1932525 (Refugee)

[2020] AATA 5544

1932525 (Refugee) [2020] AATA 5544 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1932525

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Jason Pennell

DATE:18 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 18 December 2020 at 4.22pm

CATCHWORDS

REFUGEE – protection Visa – Lebanon – Federal Court remittal – complementary protection criterion – subject of an order for death penalty –ordeal in prison – cruel and inhuman condition of the prison – legitimacy of the Order – involvement with members of an extremist organisation – necessary intent to cause significant harm – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), ss 36, 48A, 65, 411, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

AMA15 v MIBP [2015] FCA 1424
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZGIZ v MIAC (2013) 212 FCR 235
SZTAL v MIBP (2016) 243 FCR 556
SZTGM v MIBP [2017] HCA 34

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).

2. The applicant who claims to be a citizen of Lebanon, applied for the visa on 15 November 2012 and the delegate refused to grant the visa on 18 May 2015.

3. The applicant applied to the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (the First Tribunal), for review of the delegate’s decision on 20 May 2015. The First Tribunal, differently constituted, heard the applicant’s claims for protection over three hearings on 21 November 2016, 20 April 2017 and 23 January 2018 and affirmed the decision of the delegate not to grant the applicant a protection visa on 20 July 2018.

4. The applicant filed an application for judicial review to the Federal Circuit Court of Australia (FCCA) on 2 August 2018. The FCCA dismissed the application for judicial review of the First Tribunal’s decision [in] March 2019.

5. The applicant then made an application to the Federal Court of Australia (FCA). The FCA ordered that the orders of the FCCA be set aside and the matter remitted to the Administrative Appeals Tribunal for determination according to law.[1]

   [1]    [Details deleted].

6. The applicant appeared before the Tribunal on 15 June 2020 and 3 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

8. The issue in this case is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

1. 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.

Refugee criterion

1. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

Complementary protection criterion

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

1. 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 (the Department), 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.

Applicant’s Identity and Country of reference.

1. The applicant claims he was born on [date of birth] in [Akkar], Lebanon.[2] The applicant provided a certified copy of his Lebanese passport[3] to the Department as evidence of his identity. There is no suggestion that the applicant’s passport is fake. Therefore, based on the documentation provided by the applicant the Tribunal accepts he is a citizen of Lebanon, and as such, the protection claims of the applicant will be assessed against Lebanon as the country of reference and ‘receiving country’ respectively. 

   [2] Department [file]; f. 27

   [3] Department [file]; f. 222

2. The Tribunal is also satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country[4] and, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s. 36(3).

Migration History

[4] Department [file]; f. 228

1. The applicant first came to Australia on a [temporary] visa [in] June 2005 for a period of [number] days before returning to Lebanon. He came to Australia again [in] May 2010 on [another temporary] visa and first applied for a protection visa on 31 May 2010 which was refused by a delegate of the Minister. The applicant sought review with the Refugee Review Tribunal (RRT) but the RRT affirmed the delegates decision to refuse his protection visa on 30 August 2011. The applicant appealed the decision to the Federal Magistrates Court (FMC), but the court dismissed the application for judicial review [in] June 2012.

2. The applicant’s Bridging Visa A expired on 28 September 2011 and he remained in Australia unlawfully until [date] July 2012 when a Bridging Visa E was granted. The applicant applied again for protection on 15 November 2012 following the FCA’s judgement[5] which allowed him to make an application on complementary protection grounds. This application was refused by a delegate of the Minister on 18 May 2015 and the applicant applied for review. The Tribunal affirmed this decision on 20 July 2018.

Applicant’s Claims for protection

[5]    SZGIZ v Minister of Immigration and Citizenship

1. The applicant claims for protection were first submitted by a Statutory Declaration[6] declared on 18 May 2010 attached to his application for protection on 15 November 2012. In summary, the applicant claims:

   [6]    Department [file]; ff. 228-234

   (a)He sold [Item 1] to [Mr A] who, shortly after, was arrested by Lebanese intelligence for association with the Nahar El Bared conflict.

   (b)The applicant was requested to attend Lebanese intelligence headquarters upon which he was questioned about his association with [Mr A]. He explained that his only association pertained to the sale of [Item 1] before being released

   (c)Days later, he was again requested to attend Lebanese intelligence headquarters where he was again questioned and detained overnight.

   (d)The applicant was extensively interrogated for three hours each day for the following five days. During the interrogation he was handcuffed and hung by his legs with a piece of timber placed between his legs. He was also beaten with a steal object and electric shock was applied to his body in order to force a confession of an association with the militants

   (e)The applicant was transferred to [Prison 1] and held there for [number] years where he continued to be tortured using electric shock and beaten with a steal chain.

   (f)He was not permitted to access medical attention or legal assistance and was seldom allowed visitors. He was interviewed by [an independent organisation] who noted concern with his condition but were unable to assist.

   (g)The applicant was released without charge and forced to sign an undertaking that he would not discuss his imprisonment

   (h)In September 2009 he was shot in [Body Part 1] by Lebanese intelligence. He reported this to police who did not investigate and advised him to drop the mater for his own safety.

   (i)If he returns to Lebanon, he believes there will be further attempts on his life, and he fears he may be subject to further detention and suffer abuses of human rights

2. The delegate summarised the applicant’s claims as follows:

   (a)[In] 2007 the applicant privately sold [Item 1] to [Mr A]. He part paid him and assured him he would pay him the [balance]. [A short time later later] conflict between Fateh El Islam militants and the Lebanese army erupted at Nahar El Bared refugee camp.

   (b)[Mr A] did not come by to pay the balance as promised. The applicant attempted to call him several times but there was no answer. He later found out [Mr A] had been arrested by the Lebanese intelligence and the arrest was associated with conflict at Nahar El Bared.

   (c)The applicant received a phone call from the Lebanese Intelligence requesting him to attend their headquarters. He did so and was questioned regarding his involvement with [Mr A]. The applicant explained his only association was the [Item 1] sale and showed evidence of such. He was released.

   (d)The following week he was again called by the Intelligence and was asked to again attend the headquarters. The applicant did so, he was questioned and held overnight. The next day he was blindfolded and intensely interrogated for the next 5 days. He was beaten and tortured during this time. After five days he was transferred to [Prison 1] and held there without charge for [number years]. He was detained with others who had been convicted on terrorism charges.

   (e)The applicant was released without charge and made to sign an undertaking that he would not discuss any aspect of his imprisonment. He was warned his activities would be monitored.

   (f)In September 2009 an attempt on his life was made. He was shot in his [Body Part 1] whilst entering his [house]. He reported the incident to the police however they did not investigate the matter and he was advised to drop the matter altogether for his own safety.

   (g)His lawyer advised him to leave Lebanon, as he feared further attempts on his life were likely to be made.

   (h)The applicant claims [on Date 1] a court found him to be guilty of terrorism charges related to the above claims and has sentenced him to death. He presented claimed court papers to support this claim.

3. The applicant claims that he fears he will be killed if he returns to Lebanon.[7] He alleged he was in prison for [number] years and was shot in [Body Part 1] and was sentenced to death[8].

Documents provided by the applicant

[7]    Applicant’s interview relating to his application for protection with the delegate on 4 February 2015.

[8]    Department [file]; ff. 118-131

1. The applicant provided the following documentation to the Department to support his claims:

   (a)Certified copy of his Lebanese passport

   (b)Statement made by the applicant’s representative dated 2 November 2012 accompanying the applicant’s protection visa application[9]

   [9]    Department [file]; ff. 218-220

   (c)Original and translation of Lebanese Judicial Council dated [Date 1] sentencing of the applicant and others[10]

   [10] Department [file]; ff. 178, 156

   (d)Original and translation of a statement made by [Mr B] on 22 May 2010 (‘the [Mr B] statement’) declaring that he was the attorney of the applicant in the “case that lent to his arrest in [Prison 1] from [date].2007 to [date] where he was released because he was not guilty in a terror crime they attributed to him”[11]

   [11] Department [file]; f.164

   (e)A statement by the applicant permitting the Department of Immigration to make enquiries with Lebanese authorities in relation to the legitimacy of the court orders which prescribe the death sentence, dated 28 January 2015[12]

   [12] Department [file]; f. 132

   (f)An article [relating] to the sentencing in Lebanon of three suspects to death in absentia[13]

   [13] Department [file]; ff. 106-7

   (g)Original and translated ruling of the Lebanese Judicial Council dated [Date 1] sentencing the applicant and others to death in absentia

   (h)An online article titled “Torture by Police, Forced Disappearance & Other III Treatment” from gvnet.com/torture/Lebanon/htm

   (i)An internet item relating to the Lebanese political system, the government’s dysfunction and the conflicts arising therein

   (j)An article of the UN Human Rights Council dated March 2015 relating to the death penalty in Lebanon

   (k)An online article from “Equal Times” titled “Lebanon’s Prisons: Beyond the Pale of the Law” dated 10 November 2015

   (l)An online article titled “Lebanese authorities ‘knew about prison torture’” accessed through dated 23 June 2015

   (m)An online article from naharnet titled “UN Special Coordinator for Lebanon Visits Roumieh Prison” dated 22 October 2016

   (n)An online article from Al Arabiya News titled “Death in Lebanon prison” dated 23 April 2011

   (o)An online item titled “Prison lockdown continues in Lebanon County after ‘trash throwing’ and ‘acts of defiance’” dated 1 December 2015

   (p)An online item titled “Riots in Lebanese Roumieh prison over living conditions” dated 24 June 2015

   (q)An online article from The New Arab titled “Victims of ‘systematic torture’ in Lebanon’s prisons” dated 26 June 2015

   (r)An online article from Oxford University Faculty of Law titled “Speaking Out for Foreigners in Lebanese Prisons” dated 23 March 2016

   (s)Lebanon 2015 Human Rights Report

   (t)Original and translated ruling of the Judicial Council of Lebanon detailing the charges against the applicant in relation to weapons to Fath El Islam and committing fraud and bestowing the death sentence upon the applicant dated [Date 1]. (the Councils order’).[14]

   [14] Tribunal case file 1506898; ff. 166-177

   (u)Original and translated statement made by [Mr B], the applicant’s attorney in the criminal proceedings before the Justice Council. The author claims that the judgement was issued against the applicant in absentia and the applicant’s sentence was suspended and he was released on bail[15]

   [15] Tribunal case file 1506898; f. 191

   (v)Statement made by the applicant’s representative dated 5 December 2016 against the delegate’s findings and requesting thorough investigation into the applicant’s claims[16]

   [16] Tribunal case file 1506898; f. 193

   (w)A CD containing Lebanese news program where the applicant’s court outcome is discussed

   (x)Statement dated 26 April 2017 made by the applicant’s representative relating to the DFAT Country Information Report – Lebanon which was provided to the representative by the Tribunal. The representative notes the applicant’s fear of being imprisoned and addresses the moratorium on the death penalty in Lebanon

   (y)A statement made by the applicant’s representative dated 13 February 2017 addressing the DFAT Report on Lebanon of 23 October 2017. In his response the representative addressed the death penalty, investigations of suspects, arbitrary arrest and prison conditions in Lebanon

   (z)An online article by Dr Walid Abdulrahim Professor of Law titled “The State of Prisons in Lebanon” (undated)

   (aa)An online article titled “Lebanon’s Isis prison: A rare glimpse inside the jail from which terror attacks have been directed” dated 8 March 2015

   (bb)An online item on Lebanon – World Prison Brief data (undated)

   (cc)An online article from Al Arabiya English titled “In Lebanon’s most notorious prison, convicts take to the theatre” dated 22 June 2016

   (dd)An online article from Al Arabiya English titled “New image of Osama bin Laden’s spokesman and son-in-law in Iran revealed” dated 22 January 2018

   (ee)An online article from Aljazeera titled “A legacy of torture: Inside Lebanon’s Khiam jail” dated 14 August 2017

   (ff)An online article from Aljazeera titled “A legacy of torture: Inside Lebanon’s Khiam jail” dated 14 August 2017

   (gg)A report [assessing] the psychological functioning of the applicant dated 15 January 2018.

   (hh)Letter from Dr [C] dated 6 July 2020.

   (ii)Statement of Bar Syndicate of Tripoli dated 17 November 2020 and Lawyer Card [No] for [Mr B].

   (jj)Statement by [a named person] dated 23 November 2020.

   (kk)Statutory Declaration of [a named person] dated 22 November 2020.

   (ll)Statement by [a named organisation] dated 23 November 2020.

   (mm)Statement by [a named person] dated 25 November 2020.

   (nn)Statement by [a named mosque] dated 25 November 2020.

   (oo)Statutory Declaration of [name] dated 25 November 2020.

   (pp)Statutory Declaration of [name] dated 26 November 2020.

   (qq)Statutory Declaration of [name] dated 30 November 2020.

   (rr)Statement by [Chairperson] of [an organisation] dated 30 November 2020.

   (ss)Applicant’s statement dated 30 November 2020.

   (tt)Letter [dated] 1 December 2020.

   (uu)Article by LBC International Article dated 1 December 2020;  

Applicant’s evidence to the Tribunal

1. The applicant’s evidence at the hearing was that he was born on [date of birth] in [Akkar], Lebanon. The applicant’s evidence was that his father passed away. He stated that his father was [an occupation] and work for [a workplace]. His evidence was that his mother now lives in [City 1, Australia] and has done so since 2015. The applicant stated that he has [number siblings]. His evidence was that he has [brothers] and a sister living in [City 1] and [other] sisters who are married and continue to live in Lebanon. The applicant speaks reads and writes Arabic 

2. The applicant claims that was married in Lebanon [in] 2006 to [name] (‘the applicant’s wife’). The applicant’s wife was not in Australia at the time he made the protection visa application. He claims he was divorced in 2011.

3. The applicant’s protection visa application states that he attended [a school], Lebanon [year range]. However, the applicant’s evidence to the Tribunal was that he attended [a different] School and [a] Secondary School and attended [a] University in Tripoli where he studied [specified major]. The applicant claimed that when he finished university he worked [at] [a workplace] from1991 to 2000. 

4. In 1999 the applicant’s father passed away. His evidence was that in order to support his family, he took over his father position working for [the same workplace] as [an occupation] in or about 2000.

5. The applicant’s evidence was that in 2005 he went to jail for [number] months. He claims that he was helping people get a  [license]. Without his knowledge, the people he was dealing with [were] obtaining forged [licenses].

6. In his application the applicant claims that from 2005 to 2010 he was working [as] a clerical worker. However, his evidence to the Tribunal was that during this period he was not able to work due to war breaking out in 2006 and the fact he was in jail from [2007]. His evidence was that he was while he remained listed as a contract worker [he] did not work for the reasons explained. This is accepted by the Tribunal.

7. In or about 2005 the applicant came to Australia for a period of [number days]. After his visit he returned to Lebanon.

8. The applicant’s evidence to the Tribunal was that he sold [Item 1] for $US[amount]to a person known to the applicant as [Mr D]. The applicant claimed that he knew [Mr D] socially, having met him through a mutual friend and as a regular patron of his local [shop]. His evidence was that he had advertised [Item 1] for sale. As a result of their regular meetings [Mr D] came to know that the applicant wanted to the sell [Item 1]. As a result, [Mr D] offered to purchase [Item 1].  

9. The applicant’s evidence was that [Mr D] initially gave him a cheque for the purchase price of $[amount]. The applicant stated that he accepted the cheque from [Mr D] on the condition that it was not to be presented for payment for a period of two months. As a result, he handed over possession of [Item 1] to [Mr D] at the time of being given the cheque. Nevertheless, when the applicant presented the cheque for payment it was dishonoured by the bank.

10. The Tribunal asked the applicant why he gave possession of [Item 1] to [Mr D] in return for a cheque that cannot be presented for a period of two months. The applicant’s response to the Tribunal was that this was the way things are done in Lebanon.  He claimed that he trusted [Mr D] and that it did not occur to him that [Mr D] would cheat him out of the purchase price of [Item 1].

11. The applicant was not able to provide the Tribunal with any documentation, such as a copy of the cheque or bank statements, that indicated that he had received the cheque for [Item 1] as claimed. The applicant claimed that he no longer had any documentation in relation to [Item 1] as it had been taken from him by the police in Lebanon. 

12. The applicant’s evidence was that he attempted to contact [Mr D] about the cheque and payment for [Item 1] but [Mr D] never returned his phone calls. When asked by the Tribunal if he had attempted to visit [Mr D] for payment, he stated that he was informed by a friend, know to him as [a named person], the area in which [Mr D] lived, but he did not know his specific address. As a result, the applicant claims that he was not able to contact him and therefore he remained unpaid. The applicant’s evidence was that he did not report the matter to the police. The applicant’s evidence was that he was later informed that [Mr D] had stolen another [item] and had left the country.

13. The applicant claimed that [Mr D] had been part of an Islamic group, a fact the applicant claimed that he was not aware of. As a result, the applicant’s evidence was that as part of the police investigation into the group, due to his association with [Mr D], he was detained by the police and taken to jail.

14. The applicant’s evidence was that when he was released from jail, he had no money. As a result, he went to visit [Mr D]’s father and brother, [Mr A]), in Tripoli to try and recover some money for [Item 1]. The applicant’s evidence was that they refused to give him any money and told him that [Mr D] was out of the country. The applicant claims that he threatened to go to the police, but they still refused to give him any money.

15. The applicant however stated that he did make a complaint to the police and they visited [Mr A] in relation to [Mr D] and payment of [Item 1]. His evidence was that [Mr A] had promised the police that he would pay the applicant [Item 1]’s purchase price and signed a document promising to pay the applicant the purchase price of [Item 1]. The applicant did not provide a copy of the document to the Tribunal.  He stated that it had been provided to the prosecutor in Lebanon.

16. The applicant’s evidence was that [Mr A] had promised to pay him by [date] 2007 but failed to do so. As a result, the next day the applicant called [Mr A], but he did not answer. As a result, he attended [Mr A]’s shop, but it was closed. An associate known as [a named person] warned the applicant not to get involved with [Mr A] as he was involved in fighting the army in the Nahr al-Bared refugee camp near Tripoli. The applicant claimed that he was aware of the fighting but did not think that [Mr A] had been involved.

17. The applicant’s evidence was that he travelled from Tripoli to Beirut to see his parents. When he was at his parents’ home, he was contacted by a person who told him to go to the Lebanese intelligence [headquarters]. As a result, the applicant attended intelligence headquarters as ordered. The applicant’s evidence was that he remained at the headquarter all day without being interviewed or questioned. His evidence was that at about [a time] he was taken into an interview room where he was questioned about his alleged association with [Mr A]. The applicant claims that he told the officers conducting the interview that he had sold [Item 1] to [Mr D] and that he had contacted his brother [Mr A] in the hope of being able to recover the purchase price of [Item 1]. The applicant claims that he showed the security officers the documents evidencing the sale of [Item 1]. As a result, the applicant claims he was released. The Tribunal notes that in the statutory declaration he claims that he was released at [a time], that is prior to the time that he claimed that he commenced the interview with the security officers.  

18. The applicant’s evidence was that on [a specific day] he was contacted by a Lebanese intelligence officer, [and] was ordered to attend the Lebanese intelligence headquarters [and] ask for [a named person]. He claimed that he was told he would only be required for a short time. As such, on [date] May 2007 the applicant attended the intelligence headquarters in the afternoon but once again was not attended to until [a specified time]. His evidence was that after a while his belt was taken from him and he was hand cuffed and taken to a cell in the basement. The applicant’s evidence was that the cell had a small window, but he was not able to see outside.  The applicant was not able to say how long he was held in the basement. He had no watch and was not able to tell the time of the day.

19. The applicant’s evidence was that while he was held in the basement the intelligence officers would interrogate him and torture him by electrical shocks. He claimed that they wanted to know why he was contacting [Mr A]. He claimed that his hands and legs were tied, large piece of timber placed between his legs and he was hung by the legs and beaten. The applicant claims that he told them that he knew nothing.

20. The applicant was not able to say how long he was kept in the basement cell. However, in the statutory declaration he claimed that he had been held for 5 days before being transferred to [Prison 1] where he was held for the next [number] months. His evidence was that went to prison on [date] May 2007 and released on [date]. In jail the applicant was put in a room. His hair was shaven off. He claimed that he looked like he had been tortured.

21. The applicant stated that he was forced to sign a document before being transferred to the prison but was not able to say what it was. After signing the document, he was taken to a military investigator where an arrest warrant was issued. The applicant’s evidence was he was ordered not to change what he signed and was instructed to agree with the charges. The applicant asked for a lawyer. They took him back to the cell, tortured him and told him not to ask for anything else.

22. The applicant’s evidence was that he was released because there was no proof that he had done anything wrong. His evidence was that his parents had been to see [a named politician]. His brother asked him to intervene in his case. As a result, he investigated the applicant’s file and discovered that there was no case against the applicant and as a result was responsible for him being released. The applicant claimed that when he was released, he was angry because he had been in jail for [number] years for nothing.  

23. The applicant’s evidence was during his time in prison his wife left him. As a result, upon his release from prison, around the end of Ramadan, he travelled to Beirut to meet with her to try and reconcile with her. While the applicant was in Beirut, he received a call from a friend asking if he wanted to join the celebration for the end of Ramadan in his village. The applicant was living at home with his parents in the village.  As a result, on or about [date] September 2009 the applicant accepted the invitation and arranged to meet his friend in a local café in the village. When he arrived at the cafe, his friend was not there. He called his friend who claimed that because the applicant had not arrived on time he had left. Consequently, they arranged to meet the following day.  

24. The applicant’s evidence was that when he was returning home at about [a time] [in] September 2009 he discovered that was being followed by a person called [name], but known to the applicant at that time as [Mr E]. He claimed that [Mr E] was dressed in dark cloths and had a long beared. He asked [Mr E] what he wanted, upon which [Mr E] said, ‘don’t be scared.’ The applicant then heard a gunshot and was hit by a [bullet]. The applicant claimed that he felt the pain of the injury and became very confused. He proceeded to walk upstairs to his family’s flat to receive assistance. The applicant’s evidence was that he told his family that [Mr E]  had shot him in case he died. The applicant’s family called the police, but the police did not believe them and refused to attend. As a result, he called his brother-in-law, [who] arranged for a doctor to attend to him at home a result of which the applicant was taken to hospital.

25. The applicant claimed that he believed that [Mr E] was an informant to the Lebanese intelligence force. He claimed that [Mr E] has [brothers] in the Lebanese army and .had been involved in many incidents, including the applicant’s shooting but had never been arrested. The applicant’s evidence was that he had been told by acquaintances that [Mr E] had been arrested, but he did not believe this to be the case. Rather, the applicant’s evidence was that he believed the state security had sent [Mr E] to kill the applicant and tried to make it look like a revenge as a result of [Mr E]’s brother having been killed or alternatively because he had a disagreement with his cousins who had paid [Mr E] to kill the applicant.

26. The applicant claims in his statutory declaration that he continued to fear for his safety as monitoring by the Lebanese intelligence continued. Nevertheless, the applicant confirmed to the Tribunal that he did not experience any other incident from [September] 2009 until his departure for Australia in May 2010. His evidence was that he had kept a low profile.

27. The applicant confirmed to the Tribunal that he had not experienced any difficulty in obtaining his passport and had no difficulty in leaving the country. In addition, the applicant’s evidence was that he did not have a criminal record at the time of departing Lebanon.

28. The applicant claims that [on Date 1] the Lebanese Judicial Council made an order sentencing the applicant to death. The applicant claims that the order was made in his absence. The applicant provided a copy of the Lebanese Judicial Council order dated [Date 1] together with its translation.

29. The applicant claims that he was not aware of the order made by the Lebanese Judicial Council and only became aware of the order upon his brother-in-law calling him from Lebanon informing him of the order. The applicant was not able to explain why the order had been made, or why it had been made approximately five (5) years after he had been released from prison. He claimed that he believed the order was politically motivated. However, he was not able to give any reason why an order for the death penalty would be made against him in his absence.

30. Finally, the applicant claims that he has a [social media] account which he uses for political purposes. Despite claiming that he has no political affiliation, his evidence was that he uses that account to express his political opinions. His opinions include the need to get rid of illegitimate arms in the hands of legitimate forces in Lebanon. 

31. The applicant claims that he if he is returned to Lebanon, he will suffer serious or significant harm by reason that he will be killed or suffer further detention and human rights abuses. In addition, he fears that he will be arrested and will suffer the death penalty in accordance with the Lebanese Judicial Council order made [on Date 1].

32. Finally, the applicant claims that his life continues to be traumatised by his ordeal in prison and the attempt on his life. He claims to experience reoccurring nightmares and claims that his general health has deteriorated.  

THE COUNTRY INFORMATION

1. In assessing this decision, the Tribunal has considered the available country information. In particular, it has considered an earlier Department of Foreign Affairs and Trade Country   Information Report for Lebanon dated 19 March 2019 (‘DFAT Report’). The information in the DFAT report considered by the Tribunal included those parts of the DFAT Report detailed in Annexure ‘A’ of these reasons.  

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant will answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[17]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[18]

   [17] s.5AAA Migration Act 1958.

   [18]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[19] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [19]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482.

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[20] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

Accepted facts

[20]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

1. Based on the oral evidence provided at the hearing the Tribunal accepts and finds that:

   (a)The applicant was born on [date of birth] in [Akkar], Lebanon.

   (b)The applicant’s father has passed away.

   (c)The applicant’s mother has lived in [City 1], Australia since 2015.

   (d)The applicant has [number] siblings, [some of them] living in [City 1] and [some] sisters who are married and continue to live in Lebanon.

   (e)The applicant is a Sunni Muslim.

   (f)The applicant speaks reads and writes Arabic.

   (g)The applicant was married in Lebanon [in] 2006 to [his wife] and was divorced in 2011.

   (h)The applicant attended [schools] and attended [a] University in [Tripoli].

   (i)The applicant worked [at] [a workplace] from1991 to 2000. 

   (j)The applicant commences worked for [an employer] as [an occupation] in or about 2000.

   (k)The applicant went to jail in 2005 for [number] months.

   (l)The applicant was registered [as] a clerical worker but was not able to work due to war breaking out in 2006 and the fact, he was in jail from 2007 to [year].

   (m)The applicant visited Australia in or about 2005 for approximately [number days]. After his visit he returned to Lebanon.

Applicant’s Claim for Protection

The Judicial Council Order.

1. The applicant claims that upon his return to Lebanon he will be arrested by the Lebanese authorities, detained and face possible execution. The applicant provided a copy of the order made in absentia of the Judicial Council in Lebanon by which he was sentenced to death. The applicant maintains that although there is currently a moratorium on the death penalty in Lebanon, there still exists a real chance that he may be executed upon his return to Lebanon.

2. The DFAT report[21] states that Lebanon has not signed the Second Optional Protocol to the ICCPR on the Abolition of the Death Penalty. The Criminal Code in Lebanon allows the death penalty for eleven serious crimes, including murder, treason, espionage and terrorism. These crimes do not include drug related or sexual violence offences. The DFAT report notes that executions are carried out by hanging for civilian crimes and firing squad for sentences handed down by military courts. It isreported that death sentences require the approval of all three of the President, Prime Minister and Justice Minister. The President has the power to grant clemency.[22]

   [21] DFAT Report @ p.33

   [22] ibid

1. The DFAT report[23] also notes that Lebanon has maintained an unofficial moratorium on executions since 1998, with the exception of three simultaneous executions of individuals convicted of multiple murders in 2004. It is reported that senior officials, including the interior minister in 2017, have from time to time called for the resumption of executions. There is no suggestion that Lebanon is planning to end its unofficial moratorium. Nevertheless, it is reported that Judges continue to hand down death sentences. The DFAT report states that in 2017, twelve (12) people were sentenced to death while in 2016, 126 Lebanese and Syrians were sentenced to death for terrorism related offences and for crimes committed against the military.[24]

   [23] ibid

   [24] ibid

2. The Order of the Judicial Council[25] (the Order) provided by the applicant refers to the applicant having been ‘adversarially arrested [in] September 2007 and released [date].’ The Order states[26] that the applicant together with [two named people] engaged in conspiring against the state national security, [details deleted]. In addition, the Order states that the preliminary and interrogative investigations together with all papers were read and made available for public discussion.

   [25] AAT File 1506898 @ f.71

   [26] Op Cit @ f.70

3. In relation to the applicant the Order[27] states that upon hearing the testimony of the applicant before the Information Division, pursuant to the record dated [date] May 2007, the applicant testified that he had a relationship with [Mr A] and his brother [Mr D]. The Order states that:

   [27] Op Cit @ f.70

   (a)in relation to [Mr A] his relationship was based on a loan [Mr A] owed him and which [Mr A]’s father [had] promised to pay.

   (b)the applicant also testifies that he provided weapons to Fath El Islam and committed fraud.  

   (c)the applicant met [Mr D] in 2004. In 2006 he was directed at the request of [Mr A] and [Mr F] to the ‘so-called [a named person], in order to sell him [goods]’ (‘the transaction’).[28]

   [28] ibid

   (d)the transaction did not occur as the [goods] was fake [which] the applicant claimed to be [real]. The applicant claimed that he and [Mr A] had presented it to a [professional] and found it to be worthless.[29]

   [29] Op Cit f.69

   (e)[Mr A] told the applicant that he had [weapons] and asked him to help sell them to a person known as [Mr G] . However, the deal did not go through as the two parties disagreed on the price and on how to transport the [weapons].[30]

   [30] ibid

   (f)[Mr A] asked the applicant to ‘mediate’ with [Mr G] to purchase heavy weapons such as [specified]. However, the deal was not completed as ‘[Mr G] needed time to get from different sources.’ [Mr A] promised him a share of the profits if the deal went through.[31]

   [31] ibid

   (g)[Mr A] asked the applicant if he knew anyone who could forge a passport. As a result, the applicant advised [Mr A] that he knew [Mr G]’ who could forge the documents for AUD[amount] per passport.

   (h)the applicant produced [number of passports] for [Mr A] in return for which he received AUD[amount] per passport.[32]

   (i)The applicant also provided a Lebanese passport to [Mr F] in return for $[amount].[33]

   (j)The applicant provided two (2) additional Lebanese passports to [Mr A] in return for $[amount].[34] The applicant also attempted to arrange a further passport and received $[amount] each but could not produce them.[35]

   (k)The applicant produced two forged  [licences] in return for $[amount] each and a forged ID card but destroyed it due to its poor quality.[36]

   (l)The applicant purchased a [weapon] [for] [Mr D] for $[amount] and stated that he obtained the weapon and forged documents form [Mr G] .[37]

   (m)[A named person] testified that he had lost the three passports arranged by the applicant at [Mr A]’s request.[38]  

   (n)[Mr F] testified that he received a forged Lebanese passport from the applicant for $[amount].

   (o)The applicant was interrogated by the military investigation Judge [in] June 2007 at which time he withdrew his testimony claiming that he had been hit and tortured. He stated that he sold [Mr D] and [Mr A] a [Item 1] for $[amount]. He stated that they paid by cheque, but it turned out to be a dud.  As a result, he filed a lawsuit against them, unknown to him they were members of Fath El Islam.[39]

   (p)The applicant explained that [Mr A] and [Mr D] asked him buy weapons for them, but he did not as they had not lent him the money to buy the weapons.[40]

   (q)The applicant stated to the  judicial investigator [in] September 2007 that there was no truth in what had been attributed to him and withdrew his initial testimony as well as the one given by him before the military investigation judge claiming that he made the testimony only because he had been beaten.[41]

   [32] ibid

   [33] ibid

   [34] ibid

   [35] ibid

   [36] ibid

   [37] ibid

   [38] ibid

   [39] ibid

   [40] ibid

   [41] ibid

4. Based on the evidence before it the Judicial Council found that:[42]

   (a)The applicant was in contact with the terrorist organisation ‘Fath El Islam’ and met with members, leaders and key figures of the group. In addition, it found that the applicant attempted to sell [specified materials] on behalf of [Mr A] and [Mr D], both of who were members of the organisation. 

   (b)That the applicant’s actions were in breach of [specified law].[43]  

   (c)That the applicant was involved in forgery of passports and Lebanese ID in breach of [specified law].

   (d)The applicant was found not guilty, on the basis that there was not enough evidence, of using a [forger].

   (e)The applicant was found guilty of having engaged in the provisions of various weapons on behalf of the terrorist group Fath El [Islam].

   [42] Op Cit @ f.67

   [43] ibid

5. As a result, [on date] the Judicial Council, in absentia, unanimously ruled to convict the applicant and his co-accused and order that they be sentenced to death  and that they be deprived of their civil rights and prevent them from disposing of their movable and immovable property.[44]

   [44] Op Cit @ f.66

6. An article dated [Date 1] refers to [a person] being tried in absentia by the Judicial Council. The applicant’s evidence was that despite the different spelling of his surname, the article was referring to him.  The article stated that the applicant was accused of ‘[details deleted].’ The article states that the applicant was accused of ‘[details deleted].’

7. The applicant maintains that the Order of the Judicial Council is legitimate, and that the translation provided to the Tribunal is a proper translation of the order.  The Tribunal notes that the applicant provided an authority dated [date] January 2015 to the Department giving permission to make any enquires with the Lebanese Judicial Council as to the legitimacy of the court orders. There is no evidence to suggest that the order is not legitimate as claimed.  As such, the Tribunal accepts that the order of the Judicial Council is legitimate, and that the applicant was sentenced to death by the Judicial council as claimed.

8. The Tribunal accepts that Lebanon has maintained an unofficial moratorium on executions since 1998. However, it notes that there have been exceptions to the moratorium with officials calling for its end from time to time. As such, it’s likely that an end to the unofficial moratorium could be made at any time and at the sole discretion of the government of the day.  As a result, the Tribunal accepts that there is a real risk that the applicant will be significantly harmed if he is returned to Lebanon by reason of the Order.

The applicant’s evidence

1. However, having accepted the legitimacy of the Order, the Tribunal has had some difficulty with the applicant’s evidence. The applicant denies that he is guilty of any of the charges made against him by the Judicial Council. He specifically denies that he was involved in the purchase of any weapons or materials for explosives or the supply of false passports and licences as alleged by the Judicial Council.

2. In circumstances where the applicant has been convicted of supplying false passports and licences, the Tribunal notes that the applicant has had a history of being convicted for the supply of false licenses. Nevertheless, the Tribunal acknowledges and accepts that any previous conviction does not mean the applicant is guilty of supplying false passport and licenses as alleged by the Judicial Council.  

3. The applicant’s evidence before the Tribunal was that he sold [Item 1] to [Mr D] who had paid for it with a cheque that bounced. He claimed that as a result of having made a complaint to the police, [Mr A] promised to pay him the purchase price of [Item 1] but failed to do so. During the hearing, the Tribunal put to the applicant that his evidence was different to the evidence he gave to the Department and the previous Tribunal. The applicant’s evidence to the Department and by his statutory declaration dated 18 May 2010 (‘the statutory declaration’),[45] was that he sold [Item 1] to [Mr A], rather than [Mr D], and that [Mr A] partly paid him the purchase price and promised to pay the balance in two days.[46] In response the applicant repeated and confirmed that he sold [Item 1] to [Mr D] and not [Mr A]. In addition, he repeated that he had received a cheque from [Mr D] for the total purchase price which was dishonoured. In addition, he confirmed his evidence that because [Mr D] was missing, he went to [Mr A] for payment of the purchase price of [Item 1].  The applicant claimed that the statutory deceleration was prepared by his previous agent and was incorrect. He claimed that at the time of swearing the statutory declaration he was not provided an interpreter and was not given an opportunity of checking its contents. As such, he stated that the details in relation to the sale of [Item 1] in the statutory declaration were incorrect. Nevertheless, the applicant’s evidence to the delegate was that he had sold [Item 1] to [Mr D] but, because [Mr D] had gone missing, had gone to [Mr A] to get paid. He stated to the delegate that [Mr A] had given him a little bit of money but had stopped paying before full payment had been received.[47]

   [45] Applicants statutory declaration dated 18 May 2020; Department [file], Doc ID7090628.

   [46] Op CIt @ paras 10 & 11

   [47] Delegates decision @ p.8; AAT File 156898 @ f.4

4. Despite the applicant’s contradictory evidence in relation to the sale of [Item 1], the Tribunal accepts that the applicant sold [Item 1] as claimed and that he was not paid the purchase price. As a result, it accepts that the applicant contacted [Mr A] on several occasions as claimed for the purposes of obtaining payment for [Item 1].

5. However, the applicant states that there is no truth to the allegation that he arranged fake passports and licenses or that he was involve in the purchase of any weapons as alleged by the Judicial Council. He conceded to the Tribunal that during the police interview he had made admissions in relation to this involvement with [Mr D] and [Mr A] concerning the purchase of weapons but said that he only did so under duress and in circumstance where he had been tortured. The applicant stated that he was forced to sign a document before being transferred to the prison but was not able to say what it was. After signing the document, he was taken to a military investigator where an arrest warrant was issued. He claims that he latter denied all involvement with [Mr D] and [Mr A] (other than the sale of [Item 1] which he maintains). The Judicial Council refers to the fact that [in] September 2007 the applicant testified to the judicial investigator and withdrew his initial testimony and his testimony given to the military investigation Judge [in] June 2007.

6. The applicant was placed in [Prison 1] without being charged and without being convicted of any crime for approximately [number] years. Based on the available country information and the applicant’s own evidence, the Tribunal accepts that the conditions in the prison are ‘cruel and inhuman.’[48]  The applicant claims that he was released with the help of [Mr B].  A statement has been provided by [Mr B][49] stating that the applicant was released from prison because he was not guilty of the terror crime attributed to him. As such, [Mr B]’s statement does not appear consistent with the applicant’s evidence that he was not charged with any offence. In any event [Mr B] does not detail the terror crime for which he claims the applicant was not guilty.  Nevertheless, the statutory declaration by the applicant’s brother dated [date] November 2020 states that [a named person] and not [Mr B], appeared in court for the applicant to secure his release on the basis that he had not been charged with any offence.[50] No statement has been provided by [this person].

   [48] Dr Walid Abdulrahim Professor of Law, ‘The State of Prisons in Lebanon, A disgrace and dark record of Lebanon in the field of human rights.’ AAT file No1506898 @ f.204

   [49] [file number deleted] @ f.63

   [50] Statutory Declaration [dated] 30 November 2020.

7. By a letter dated 6 July 2020 to the Tribunal Dr [C][51] a Lebanese Defence lawyer states that the Lebanese’s authorities are hypocritical in their approach to terrorism. He claims that the government targets what it perceives as terrorism and not others. He also claims amongst other things that there is ‘no fair trial in the military court or the judicial council. Dr [C] did not provide any specific examples of how a person may not receive a fair trial. In addition, he did not specifically deal with the circumstances of the applicant. Nevertheless, the observations of Dr [C] may provide some explanation as to why the applicant was released from prison only to be charged and convicted in absentia by the Judicial Council.

   [51] Letter dated 6 July 2020 by Dr [C]

8. Based on the applicant’s evidence, and in the absence of any contrary evidence, the Tribunal accepts that he was held in [Prison 1] without being charged as claimed for a period of approximately [number] years.

9. While the Tribunal accepts that the legal process in Lebanon is not be as fair and transparent as in Australia or other western countries, the applicant is nevertheless asking this Tribunal not to accept the findings of the Judicial Council in Lebanon based on his own denial of Judicial Council findings and orders. It is not the role of this Tribunal to assess the guilt or innocence of the applicant in relation to the crimes he has been tried and convicted or to second guess the findings of another court or Tribunal. The Tribunal’s role is merely to assess if the applicant is owed protection under s.36(2)(a) and s36(2)(aa) of the Act. In any event, in circumstances where the Tribunal has not been provided the evidence presented to the Judicial Council it is difficult and inappropriate for the Tribunal to make any findings in relation to the veracity of the Order by the Judicial Council.

10. The Tribunal notes that the applicant was legally represented in relation to his release from prison. In addition, a statement by Mr [Mr B] indicates that he was the applicant’s representative at the criminal proceeding before the Judicial Council.[52] Notwithstanding the fact that the applicant appears to have been represented before the Judicial Council, no attempt has been made to present the evidence before the Judicial Council to the Tribunal. In addition, there appears to have been no attempt by the applicant to have made application to the Judicial Council to challenge its findings and the Order made in absentia.

    [52] Statement [translated] 23 November 2016; AAT File No 1506898 @ f.58

11. The applicant has provided several statutory declarations attesting to his good character and nature. These are accepted by the Tribunal. However, they do not give any probative evidence as to whether the applicant committed the offences for which he has been charged and convicted in Lebanon. The applicant’s own evidence merely amounts to a denial of the charges and a claim that he sold [Item 1] to [Mr D] and [Mr A] for which he was not paid. Notwithstanding that this is accepted by the Tribunal, the specific details of the applicant’s evidence has changed over time. There is nothing in the applicant’s evidence (save for his denial) that conclusively contradicts the evidence presented to the Judicial Council and as outlined in its order. In addition, there is no independent evidence that contradicts the evidence outlined by the Judicial Council. The applicant claims that he informed the military judge that he was forced to sign a confession. The Tribunal accepts the country evidence that states that detainees are often forced to sign confessions. However, from the Order the applicant’s retraction of his previous evidence appears to have been considered by the Judicial Council.   In such circumstances the Tribunal is not able to contradict the findings of the Judicial Council and as such has concerns about the applicant’s evidence in relation to his involvement with [Mr D] and [Mr A]. 

Applicants shooting

1. The applicant’s evidence was that he was shot in [Body Part 1] by person known to him as [Mr E] while returning home late at night [in] September 2009. The applicant claims that despite calling the police they did not respond.  However, the delegate refers to the documents supplied by the applicant in his first application for protection showing that the accused person was sentenced to six months prison. When this information is put to the applicant by the delegate, he insisted that he was shot, and the police did not respond as claimed. [53] The applicant’s evidence to the Tribunal was that his brother-in-law, [arranged] a Doctor and for him to attend hospital. While the applicant pointed to scaring on his [Body Part 1] as evidence of the shooting, no independent evidence was received by the Tribunal in relation to the shooting, including from his brother in law. In addition, no medical evidence was received in relation to his injury.

   [53] Delegates decision @ p.6; AAT File 156898 @ f.5

2. The applicant’s evidence to the Tribunal was that [Mr E]’s brother had been killed during the battle at Nahar El Bared. His evidence was that he believed that the state security had sent [Mr E] to kill him and tried to make it look like a revenge as a result of [Mr E]’s brother having been killed in the or alternatively because he had a disagreement with his cousins who had paid [Mr E] to kill the applicant. However, the applicant’s evidence was that he was not involved in political activities or with any extremist group. If this is correct, then there would be no logical reason for applicant to have been targeted as claimed. In addition, there would have been no logical reason for him to have targeted as a result of seeking payment for [Item 1] in circumstances where his claim was not unreasonable or excessive. However, if the applicant had been involved in the activities with members of an extremist group as outlined by the Judicial Council, then the circumstances of the applicant’s shooting becomes more plausible and realistic and as such the Tribunal is more likely to accept that it did occur.

3. Therefore, having accepted that the order of the Judicial Council is legitimate and in light of the applicant’s insistence that he had been shot as claimed, which the Tribunal accepts, the Tribunal is of the view that it is more likely that the applicant did have some involvement with members of an extremist organisation as outlined in the Judicial Councils order.   

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Lebanon and the Tribunal therefore finds that Lebanon is the ‘receiving country’ for these purposes.

1. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. Section 36(2)(aa) requires that the risk of harm to the applicant be a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon. The necessary and foreseeable consequence element of s.36(2)(aa) attaches to the risk of harm rather than the actual occurrence of harm. In this case the applicant is the subject of an order for the death penalty. For the reasons set out above, the Tribunal is satisfied that the Order is legitimate and that he will be subjected to the death penalty, torture and cruel and inhuman punishment if he is returned to Lebanon. While there currently exists a moratorium on carrying out the death penalty in Lebanon, the Tribunal is satisfied that in the event the applicant is returned to Lebanon there are reasonable grounds for believing that as a necessary and foreseeable consequence of being removed for Australia to Lebanon the applicant will suffer significant harm. That is, he will be detained (in which there is a real risk he will be tortured and subjected to cruel and inhuman behaviour) and subjected to the death penalty.

2. The definition of ‘significant harm’ under complementary protection requires an element of intent. That is, an act or omission by which the significant harm (deprivation of life, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment) is intentionally inflicted upon a person for a specified purpose or reason. That is intent requires an actual, subjective, intention on the part of a person to bring about the applicant’s suffering by their conduct.[54] The Tribunal is satisfied that the order by the Judicial Council of Lebanon satisfies the necessary intent to cause the applicant significant harm.

   [54]  SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.

3. In this case, having accepted that the Judicial Councils order as legitimate and for the reasons expressed above, the Tribunal has considerable difficulty in accepting that the applicant’s evidence that he was not involved with members of an extremist group. Accordingly, the Tribunal has accepted the applicant’s evidence in relation to the claimed threats but not accepted his evidence that he was completely innocent of the charges for which he was charged.

4. Therefore in circumstances where the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm, he may be ineligible for a protection visa by operation of s.36(2C). Section 36(2C) provides that an applicant is taken not to satisfy the criterion in s.36(2)(aa) where the Minister has serious reasons for considering that they have committed a war crime, crime against peace, crime against humanity or an act contrary to the purposes and principle of the United Nations. A person will also be taken not to satisfy s.36(2)(aa) if the Minister considers, on reasonable grounds, that they are a danger to Australia’s security or the Australian community (having been convicted by final judgment of a particularly serious crime). However, the Migration and Refugee Division of this Tribunal, considering an application under Part 7 of the Act, has no power to determine s.36(2C) issues.[55]

   [55] s.411(c) and (d) of the Act.

5. At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

6. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds 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 he will suffer significant harm as required by s36(2)(aa). The Tribunal therefore finds that Australia does not owe him any protection obligations pursuant to s.36(2)(aa) of the Act.

CONCLUSIONS

1. The Tribunal finds that there are 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 the applicant will suffer significant harm.

2. The Tribunal notes that the material before it may give rise to issues relating to s.36(2C) of the Act. The Migration and Refugee Division of this Tribunal has no power to consider s.36(2C) issues. Accordingly, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is ineligible for the grant of a protection visa by s.36(2C).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant s.36(2)(aa) of the Migration Act.

Jason Pennell
Senior Member