1928635 (Refugee)

1928635 (Refugee) [2023] AATA 2656 (14 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Joumana El Halwe (MARN: 1388161)
CASE NUMBER:  1928635
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Mark Bishop
DATE:14 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 March 2023 at 11:44am
CATCHWORDS
REFUGEE – protection visa – Lebanon – particular social group - person subject to persecution or substantial discrimination amounting to a gross violation of human rights – threats of harm – brother shot community member – brother’s subsequent accident and disability – victim’s family now pursuing applicant due to his success – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Lebanon applied for the visa on 21 June 2018. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 21 February 2023 to give evidence and present arguments.: The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant provided a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicant’s date of birth is [date].The applicant applied for a Business visitor visa (FA-600) on 18 May 2018. This was granted on 21 May 2018. He arrived in Australia [in] May 2018. He lodged an Application for a Protection Visa on 21 June 2018. He attended [primary] school until July [year]. He was employed as a soldier on the border of Lebanon with the Lebanese Armed Forces from [September] 2008 until [February] 2014[1]. He was employed as a [Occupation 1][2] at [Company 1] from January 2012 until May 2018
[1] [File number] page 16
[2] [File number] page 16
In his Application for a Protection Visa[3] and referral to his attached statement[4] dated 21 June 2018 the applicant’s claims for protection were set out as follows and summarised by the Tribunal:
·A few years ago his brother shot [Mr A] who lived in a different village leaving him handicapped.
·After this incident his family have been a tribal conflict with [Mr A’s] family.
·His brother was involved in a car which left him permanently handicapped.
·[Mr A’s] family are no longer targeting his brother as he is handicapped
·[Mr A’s] family are now targeting the applicant as he is doing well in his job and he is financially supporting his mother and siblings after his father’s death.
·Members of his family attempted to resolve the issue with [Mr A’s] family but without success.
·He left Lebanon as he feared he will be killed by [Mr A’s] tribe. They are seeking to harm him as his brother shot [Mr A].
[3] [File number] See decision record page
[4] [File number] See pages 18 and 19 and answers to questions, [File number] wherein the applicant provides family detail (paras 1-10), reasons for leaving Lebanon (paras 12-14), fear of [Mr A’s] family (paras 15-16), why he thinks he will be harmed (paras 17-21), lack of authority protection (paras 22-24), [Mr A’s] family well connected with a common name (paras 25-29)
In an interview with the Department the applicant addressed the detail of his claims.[5] The Tribunal has listened to the audio tape. The delegate made the following findings:
·Firstly, I found the applicant’s claim that he was threatened with serious harm by a family in Lebanon to be implausible. He claimed that his brother [Brother A] (born [date]) at the age of [a young boy][6] shot [Mr A] with a hunting rifle. It was put to the applicant that this incident had occurred in the 1990’s. He responded that while this incident had happened a long time ago he lived in tribal society and his brother is no longer of interest to the family due to his car accident at the age of [age]. He claimed that his family attempted to resolve their problems [Mr A]’s family who did not report the incident to the authorities and they continue to seek revenge. The applicant was questioned as to why he is of adverse interest to this family given the incident happened in 1996. He responded that he is now a mature adult and he had attempted to resolve their difficulties with the tribe without success and they continue to seek revenge. When questioned further as to why a family would threaten to harm him after an incident in 1996 he responded that there are tribal traditions in Lebanon based on revenge. I did not find plausible his claim that a family would seek to harm him in Lebanon due to an incident with his brother in 1996.
·Secondly, I have noted the applicant’s delay in raising significant claims and his unconvincing account of claimed past problems. He claimed he received threats of harm as he lived in a tribal society in Lebanon. It was put to the applicant that according to his application he was not harmed in Lebanon. He responded that he did not experience any harm but he received threats of harm. He claimed that after his father’s death they threatened to harm him and they wanted to fight him. He was asked when the threats began in Lebanon and he claimed it was 3 months after he started working in 2015. He was asked on how many occasion he was threatened and he responded that they shot at his home and they called him and made threats to kill him. He was asked when the shooting had occurred and he claimed it was 2 months before he left Australia. He was asked if he could be more specific about the timing of this incident and he responded that his memory is not good due to his difficulties in Lebanon. He then claimed that the shooting occurred in 2015. It was put to the applicant that he had claimed this incident occurred 2 months before he departed Australia in 2018. He responded that he started working in 2015 and he had not understood the question. He was asked when he received threatening phone calls. He responded he had not received threatening phone calls but the threats were sent as messages from others. He claimed he received threatening messages “every now and then, and every 2 months”. He claimed he first received threatening messages before the death of his father and his father took care of the threats. He claimed that in 2014 after this father’s death he was receiving threats. It was put to the applicant that he did not mention a shooting incident in his written claims and he responded that this was an addition to his claims. His delayed, internally inconsistent and confusing account of past problems in Lebanon, raises doubt as to the credibility of his claims.
·Thirdly, I note the applicant’s long term residential history and his stable employment in Lebanon. When this was raised with the applicant he responded that he was not threatened when he was a military officer in Lebanon and the threats began after he his father passed away, and he financially supporting his family. I have considered his responses but find that his long-term and stable residential and employment history is not indicative that he experienced difficulties in Lebanon, and raised doubt as to the credibility of his claims.
·Furthermore, I have considered his immigration history. Despite claiming threats of serious harm from 2013 the applicant did not seek migration until 2018. When questioned as to why he delayed his migration to Australia he responded that he became concerned for his safety after the shooting incident. I did not find this response persuasive as he claimed he received threats to kill him from 2013. His delay in seeking migration to Australia raises doubt as to the credibility of his claims.
[5] See decision record pages 3 and 4
[6] See [file number] paragraph 2
On 15 February 2023 the applicant made pre-hearing submissions[7] summarised by the Tribunal as follows:
[7] Doc ID number 10744711
·The applicant identifies himself as a person subject to persecution or substantial discrimination amounting to a gross violation of human rights in Lebanon. His particular social group (PSG) is family.
·Details as follows:
oHis brother (born [year]) sometime in the mid 90’s (1996) shot and killed a boy with a hunting rifle. Three years after this incident his brother became permanently handicapped. Since that time [Mr A’s] family turned their attention to him because he was financially well off and cared for his mother and siblings. He was never harmed in Lebanon. He received threats in Lebanon.
oThe issues with [Mr A’s] family started around 2015 approximately 3 months after he commenced employment. The trouble got worse over time. Two months prior to leaving Lebanon ”they” shot at this home. He received threatening messages. He lost protection with the passing of his father. He was not threatened whilst a military officer in Lebanon.
·The applicant fled Lebanon solely to seek protection.
·He cannot return to Lebanon because of the following:
oThe original conflict (shooting), failure to defuse the family feud, the shooting at his house led the applicant to understand he was no longer safe and by staying was endangering his mother and siblings.
oHis mental and physical health and safety.
oThe experience of persecution to date is traumatic in nature.
·Local authorities will not get involved. There is no protection or safety. His family have warned him not to return to Lebanon because [Mr A’s] family are still looking for him. He cannot relocate to another part of the country. He is a Sunni Muslim and relocation will not be possible.
·The following grounds make it unreasonable for the applicant to return to Lebanon:
oPersecution experienced.
oPsychological effects.
oProspective employment.
oReturning to Lebanon as a failed asylum seeker will result in ill treatment.
On 20 September 2022[8] the applicant wrote to the Tribunal and requested access to documents pursuant to a FOI request.
[8] Doc ID number 10245596
On 7 December 2022[9] the Tribunal wrote to the applicant and advised his file was being prepared for allocation to a Tribunal member and as a result a hearing may be scheduled.
[9] Doc ID number 10523928
On 20 December 2022[10] the Tribunal wrote to the applicant and invited him to attend a hearing scheduled for 21 February 2023.
[10] Doc ID number 10572349
The applicant attended his first consultation[11] with a psychologist in Australia on 22 December 2022.
[11] Doc ID number 10739465 Psychologist report page 1
The applicant provided a copy of a psychological report dated 20 January 2023 [that] set out the following:
·The applicant was seen [via] telehealth on 3 occasions (22 December 2022, 6 January 2023 and 20 January 2023).
·The applicant took on family responsibilities with the passing of his father in 2017, is illiterate and can only speak Arabic. He is a single man and lives alone in Melbourne.
·His tribal society is based upon revenge. There is a blood feud between his family and [Mr A’s] family. [Mr A’s] family have sworn to take revenge for the death of of their family member. Honour and revenge are part of this tribal society. There is no protection system. He was forced to leave Lebanon to protect himself. He came to Australia on a business visa. As an illiterate he needed assistance to apply for protection. He relocated to Melbourne.
·He presented in a deteriorated state. His self-care is poor. He suffers nightmares. He lacks community support apart from work. He supports his family overseas.
·He underwent a number of psychological tests as follows:
oDepression Anxiety Stress Scales - Short Form (Dass-21) which is a self-report scale designed to measure the negative emotional states f depression, anxiety and stress. The applicant scored in the ’Extremely Severe’ range across all subscales (Depression, Anxiety and Stress).
oInternal Trauma Questionnaire which is a self -report measure and his score on this measure are consistent with a diagnosis of COMPLEX Post Traumatic Stress Disorder (CPTSD).
oThe Social Avoidance and Distress Scale (SADS) is a 28 item true/false scale that measures aspects of social anxiety including distress, discomfort, fear and avoidance.
·The applicant presents with extremely severe depression, anxiety and stress and Complex PTSD as result of army service, the death of his father in 2017 and the ongoing threats against him from [Mr A’s] tribe. He has commenced with a daily routine to improve his overall self-care. His capacity and current level of functioning impair his ability to protect himself should he return to Lebanon. He is at risk in Australia. He is better able to mitigate that risk in this country.
In evidence he applicant advised the Tribunal as follows:
·He was educated to primary school level and whilst he speaks Arabic only has a limited ability to read Arabic. He does not speak or read or write any other languages. For the [years] after he left primary school (around 1998 he thinks but is not sure) he worked [basically] accompanying his father for [number] years in a support role. It was his father’s job to provide for the family not his in these years. He did not have any other work in this period.
·Circa 2008 he joined the Lebanese Armed Forces and engaged with the enemy (Palestine’s he described them). For many years he was part of a section charged with the responsibility of collection of body parts after military engagements or as part of the consequences of bombs going off in crowded areas. As a consequence of these types of duties he became stressed, upset, couldn’t think straight and was depressed for long periods whilst serving in the army. He received constant treatment from the military for PTSD. This treatment ended in 2014 when he left the army.
·His entire family still lives in his home village in the far north of Lebanon. His sisters have all married men from the village and live with their husbands away from but close to the family home.
·In the period 2014 until 2018 he worked in [industry] but cannot recall a great deal of the detail. His mind is clouded and confused He did not receive any mental health treatment post his discharge from the army in 2014.
·He was unsure of the detail of events that started the family feud between the men of two villages. He did not witness any of the events that led to the death of a young family member of a tribe in a different village. He accepts that retribution is justified as he comes from a tribal society where that practice is the norm. As now the eldest son of the family that caused the death of a younger man from a different tribe in a different village he anticipates and expects that retribution will be visited upon him. He accepts this is proper and the way things are in his part of Lebanon.
·Since leaving the army he has been the recipient of threats on a number of occasions. Those threats are from persons unknown and over the phone. He presumes the threats comes from agents of the warring family. Similarly colleagues and friends of his have warned him they have been asked to pass on threats that the warring tribe will now act against him. His father was held in a position of respect and was able to keep off the retribution. His father is now dead and there is nobody else to keep the warring tribe at bay.
·The threats, their constant repetition caused him great upset. He was and is not safe in any part of Lebanon. This is because the warring family or tribe has connections all through Lebanon. Lebanese people understand this as a basic fact of life. Even in Australia he is not completely safe as Lebanese people from the north, now resident in Australia, are aware of the feud between the two tribes.
·The important considerations are retribution and honour. The police can’t and won’t intervene. The military might intervene only if he is harmed but not before such event as he was informed by superiors in the army it was a tribal matter and he had to fix it.
·In Australia he did not seek any mental health treatment prior to December 2022. He lives with a cousin who makes a room available to him. He does not socialise. He does not have any friends. He is basically alone and lonely. He works only irregularly as his mental condition and concerns prevent him from regular work attendance. In essence his work options are limited as he is basically illiterate, has few skills and lives in terror the tribe from the village will reach out to him and kill him.
·Occasionally, perhaps every 4 months if he has some minor savings he will remit such to his family in Lebanon.
·He sought psychological advice in December 2022 and January 2023. He has followed the advice of his psychologist as follows:
oShe provided him with a mental health plan that involves, proper eating, regular exercise, socialising with people, breathing techniques to control his anger and increased sleep.
oHe has seen a family doctor and been referred for a MRI. He does not yet know the outcome of that MRI as it is currently with his GP. He intends to continue following the prescribed treatments. He is not as yet taking any anti-depressants nor other medication.
·He continues to have feelings of stress, anxiety and depression. He has major concerns about his physical well-being and safety. He wishes to leave the Lebanese community in Melbourne and live in NSW or Queensland whee he thinks he will be safe.

As the factual situation in this review application is not completely clear and to some extent clouded by poor memory, inability to communicate in English, limited education on the part of the applicant, a lack of witness evidence, a large amount of hearsay evidence, the lack of knowledge as to the source of alleged threats, the inability to identify the perpetrators of alleged threats, the lack of availability of mental health treatment in Lebanon post discharge from the army, PTSD, continuing feelings of feelings of stress, anxiety and depression and applicant decision not to seek mental health treatment in Australia from date of arrival until December 2022 the Tribunal has sought to establish a timeline of events before having recourse to available country information.[12] In addition to the above concerns the applicant failed to make available to the Department and Tribunal relevant country information that addressed the substance of his claims.
[12] This includes academic literature, newspaper or press reports, policy papers and government reports.
Timeline [of applicant]
·[Date] Applicant born
·Approx. 1996 His brother [Brother A] (born [date]) shot [Mr A] when he was [age] years old
·Approx. 2000 [Brother A] involved in a car accident, left permanently handicapped
·Applicant claims that his father is able to protect him from [Mr A’s] family and defuse risk of tribal revenge (2000-2013)
·Applicant claims that he does not face any threats during the period that he was a solider (2008-2014)
·[ September] 2008     Applicant commences employment as a soldier with the Lebanese Armed Forces (LAF)
·[January] 2013           Father [dies][13]
[13] Family Extract Statement (English Translation), Department File [number], TRIM Reference [number].
·[February] 2014         Applicant ceases employment with the LAF
·January 2012-May 2018        Applicant employed as a [Occupation 1] at [Company 1]
·Overlap between LAF employment (2008-Feb 2014 and [other employment] Jan 2012-May 2018[14] ). Oral evidence at Tribunal references 2014-2018, after military service ended.
[14] Application for a protection visa, Department File [number], TRIM Reference [number] at page 16.
·2015    Started to experience problems with [Mr A’s] family
·Approx. March 2018   Two months prior to his departure, shots fired at his home in Lebanon
·18 May 2018   PRA lodged application for Business Visitor Visa, Subclass 600
o21 May 2018   Subclass 600 granted
o[May] 2018     PRA arrives in Australia
o21 June 2018 PRA lodged application for a PV Subclass 866
o27 September 2019    PV Subclass 866 Refused
o10 October 2019        AAT application lodged
o21 February 2023      AAT Hearing
Two issues arise from the material outlined above in this review decision as follows:
·The existence of a current practice of tribal revenge or retribution in the Akkar region of northern Lebanon (and more broadly across Lebanon) in relation to matters of family honour.
·The existence of a current practice that responsibility of tribal revenge/retribution can be transferred down the line to other male members of the family (where for instance, the primary target is no longer suitable such as in this case where the applicant's brother is now handicapped following a car accident).
Country information discloses the following
- Clans and tribes are reported to be key actors in Lebanon’s Akkar Governorate, particularly in the areas of Karha and Wadi Khaled, and play a major role in the social and political life of the villages. A history of revenge and vendettas has also influenced the local social fabric, and it has been reported that armed conflict has been common in the histories of these clans and that inter-clan tensions have been fragile. However, clans in Akkar Governorate also play a significant role in mediating conflicts and resolving disputes.[15]
·Reports have been located which refer to examples of family and tribal conflict and revenge violence occurring in Akkar Governorate[16], although other reports have also been located which refers to tribal leaders being able to avert a planned revenge attack by a bereaved family after a member of one of the two main tribes had killed a member of the other.[17]
·Reports also indicate that tribal leaders as being able to avert a planned revenge attack by a bereaved family after a member of one of the two main tribes had killed a member of the other.[18]
·A report[19] also state that the level of vengeance that would be sought by a tribe varies depending on the nature of the original bloodshed. It also refers to mechanisms that are used to resolve conflicts between tribes such as reconciliation, where conciliators who are not members of either party would intervene, or asylum, where an individual involved with an incident within their clan or with another clan would seek refuge in the homes of one of the clans. The protecting clan would then contact the other clan to seek a resolution to the conflict, with the individual remaining with the protecting clan if a solution cannot be found.[20]
·Information has been located which indicates that clans and tribes in Lebanon do not count their family numbers in a conventional way, and that as a result these numbers can vary significantly in size.[21] Reports have been found which refer to examples of clans/tribes/families including 10,000 or 15,000 individuals.[22] This report states as soon as an incident occurs between two people from different clans, all of the members of the respective clans become involved in the blood feud, especially if there has been a death.[23]
·Conciliators play a large role in resolving clan issues. They intercede in many cases, including bride kidnapping, land ownership disputes, injury, homicide, and armed battles between clans. The conciliators are notables from clans not involved in the problem concerned. They seek to stop the cascade of blood, which may never end without their intervention as each retaliation leads to another. When a battle between two clans occurs, the conciliators form a large committee divided into two teams. They each simultaneously approach the barricades of one clan while raising white flags and bring the fighters down so that the reconciliation negotiations can begin. In the old days, the conciliators would not leave a clan’s homes or drink its coffee until its notables had handed the matter over to them and pledged to accept the solution that they deemed fit. The conciliators examine the issue and develop solutions that save the face of both clans based on the circumstances of the conflict. They only announce the solution they propose after consulting the people concerned and checking that it suits their demands, without diminishing the position of the other clan.[24] The reconciliation agreement comes as part of an integrated package that even encompasses the legal cases of any fugitives or detainees. Often, the legal cases of the people concerned are settled as part of the reconciliation agreement itself.
·Interviewees as set out in the report nonetheless acknowledged the positive role that clans play in mediating conflicts, easing tensions, and taking initiatives in this regard rather than relegating such roles directly to security forces. Younger generations of clan members often take pride and express feelings of accomplishment and validation when performing such roles. Another old habit that members of clans took pride in is the one of “protecting the weak”, which translated in Sunni-majority areas such as Wadi Khaled with clan members offering protection and support to refugee communities. [25]
·In addition, the report noted that in ‘areas like Wadi Khaled, clans and powerful families retain significant control over the community’s social, political, and economic matters’.[26]
[15] '"Le Monde de L'Entre Deux": Conflict Analysis Study of the Border Areas of Akkar and Baalbek El-Hermel Governorates', International Centre for Migration Policy Development, August 2021, pp.9, 12, 16-17, 20230228121817.
[16] 'Man found dead in Akkar, Syrian refugee camp burned in retaliation', L’Orient le Jour (L’Orient Today), 24 July 2022, 20220726111349; 'A Precarious Balancing Act: Lebanon and the Syrian Conflict', International Crisis Group, 22 November 2012, p.5, CIS24713; 'Tit-for-tat abductions in Wadi Khaled, dignitaries say 'detainees are visitors until Ahmed is released'', Naharnet, 10 June 2012, CX291735
[17] ‘Lebanon: Local Capacities for Peace', Saferworld, December 2014, p.15, 20230228130745
[18] 'Lebanon: Local Capacities for Peace', Saferworld, December 2014, p.15, 20230228130745
[19] 'Lebanon Conflict Analysis - Khalde (November 2021)', Center for Operational Analysis and Research (COAR), 17 February 2022, pp.1-2, 20230302154502; 'Lebanon: Tribal Revenge on the Rise as State Retreats', Sleiman, N, Daraj, 28 March 2021, 20230228161614; 'Rockets, ruins, and revenge: Clan violence spirals in Lebanon’s Bekaa Valley', Rose, S, The National, 20 January 2021, 20230302152144; 'Unpoetic justice: Brutal revenge for a murdered son is Lebanon's tragedy', Rabah, M, Middle East Eye, 27 May 2016, 20230303115141
[20] 'Clan "Justice" in Lebanon: A Final Judgement?', Allaw, S, The Legal Agenda, 17 January 2022, 20230302170853
[21] 'Meeting the clans of Lebanon', Samaha, N, Aljazeera, 18 August 2012, CX293333
[22] 'Meeting the clans of Lebanon', Samaha, N, Aljazeera, 18 August 2012, CX293333; 'A Precarious Balancing Act: Lebanon and the Syrian Conflict', International Crisis Group, 22 November 2012, p.5 n.37, CIS24713
[23] 'Meeting the clans of Lebanon', Samaha, N, Aljazeera, 18 August 2012, CX293333; 'A Precarious Balancing Act: Lebanon and the Syrian Conflict', International Crisis Group, 22 November 2012, p.5 n.37, CIS24713. See also
[24] 'Clan "Justice" in Lebanon: A Final Judgement?', Allaw, S, The Legal Agenda, 17 January 2022, 20230302170853
[25] '"Le Monde de L'Entre Deux": Conflict Analysis Study of the Border Areas of Akkar and Baalbek El-Hermel Governorates', International Centre for Migration Policy Development, August 2021, pp.16-17, 20230228121817
[26] '"Le Monde de L'Entre Deux": Conflict Analysis Study of the Border Areas of Akkar and Baalbek El-Hermel Governorates', International Centre for Migration Policy Development, August 2021, p.12, 20230228121817
The above country information indicates that families, clans and tribes play a critical role in the Akkar region of northern Lebanon. Families, clans and tribes can and do have a membership approaching 15,000 individuals. Clans play a significant role in the mediation of conflict and resolving disputes. Examples are available of family and clan leaders being able to intervene in disputes and avoid bloodshed in the case of the death of a clan member. Mechanisms have evolved and are used to aid reconciliation and conciliators are often used to resolve disputes and avoid bloodshed. Conciliators intercede in cases of homicide. Conciliators are often senior persons, notables or elders from families or clans not involved in the immediate dispute. Advanced mechanisms have been developed that allow conciliators and their respective teams to engage in the practice of conciliation. Clans often play a respected role in conciliating disputes and younger generations now acknowledge their utility and their contribution to the avoidance of bloodshed.
The Tribunal has reviewed all the above information. Only in the most general sense is the applicant’s evidence consistent with the information derived from country information sources as outlined in paragraphs 22 to 25 above. It is clear families, clans and tribes in the applicant’s home area carry enormous influence, are an integral part of the wider communities, mostly exert their influence in attempting to resolve disputes, avoid bloodshed, prevent the exacerbation of existing conflict or disputes inclusive of homicide and provide quite advanced mediation and conciliation services to achieve acceptable ends that is respected and expected by members of these communities.
The applicant has limited literacy. He can barely write in Arabic. He did not give evidence of ever being involved in any mediation or conciliation role or having participated in any negotiations with members of the aggrieved family or clan. He did not give evidence of others having been approached to act as agent for his family in conciliation or mediation proceedings. He had only limited knowledge of the role play by his father post the death of [Mr A] around 1996. His various written statements do not refer to any mediation or conciliation processes post the death of his father circa 2013.
The Tribunal has a serious problem in accepting the applicant was ever threatened with serious harm arising out of the death of [Mr A] around 1996. The role of his father, a lengthy peace or period of non-harm from the time of the death of [Mr A] until at least 2013 suggest that forces were at work in the wider community not to punish members of the offender’s family. Country information sources do not suggest the likelihood of a revival of a blood death as the price of retribution for the death of a young boy almost 20 years prior to 2013. Country information sources suggest that a preferable approach of conciliation and mediation was followed particularly in the case of the applicant’s father. The Tribunal does not find it plausible that the family of the victim would attempt to revive a blood vendetta against a somewhat remote family member of the offender’s family. More likely the family of the victim would attempt to engage others to continue the process of discussion or dialogue previously carried out with the applicant’s father.
The Tribunal notes that in the 22 years after the death of [Mr A] (as per the evidence of the applicant and as set out in the decision record) the applicant engaged in a relatively normal life in the army and in his subsequent employment in [industry]. He was not harmed in any way during this period of time. He was not directly threatened by members of the family of the dead boy. Their agents did not directly threaten him. He was left to go about his lawful business. He did not report the existence of threats to any members of his family.
The existence of threats is said to come from advice received second and third hand. The Tribunal is of the view this process of remote or second-hand threats is unlikely to have occurred and is inherently implausible. This is because of the pre-existing role of conciliation or influence and avoidance of harm or bloodshed achieved by the applicant’s father over decades. This end achieved by the applicant’s father did not occur in a vacuum. Whilst the applicant was not familiar with the processes engineered by his father that resulted in a lengthy period of peace or non-retribution it nonetheless occurred. The father engaged in a form of dialogue with members of the family or clan of the dead boy. That much is clear from the evidence of the applicant. Hostilities do not cease in a void. The cessation of hostilities and the lengthy period of non-retribution all suggest alternate solutions were fond that were acceptable to the parties as relevant. The applicant’s delays in taking action to protect himself after first receiving second-hand threats in 2013/2014, his confusing and inconsistent accounts of past problems he neither witnessed nor understood all raise doubt as to his credibility.
The applicant has been engaged in long term and stable employment for many years. He has not been a hidden figure. He was involved in critical work in the army and in a position that necessitated exposure to the public whilst he worked in [industry]. His long period of stable and continuing employment in highly visible positions suggests that he did not experience any difficulties in Lebanon and also raise serious questions as to his credibility.
The applicant advised the Tribunal he was first advised of threats in 2013/2014. He did not seek protection until after he arrived in Australia in 2018. This is a lengthy period of time. It suggests to the Tribunal that either the threats were not made, were not accepted as real or serious by the applicant or were not believed by the applicant as being so serious they were likely to be carried out. The history of actual non-intervention by the family of [Mr A] from 1996 until 2018 suggest a future likelihood of intervention in either Lebanon or Australia as fanciful. Whilst country information doesn’t totally discount the likelihood of blood intervention after a period of 27 years of not-retribution the Tribunal concludes it is highly improbable. The delay on the part of the applicant in seeking migration to Australia raises doubts as to the credibility of his claims.
The Tribunal has given careful and detailed consideration to the applicant’s claims and the evidence provided in his written statements, oral evidence, interview commentary. The Tribunal is not satisfied that the applicant genuinely fears persecution in Lebanon for the reasons claimed, or that his claimed fear of harm is credible.
Conclusion
The Tribunal finds that the applicant does not have a well-founded fear of persecution and his claims do not have a credible basis.
The Tribunal finds there is little chance that he will be harmed for any of the reasons he has claimed either on an individual basis or in aggregation. The Tribunal does not accept that he would be significantly harmed on the basis of things he has claimed. It follows that the Tribunal is not satisfied 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 the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a). Having concluded that the applicant does not meet the refugee criteria, the Tribunal has considered the alternative complementary protection criteria. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
For the reasons given above the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark Bishop
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2656

14 March 2023

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Immigration

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