats from people who tried to recruit him as a drug smuggler, although his evidence as to who they were, when and where he encountered them and why he was of particular interest to them was vague and often inconsistent.

16. The applicant told the current Tribunal that he came to Australia to seek protection because ‘some Syrians’ were after him in Lebanon. They wanted him to take part in their drug smuggling activities and threatened to kill him if he refused. The applicant said that the events took place around 2007 and they had kept at him for a long time through contact in the street and on the phone to the point where he almost gave in to them. However, he was unable to provide basic details as to who these people were, where they first approached him or how they knew him. He said repeatedly that he could not remember their names because the events had occurred some 14 years ago and that he had put all the details in his application. Asked how he knew they were Syrians and where they were from, the applicant said he knew by their accents and that they were from among the many Syrians who had been living in Lebanon from a long time ago. As for why they were so persistent in recruiting him as a drug trafficker, he confirmed that he had no special attributes and just stayed at home.

17. Significantly, as noted at paragraph 39 above, there was no mention in his original application of the applicant being threatened by people seeking to involve him in drug smuggling. This claim was first introduced in his evidence to Tribunal 2, though he referred only to being approached by ‘three men’ whom he did not know. In his evidence to Tribunal 3, the applicant said he was approached by two men who were ‘pro-Syrian government supporters’ but he told the Tribunal that they were Syrians.

18. In a discussion of the inconsistencies in his evidence, the applicant claimed that he had been telling the same thing to the Tribunal every time but that his first solicitor had probably ‘made up all these things’ as he was the one ‘who falsified my signature’. When the Tribunal pointed out that he had not said this before, the applicant responded that the solicitor told him ‘sign here’ and completed the application form. The Tribunal reminded the applicant that he had earlier confirmed that he knew everything in his application form, which had been read back to him in Arabic, and that he had told the same to Tribunal 3 (paragraph 21.a). He then said this was correct.

19. The Tribunal accepts that there was fraud by the applicant’s agent in not recording the applicant’s claim to fear harm from certain members of the Syrian intelligence services and that the agent falsely notified the Tribunal that the applicant did not wish to attend his scheduled hearing (paragraph 5). It notes, however, that the applicant made no mention of this claim when he appeared before subsequent Tribunals. 

20. At his hearing before the current Tribunal, the applicant initially said that he did not know anything about the contents of the first application as his then agent had told him to just sign it and not worry about anything else and that he only knew about the application made after his first agent was dismissed. When the Tribunal pointed out that there had only ever been one application, the applicant shifted his evidence, firstly saying that he knew everything that was in it, but not whether it was in the first or the second application. However, he subsequently confirmed that he knew what was in the application and that it had been read back to him in Arabic. This is inconsistent with his evidence to Tribunal 2, where he said he did not know the claims that were written in his application because although he told his lawyer all his problems, the lawyer had not put them all in the application form.

21. Moreover, as discussed with the applicant, the Tribunal does not find plausible that ‘some Syrians’, whose names he had forgotten, who had failed to recruit him as a drug trafficker fourteen years ago, would still be after him if he returned to Lebanon now. When the Tribunal put to him that after all these years the unnamed Syrians might also have forgotten about him and moved on, the applicant conceded that maybe this was possible.

22. The applicant told the current Tribunal at hearing that he had never experienced harm in Lebanon because the people who were after him could not get to him. In his written application and before Tribunal 2, he also stated that he had not experienced harm in Lebanon, although he attributed this to his refraining from overtly expressing any adverse political opinion (application form and Tribunal 2) or assisting the Syrian refugees (application form). However, in his statement dated 12 March 2021 he referred to previously being abducted and badly beaten (paragraph 25.d) and being ‘subjected to harm’ (paragraph 25.f). He first made this claim at his hearing before Tribunal 3 (paragraph 21.d). However, when asked why he had not mentioned it in any previous evidence, declined to comment (paragraph 21.k).

23. In light of the applicant’s vague, inconsistent and implausible evidence about his central claim, the Tribunal is not satisfied that the applicant was ever approached to traffic drugs in Lebanon by anyone, including Syrians or pro-Syrian government supporters or threatened with death if he refused or that he will be harmed by such people if he returns to Lebanon now or in the reasonably foreseeable future. Nor does the Tribunal accept that the applicant has been unable to express his political opinion, be it in support of or against the Syrian uprising and those who assisted Syrian refugees; against the Lebanese authorities for repressing the Syrian people or any other reasons; nor against the Syrians – for fear of being harmed, kidnapped or killed by Lebanese or Syrian intelligence, Hezbollah, or other pro-Syrian elements.

24. The Tribunal’s concerns about the veracity of the applicant’s claims and his general credibility is exacerbated by his visit to Lebanon of almost 2 months in 2018, during which he was married, as well as visiting his ailing father. As put to the applicant, coming on top of his earlier two month long visits in 2011 and 2017, it raises doubts about the seriousness of his claimed fear of serious or significant harm there.

25. The Tribunal has considered the applicant’s response at paragraph 25 but did not find it persuasive. The Tribunal is prepared to accept that the applicant went on his last return visit to Lebanon for compassionate reasons to visit his ailing father, that he spent one week of the two months he was away with his new wife in [Country 4] and may have kept a low profile. Nevertheless, this was the third time that he spent an extended period in the country where he claimed to fear harm, travelled between Beirut and north Lebanon multiple times and participating in the celebration of an arranged marriage. The Tribunal is not satisfied that, if the applicant was seriously of interest to people who he claims were targeting him, news of his presence and activities would not have reached them in the small community of north Lebanon.

    Summary Findings

26. Considered together, the multiple concerns outlined above lead the Tribunal to conclude that the applicant has not been a truthful or credible witness about his experiences in Lebanon and the reason he fears harm there or that any of his evidence can be relied upon. In the Tribunal’s view, the applicant fabricated his claims for the purpose of obtaining a protection visa in order to remain in Australia.

27. The Tribunal is not satisfied that the applicant was ever approached in Lebanon to smuggle drugs by anyone, including Syrians or pro-Syrian government supporters, was ever kidnapped or assaulted or threatened with death for refusing to do so. Nor does the Tribunal accept that the applicant has been unable to express his political opinion, be it in support of or against the Syrian uprising and those who assisted Syrian refugees; against the Lebanese authorities for repressing the Syrian people, against the Syrians or for any other reasons for fear of being kidnapped or killed by Lebanese intelligence, Hezbollah, or other pro-Syrian elements. It follows that the Tribunal does not accept that the applicant will be harmed by such people if he returns to Lebanon now or in the reasonably foreseeable future.

28. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Lebanon the applicant will suffer serious harm amounting to persecution for any of the reasons set out in s.5J(1)(a) of the Act. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution should he return to Lebanon now or in the reasonably foreseeable future.

29. The Tribunal has also considered the applicant’s claims under complementary protection. As it has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a protection visa, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.

30. At hearing the applicant told the Tribunal that, even if there was no risk to his life, living in Lebanon had become impossible due to political instability, economic hardship, unemployment, especially since the major explosion at Beirut port, as well as the COVID-19 pandemic; sentiments he elaborated on in his post-hearing statement (paragraph 25.e). The applicant was especially concerned about his ability to find a job and earn a living in Lebanon as he was now responsible for providing for his wife, son and widowed mother.

31. The Tribunal understands the applicant’s concerns and that he would prefer to remain in the comparative safety and stability of Australia. However, as discussed with the applicant, under the complementary protection criterion a person is taken not to be at real risk of significant harm if the risk is one faced by the population generally and not by the applicant personally. The Tribunal is satisfied that the political instability, economic hardship, unemployment, and health risks related to the COVID-19 pandemic, which the applicant claims to fear, are faced by the population of Lebanon generally and not by him personally. Therefore, the Tribunal finds that there is no real risk that the applicant will suffer significant harm in Lebanon for these reasons. The Tribunal notes that, with his experience in working in the construction industry both in Beirut and Australia, the applicant is better placed than most to find work, including in the reconstruction of Beirut port and environs.

    CONCLUSIONS

32. 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

33. 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).

34. 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

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

    Mara Moustafine
    Member