2010192 (Refugee)

Case [2021] AATA 1044

2010192 (Refugee) [2021] AATA 1044 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010192

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Jane Marquard

DATE:29 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 March 2021 at 10:55am

CATCHWORDS

REFUGEE – protection visa – Lebanon – Federal Circuit Court remittal – extensive criminal records – part of a Sunni militia group – fears harm from the Salafis and Shi’a/Allawis – converted to Christianity – admitting to false claims – sexual orientation –homosexual man – had difficulty in acknowledging and revealing sexual orientation – effective protection not available – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 36, 65, 73, 379, 417, 423, 438, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan(1996) 40 ALD 445
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

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. The applicant is a [age]-year-old man who was born in [City 1] in North Governorate, Lebanon. He lived primarily in Tripoli prior to travelling to Australia.

  2. He first arrived in Australia on a Sponsored Family Visitor visa [in] November 2006. Since then he has returned to Lebanon and then travelled back to Australia twice. The most recent entry into Australia was [in] May 2012 on a Bridging visa B associated with his Partner (Provisional) (309) visa. A detailed summary of his migration history is set out later in this decision.

  3. The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 30 April 2015.

  4. The Department of Home Affairs (the Department) refused the visa on 9 July 2015.

  5. The applicant applied for review of the decision dated 9 July 2015 to the Administrative Appeals Tribunal (Tribunal).

  6. On 15 September 2015 the Tribunal differently constituted (referred to in this decision as the First Tribunal) affirmed the decision of the Department (the First Tribunal Decision).

  7. [In] August 2017 the Federal Circuit Court of Australia ordered by consent that the decision of 15 September 2015 be quashed and the matter be remitted for reconsideration.

  8. On 29 March 2019 the Tribunal differently constituted (the Second Tribunal) again affirmed the decision of the Department (the Second Tribunal Decision).

  9. [In] June 2020 the Federal Circuit Court ordered by consent…

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2010192 (Refugee) [2021] AATA 1044
Case
[2021] AATA 1044
Decision Date

CaseChat Overview and Summary

The applicant, who arrived in Australia on multiple occasions between 2006 and 2015, sought a protection visa. His claims for protection were based on fears of harm from Salafi, Shi'a, and Allawi militia groups in Lebanon, stemming from his alleged involvement with a Sunni militia and subsequent conversion to Christianity. He also later raised concerns about his homosexual orientation. The matter came before the Federal Circuit Court of Australia, which, by consent, quashed a previous decision of the Migration Review Tribunal and remitted the case for reconsideration due to a denial of procedural fairness.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) or, alternatively, whether there were substantial grounds for believing that he would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia, pursuant to section 36(2)(aa). This involved assessing the credibility of his claims regarding his past involvement with militia groups, his conversion to Christianity, and his fears of persecution in Lebanon, as well as his claims concerning his sexual orientation.

The Tribunal was required to consider all evidence presented to previous iterations of the Tribunal and the Department, as well as new evidence. It noted that a previous Tribunal had found the applicant's claims not to be credible, including his involvement in sectarian violence, his alleged kidnapping and torture, and his conversion to Christianity. However, the current Tribunal also had to consider the applicant's stated difficulties in acknowledging and revealing his homosexual orientation due to fears of mockery and reprisal within immigration detention. The Tribunal was obliged to determine the review based on the facts as they presented at the time of its determination, having regard to the principles of refugee and complementary protection.

The decision under review was remitted for reconsideration by the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In conducting the review, the Tribunal has considered the material provided to the First and Second Tribunal differently constituted, and the oral evidence given at the First Tribunal hearing, as well as evidence given to this Tribunal. BACKGROUND Migration history Departmental records indicate that the applicant arrived in Australia on the first occasion on [date] November 2006 on a Sponsored Family Visitor visa. [In] February 2007 he returned to Lebanon. The applicant arrived in Australia on the second occasion [in] February 2009 on a Prospective Marriage visa. [In] April 2009 he was married in Australia. In May 2009 the marriage broke down amidst family violence claims against his wife. [In] July 2009 the applicant applied for a Combined Partner visa on family violence grounds. [In] August 2010 he divorced his first wife. On 11 February 2011 he was refused the grant of a Subclass 820 (Partner-Temporary) visa. On 5 April 2012 the Migration Review Tribunal affirmed this decision. [In] April 2012 the applicant married his second wife. [In] May 2012 he returned to Lebanon. On 21 May 2012 he applied offshore for a Partner (Provisional) visa (Subclass 309). [In] May 2012 he arrived in Australia on a bridging visa associated with his partner visa application. [In] September 2012 the Federal Magistrates Court dismissed his judicial review application. On 19 October 2012 his bridging visa ceased and he remained in Australia unlawfully. On 2 January 2013 he requested ministerial intervention but the Department found it was inappropriate to consider this. [In] November 2013 he was taken into immigration detention. On 16 December 2013 he was granted a bridging visa. On 11 June 2014 he was refused the grant of a Subclass 309 visa. On 7 October 2014 he was refused the grant of a Subclass 801 visa. On 3 February 2015 his bridging visa ceased. [In] March 2015 he was again taken into immigration detention. On 30 April 2015 he applied for this protection visa. On 6 May 2015 he was refused the grant of an associated bridging visa. The Department refused the application for protection on 30 April 2015. This Tribunal, differently constituted affirmed the decision on 15 September 2015 (First Tribunal Decision). He applied for ministerial intervention under s.417 of the Act on 22 September 2015. He referred to the fact that he and his partner [Ms A] had a son [who] was [age]. On 11 January 2016 the Department advised the applicant that it would not be in the public interest to intervene in his case. [In] August 2017 the Federal Circuit Court of Australia ordered by consent that the decision of 15 September 2015 (First Tribunal Decision) be quashed and the matter be remitted for reconsideration by the Tribunal. The orders were made on the basis that the Tribunal denied the first applicant procedural fairness, a jurisdictional error of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183. The court found that the existence of a Certificate pursuant to s.438 of the Act was not disclosed to the applicant and information or some information in the Certificate was relevant to the issues arising on the review.

Evidence

Evidence Before The Court

He was also the subject of a Temporary Protection Order made [in] May 2015 prohibiting him from contacting his former partner and her two children and her relative.CLAIMS AND EVIDENCE IN THIS REVIEWSummary of evidence before the Department The applicant made claims and provided information in his application forms and supporting documents. The applicant also provided evidence at an interview with the Department on 4 June 2015. A summary of his evidence follows.Personal details The applicant claimed that he was of Arabic descent, and his religion was ‘Muslim Sunni (Convert Christian)’. He said that his parents and four brothers are living in Lebanon. The applicant completed secondary school in [Tripoli] in [year].Claims in his application form The applicant claimed that he was part of a Sunni militia group in 2008 and he had to leave the group and flee Lebanon as he feared for his life. He said that after he left the group, he received information that his life was in danger so he fled to a family friend’s home on the other side of town. He also claimed that in 2012 when he returned to Lebanon to comply with arrangements for his partner visa he was kidnapped on the second day by a group of Alawi. He said that he was tortured and bashed but managed to escape two days later and hid at his ‘auntie’s house’ in Beirut until his departure. He did not seek help from authorities as they are powerless and controlled by militia. He said that he feared if he returned that he would be executed by the opposition group (Shi’a and Allawi) and also for leaving the Sunni group which was seen as a betrayal.Life in Australia The applicant stated that he has two uncles living in Australia who are Australian citizens. From 2010 to October 2014 he worked as a [Occupation 1] in Australia. He was convicted of offences in Australia. He claimed that he has returned to Lebanon once since he has been in Australia as his mother was sick. He was in a relationship with [Ms A] .Elaboration on his claims in his protection visa interview on 4 June 2015 The applicant said that he fears harm from the Salafis and the Shi’a/Allawis. The applicant said that he finished school in [year] and then underwent compulsory military service in Lebanon but escaped in the first week and was imprisoned for 15 days. He said that he had to pay a bribe to get released. He said that he had no ongoing problems because of this. He was not employed in Lebanon and was financially supported by his mother and grandfather. The Sunni militia group he was involved with were the Salafis, based in [an] area of Tripoli. In 2008 there was a civil war between the Sunnis [and] the Allawi/Shi’as in Jabal Mohsen. He said that everyone was fighting and he joined the Sunnis for three to four months. He had first aid training in school so provided first aid. He was also ‘quite involved’ in fighting on more than two occasions. He said that one day he decided to come forward and join the fighting. He was given 10 to 15 minutes training in how to fire an AK47. He took up a position behind a brick wall and shot for 5 to 10 minutes towards a building where the enemy was located. Then his shoulder became sore and he realised that he did not like shooting. He does not think he is capable of killing someone. He left the AK47 on a brick and walked away.

Decision

Reasons for decision

In reaching this finding, the First Tribunal took into account the six-year delay in applying for the protection visa and inconsistencies in his evidence and with country information.Second Tribunal (differently constituted) decision 29 March 2019 The Second Tribunal differently constituted was satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act, however the applicant did not appear at the scheduled hearing. The Second Tribunal made a decision on the review based on the information available to it without a hearing. On the basis of the First Tribunal’s decision dated 15 September 2015 the Second Tribunal differently constituted found that the applicant did not give credible information to the First Tribunal about his claims. The Second Tribunal did not accept that the applicant was part of a militia group of any kind or at any time in Lebanon or was ever involved in sectarian violence in Lebanon at all, including fighting against Alawites or Shi’as in Lebanon. The Second Tribunal did not accept that the applicant was ever kidnapped or tortured at any time when he was in Lebanon including in May 2012. The Second Tribunal did not accept that the applicant has an existing adverse profile with any Salafi/Sunni, Allawi or Shi’a militia group in Lebanon for reason of any actual or perceived association he has with a Salafi/Sunni group. The Second Tribunal did not accept that the applicant is a Christian convert. The Second Tribunal was not satisfied therefore that the applicant met the refugee or complementary protection criteria. Evidence before this Tribunal A summary of the evidence provided in written submissions and at the Tribunal hearings on 19 February 2021 and 11 March 2021 follows.Concerns about confidentiality and speaking about his sexuality The applicant stated in written submissions to the Tribunal that at the immigration detention centre where he currently resides ‘I regularly hear the guards and other people detained here making fun of gay people. They think we are a joke and it makes me feel very isolated and unsafe.’ He said that ‘It is also very difficult to speak to my lawyer about all of this as it is hard to find private spaces in detention and so my ability to speak about my sexuality is also limited because of this as I often feel uncomfortable. Also, I won’t be able to talk about this if any of the guards can hear me. I have been told that there will not be anyone else in the room with me for my hearing, however I still feel nervous about speaking about my personal things in front of the guards. I have heard some of the guards make bad comments about gay men and so they make me nervous. I often hear people calling people names that are against gay people and I wonder, ‘do they know? Are they talking about me?’. I tried to tell them once, about my sexuality, but they made fun of me and so I pretended like I was joking.’ The Tribunal informed the applicant that staff of the [Immigration] Detention Centre had confirmed to Tribunal staff that the hearing was being held in a private room and the applicant would not be overheard. The applicant confirmed at the hearing that he believed he could not be overheard in the room.Health issues

Ratio Decidendi

Legal Principle Established

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 there are 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 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.What information can be considered on remittal? Where a direction is given to reconstitute the Tribunal, as in this case, the Administrative Appeals Tribunal Act1975 (Cth) requires the reconstituted Tribunal to continue the proceeding. In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted. This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where a Refugee Review Tribunal decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal has before it the material that was before the Department, the First Tribunal and the Second Tribunal and is obliged to continue and complete the particular review and not to commence a new review. In conducting the review, the Tribunal has considered the material provided to the First and Second Tribunal differently constituted, and the oral evidence given at the First Tribunal hearing, as well as evidence given to this Tribunal. BACKGROUND Migration history Departmental records indicate that the applicant arrived in Australia on the first occasion on [date] November 2006 on a Sponsored Family Visitor visa. [In] February 2007 he returned to Lebanon. The applicant arrived in Australia on the second occasion [in] February 2009 on a Prospective Marriage visa. [In] April 2009 he was married in Australia. In May 2009 the marriage broke down amidst family violence claims against his wife. [In] July 2009 the applicant applied for a Combined Partner visa on family violence grounds. [In] August 2010 he divorced his first wife.