2010192 (Refugee)

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

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.
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.
The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 30 April 2015.
The Department of Home Affairs (the Department) refused the visa on 9 July 2015.
The applicant applied for review of the decision dated 9 July 2015 to the Administrative Appeals Tribunal (Tribunal).
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).
[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.
On 29 March 2019 the Tribunal differently constituted (the Second Tribunal) again affirmed the decision of the Department (the Second Tribunal Decision).
[In] June 2020 the Federal Circuit Court ordered by consent that the decision of 29 March 2019 be quashed and the matter be reconsidered by the Tribunal.
The matter is now before this Tribunal for reconsideration pursuant to the order of the Court.
The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm. More details of the criteria and other relevant legal principles are set out below.
RELEVANT LAW AND PRINCIPLES OF REVIEW
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, 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.
Refugee criterion
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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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–5LA, which are extracted in the attachment to this decision.
Complementary protection criterion
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.
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.
On 29 March 2019 the Tribunal differently constituted affirmed the decision under review (Second Tribunal Decision).
[In] June 2020 the Federal Circuit Court ordered by consent that the decision of 29 March 2019 be quashed and the matter be reconsidered by the Tribunal. The basis for this order was that the Tribunal fell into jurisdictional error by adopting the views of a differently constituted Tribunal about the applicant and therefore failed to discharge its statutory task, pursuant to MZZZW v Minister for Immigration and Border Protection (2015) 234 FCR 154.
The matter is now before this Tribunal.
Criminal history
According to the Ministerial Intervention Response dated 11 January 2016, an Australian Federal Police check revealed that the applicant had 27 criminal convictions between [November] 2013 and [May] 2015, involving possession of drugs, firearms, weapons, theft, escape from custody and driving-related offences. Records also show that he has extensive criminal records up to 2019. In his most recent conviction, [in] January 2019 he was convicted of a number of offences including possess/use/carry prohibited weapon, reckless conduct endangering serious injury and failure to render assistance after accident.
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 REVIEW
Summary 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.
He said that on other occasions he was involved with fist and knife fights with Allawis and Shi’as. Sometimes they would appear out of nowhere in the streets. He did not hold a knife. On one occasion [they] went to have coffee, and saw some Allawis and straight away they got in a fight and he was stabbed in the back and went to hospital. He would try and obtain documents. The authorities were ‘sort of’ involved in that they would support whoever paid them more.
He left the Sunni group because the supervisor told him to fight with guns. He told the supervisor he could bash people but not kill and that he had tried to shoot. The supervisor was angry so the applicant left as he did not want to hold a gun. He hid in the mountains in a [town] called [name] with a friend from school who said he could stay there, until he left for Australia.
He feared that he would be hunted, tortured or killed because he betrayed the militia group by leaving them.
He returned to Lebanon in 2012 to apply for a visa offshore. He also wanted to give it a shot and see his family. The first place he went to was his friend’s house in [south] of Tripoli. He was kidnapped from there and thinks his friend gave his location away as he watched when 10 people took him away. He had a black bag over his head and was taken to the second floor of a building. He was bashed and tortured with a Taser. His captors said that he was the enemy and asked him where he had been. They said they would kill him. When they left the room he pulled his hands free from the plastic handcuffs and ran out. He was chased but they could not get him in the street. He recognised that he was in [a district not far] from Tripoli. He hailed a taxi and his aunt then picked him up and took him to Beirut. He did not go to the hospital or police as he was scared. He hid in his aunt’s place after that until he came to Australia.
He did not apply for protection earlier as he had applied for a partner visa. He was now divorced. He asked his wife to withdraw the partner visa application but she did not do it.
His former wife got him hooked on the drug ice. He became useless and forgot about everything and he became unlawful.
He had not mentioned his problems in Lebanon to the Department in interactions with them as no-one told him to do so.
His mother told him that in October 2014 the Shi’as/Allawis had come to his town with a list. They knocked on her door and asked about him. She told them he is away. There had been no further threats.
He said that the Shi’as run the country and his name is on the list so he will be taken from the airport.
He converted to Christianity when he married [Ms B] in 2012. He was not baptised but went to the [Church] in [Suburb 1]. He converted because of his experiences in Lebanon. He hated the Sunni religion and Christianity was ‘nice’. He preferred not to state his denomination. He thinks Jesus is the son of God but does not believe Jesus is on the cross. He would continue to practise in Lebanon.
The Department put to the applicant that the day before the interview it had received an allegation that he might be linked to a terrorist organisation. He denied the allegation and did not know why someone would say this.
He said that he was no longer in a relationship with his previous partner, [Ms A]. Their relationship ceased in about January 2015. She was pregnant with his son.
He said that he fears the Salafis, the Shi’a and Allawis.
Decision of the Department 9 July 2015
The Department did not accept that the applicant was involved in a Salafi/Sunni militia group or that he was kidnapped and beaten in 2012 or that he was a Christian convert. The reasons for this were the lack of detail provided, the implausibility of his account, the fact that he returned voluntarily to Lebanon and his delay in applying for protection.
First Tribunal (differently constituted) decision on 15 September 2015
The applicant appeared before the Tribunal differently constituted. He added to the evidence before the Department as follows:
·He told the Tribunal (differently constituted) that he was on medication for depression. He also said that he had lost 40 per cent of his memory in an incident.
·He said that his role in the militia was to provide first aid. He was not armed and did not shoot people. After trying shooting he did not like it. He fired a few bullets and then he decided that he would leave the militia. He left the gun on the ground and quit the militia immediately. He had to go into hiding so he went to a friend in the mountains near [Town 1]. He was asked by the First Tribunal why he had told the Department he hid in [Town 2]. He said that it was the same location. The Tribunal noted they were about [number] km apart.
·He said that he was with the militia while his fiancée was in Lebanon and he took time off from May to June 2008 and then went back to the militia.
·He said that when he returned to Lebanon in 2012 he could not travel to other countries without a visa. He later said that his lawyer told him that he must lodge an application in Lebanon.
·He told the First Tribunal that he had a message on [social media] from [a]Lebanese community leader [Mr C], in which he said that he had seen the applicant’s name on a list in Lebanon and he could not return. He said that Mr [C] told him that he could not provide evidence of this as a Liberal government is in power.
·He said that his family would not kill him for being Christian but they were not happy with him. He said that he is now an outcast from the family.

The First Tribunal was not satisfied that the applicant was in the Sunni militia or went into hiding in 2008. The First Tribunal was also not satisfied that he was kidnapped in 2012. The First Tribunal was not satisfied that he was a Christian although he may have considered conversion. The First Tribunal found that he was not considered a Christian by his family or anyone else in Australia or Lebanon.
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
The applicant stated in written submissions to the Tribunal that in 2017 he was shot in the [Body part 1] while working [in a workplace]. He said that he was in hospital for three weeks and he required three surgeries following the shooting. [Details deleted]. He said that he has ongoing significant [medical] problems as a result of this. He said that he also suffers from trauma because of this experience.
He said that he is not getting medical attention for his [medical] problems in detention but he is very careful about what he eats as he has had [symptons] on a number of occasions. He said he is ‘not good’ with his medical issues. When he has obstruction issues he has been taken to hospital. He said that he has seen counsellors in regard to the trauma but has not been able to trust them. He said that it takes a long time for him to be able to speak to people openly and he has not seen someone regularly.
He said that he was assaulted while living in Australia and was beaten severely, including around his head. He said that he was left on the road unconscious. He did not go to hospital straight after the incident which was ‘a mistake’. Two days later his partner took him to hospital as he had headaches and was unwell. The hospital said he had concussion and he should follow up with them, but he did not. He said that this experience traumatised him, and made it difficult for him to remember things. He said that his ability to recall events or understand questions and ideas can be limited. He said that he thinks he has suffered a brain injury because of being bashed but he has never had this formally diagnosed. He said that the psychologist he has seen in detention mentioned that he may have a brain injury. He does not have medical reports about this as he has not seen a doctor, but knows his memory is affected and was further negatively impacted by drug use. Sometimes his speech gets heavy. He was asked why he has not followed up with a doctor. He said that he has been dealing with other things and has not looked after himself. He said that he has seen a psychiatrist in detention, because he has had difficulties coping in detention and because of his trauma. He said that sometimes he thinks people are talking about him. He has trust issues and wonders if people know about his sexuality. He has told his psychiatrist about his sexuality. She has prescribed antidepressant medication. He took the medication for a while, but he stopped five months ago because it was making him worse.

82. The applicant told the Tribunal he also has a bad shoulder and has been waiting for surgery for a long time. The shoulder regularly dislocates, and he needs to be taken to hospital to have it put back in. This happened again only in the last couple of weeks [and] he had to be sedated to put the shoulder back. He said it knocks him around. He also said that there have been a couple of times when his shoulder has been dislocated by the guards in detention.
83. He said that he finds it difficult in detention and his mental health is really ‘up and down’, but it is hard to do anything while locked up.

Asked if he was taking any medications at the time of hearing, he said that a week prior to the hearing the psychiatrist prescribed a sleeping tablet for him but he had not taken medication prior to the hearing. He said it is difficult to get an appointment in detention, and the practitioners frequently change, which confuses him. He said that he felt well and capable of giving evidence at the Tribunal hearing.
Drug use
The applicant claimed that his memory is also affected by his past drug use. There are stretches of time that are difficult for him to remember because of his drug use and because he was mentally very unwell.

86. He said that while in detention he had been using [Medication 1], [which] is available in [detention centre]. He said that it helped relax him and makes time go quicker. He said that it also helps him with his drug addiction and with his [Body part 1] injuries. [Details deleted]. He said: ‘while I have been preparing this statement with the assistance of my lawyer, I have not been able to access [Medication 1] and have been experiencing significant withdrawal symptoms including anxiety, muscle aches all over my body, insomnia, problems with my digestion and also I have found it very hard to concentrate, understand questions and to follow conversations. This has made it hard for my lawyer to take my statement and to help me prepare for my hearing. It has been very difficult writing this statement. I have been feeling depressed and very anxious, and have been dealing with the withdrawal from the [Medication 1]. Also, [Mr D] and I have been fighting a lot as we are both very stressed.’
87. He continued, ‘as I explained, I am withdrawing from [Medication 1]. It is a horrible feeling. My lawyer and I have asked IHMS to provide me with medical assistance to help me with the withdrawal symptoms. There are programs here that people are placed in, however I don’t know yet whether I will be placed in a program. It might be difficult for me to concentrate at my hearing and to understand questions. I have also been in a lot of physical pain which is also distracting. Sometimes this can make me agitated. Even before I was experiencing withdrawals, I would become confused quite easily and lose the thread of a conversation. I find this very frustrating as I get lost in the words, however I will always ask if I don’t understand something. Sometimes it seems as if I am not listening, but it is just that I get confused.’
88. At the Tribunal hearing he said that he is still taking [Medication 1]. He is trying to get off it, but it is difficult as he gets body aches, fever and feels sick when he does not take it. He also gets depressed as the [Medication 1] stabilises his depression. He wants to get off it as he has been taking it for a long time and it can cause heart attacks. He has spoken to the medical team to get on to a program. The Serco manager wants to help him and understands his addiction. The doctor from IHMS says he agrees with him but is limited as to what he can do.
Personal details

The applicant confirmed that he was born in [City 1] but grew up in Tripoli. His parents separated when he was young. He and his brothers lived with his grandparents until he came to Australia. He was very close to them and they always wanted him to have a better life. His grandfather has now passed away and his grandmother is very sick. Before his grandfather passed away, he talked to him and his grandmother once a fortnight. They did not speak more often because his grandfather was upset with him because he did not follow through with his arranged marriage with [Ms E]. However before he passed away his grandfather said that he did understand. Since his grandfather has passed away, he has not spoken to his grandmother much. In detention he has spoken to her four times in two years.
The applicant’s father is a well-known [Occupation 2] in Lebanon and has [connections with] high-profile politicians. He was hard on the applicant when growing up and slapped and verbally abused him. He barely talks to his father and does not want to have contact with him. He believes that his father does not care about him and always spoke to him disrespectfully.
He said that his mother did not work and looked after the children when they were young. Then she remarried. When the applicant was living in the community in Australia, he spoke to her about once a year. His family used to call him a lot but he did not answer, as they are not close and he feels too much pressure from them. His mother does message him or call him once a week or fortnight ‘but not often like a parent should’ and ‘mostly if she needs something’. He said that he was close to his stepfather who died a few years ago. He was ‘a lovely person who he loved a lot’. His stepfather treated him and his siblings like his own.
The applicant is in irregular contact with his four brothers. He said that they have not been supportive to him in prison and detention and do not ask how he is. [Details of siblings deleted].
He also has uncles, aunts and cousins in Lebanon. He does not keep in contact with them. He has extended family living in other parts of Lebanon. His family in Lebanon are religious and partake in all religious activity including praying five times a day. He has two uncles in Australia, one in Sydney and one in Melbourne. When he got divorced he spent a lot of time with his uncle in Melbourne. He has visited the other a few times in Sydney. His uncles are Sunnis. His uncle in Melbourne does not practise but he does believe in the culture of the religion and attends mosque every now and then.
After the applicant finished secondary school in Tripoli [he] ‘tried to be’ an [Occupation 3] and a [Occupation 1]. He also went to the army for his national service. He was there for 15 days and then allowed to return for three days to his family. However he did not go back so was arrested and imprisoned for 15 days. This coincided with the time the government ended conscription so he was ‘lucky’.
In written submissions he said that he came to Australia in November 2006 for three months to get engaged to a girl who he had been talking to on the telephone. It had been arranged by his uncle in Melbourne and his grandfather. They wanted him to come live in Australia. When he arrived he did not like this girl, and refused to get engaged. Everyone was in shock as he was the first person they knew to refuse a girl from Australia but he did not like her. So he returned home and ‘everyone gave me hell.’ They said ‘shame on you’, as everything was arranged. He said that it was a hard experience for him.
He said that from 2007 to 2009 he worked in [specified] businesses. His grandparents often travelled to Australia to visit his uncle. In 2008 his grandfather saw his close friend in Adelaide, and found out that his daughter, [Ms E], was one year older than the applicant. His grandfather and friend had discussions, and they arranged a marriage for him. They called him and said that this time he must ‘get his head together’ and marry her. He said he agreed ‘because of the pressure’ to follow his parents’ instructions. He started talking to her on the telephone and then they met each other. He was ‘not that sure at first’, but there was a lot of pressure and he thought that he would be in trouble with his family if he did not agree. He tried to make himself do what they asked of him. After they spent time together they applied for a partner visa. He returned to Lebanon to apply for his visa. Then he ‘followed her to Australia’. It was a genuine arranged marriage not a contrived marriage in order to get him to Australia. She travelled to Lebanon for three months, then he waited six months. After he arrived, and after a year in total they got married. They had a proper engagement and wedding. However they split up on the honeymoon. He said that he did love her however she had told him that she was a virgin which is traditional in their culture and important to a man. During the honeymoon when they went to bed, he found out that she was not a virgin because she was not bleeding and was not ‘hurt’. She said that she did lots of cycling. He was angry because she lied to him. She got in the shower and got dressed and called her parents. He said that the separation was not just about this incident and he was looking for an excuse so that the relationship would not work. He said that for the three months before he got married, he had to work in the [shop] with her family, and the wages went to her family. He was not happy. As well, she used to go out and not tell him. He said that his grandmother provided AUD40,000 for a house for the wedding. They put down a deposit for the house in her name. He said that ‘deep down’ he was not attracted to her. He was also depressed and could not live a normal life. At the time he did not deal with his sexuality and he struggled to have sex with her. But he tried because he did not want anyone to find out that he was gay. He said that there was a lot of pressure on him as the oldest child. He loved her but was not interested in her sexually. He wanted to forget his sexuality and tried to be with her.
The applicant said that after he broke up with her after the honeymoon, he called his uncle and asked if he could live with him. His uncle told him to relax and give the marriage a go. His mother booked him a ticket and he flew to Melbourne. He had to take an intervention order against [Ms E]’s brother who was aggressive to him. He lived with his uncle and went to work with him in [a] shop. His uncle’s brother-in-law was a [Occupation 1] and he worked with him from 2012 to 2013, and then on and off until 2015. He stayed with his uncle for a long time and then rented a bungalow in the back of someone’s house.
He said that he met a woman called [Ms B] in around 2011 or 2012 through a mutual friend. His family was looking for someone for him to marry at the time. He was ‘seeing guys, but not much’. This was a time when he was convincing himself to ‘stay straight’ and he was trying to hide from himself. He said that no-one knew that he was interested in men and he was trying to convince himself to be with a woman. When he met [Ms B], she was young and easy-going and wanted fun. She was ‘not full-on and into marriage, like what had happened to me before’. [Ms B] fell in love and was attached to him and they moved into a house. He was not serious about her but loved her as a person. She wanted to get married and said she would put in a partner visa application. He asked her if she was sure and she said that he was everything to her since her mother died.
The applicant said that before he met her, he met gay people on the Internet or would go to places where gay men were. It would make him happy. When he was with [Ms B] he ‘did things behind her back’ with men.

100. He said that [Ms B] was only [age] and was very attached and was very genuine. They got married and had a party. The agent said that he had to leave and go back to Lebanon, which he did, before returning again to Australia. When he returned, the relationship began to break down. [Ms B] was taking the drug ice. He did not know it was ice at first, and when he found out he did not want her to do it. While he was at work, she started hanging around with people who took drugs. He found out about it and told her it was over. She went ‘off her head’ saying she would kill herself like her mother did. He felt terrible and so he tried to be her friend. One day she threatened to kill herself and he said he would smoke with her to stop her from doing it. They smoked ice and he ‘remembers that day forever’. He was up for three days and he was awake and confused.
101. He said that at the time [Ms B] did not need to have sex often. He was ‘alright with this’. Sometime later he found out that she was sleeping with others and she was addicted to ice. She then found someone else and they broke up.
102. He stopped using ice after a few days. He found a man on the Internet to have sex with and had ice with him, which ‘felt good’. Then he started to use ice regularly to ‘numb everything around him’. He said that this was the period of time when he got into crime. He was taking drugs every day and he mixed with people he should not have. He went to a remand centre for a few months. He said that he was involved in various criminal activity from 2013 to 2018. He said that the first time he was in a remand centre for four months, the second time for four months, and the third time was linked to the second time. He got out on bail and breached his bail and was back in prison for four months. After he was shot, he was mixing drugs and ‘went crazy’ and he was in prison for six months.
103. Until 2015 he saw his uncle a little. From 2015 to 2017 he was in detention and then got out on a bridging visa. He said that this time he has been in detention for nearly 20 months, from [July] 2019 to the current time.
Lies to the Department and Tribunal differently constituted
104. The applicant had told the Department and Tribunal differently constituted that he was part of the Salafist Sunni militia group in 2008 and had to leave Lebanon to flee for his life as he had decided not to bear arms and did not want to fight. He had said that he hid in a town called [name] until he fled to Australia. However in his evidence to this Tribunal he said that he had made up these claims and had never been a member of a militia group, taken up arms and did not have to flee the country. He confirmed that it was also not true that he was kidnapped and tortured by Allawis in 2012 when he returned to Lebanon. He said that he had never been assaulted by Allawis, including getting in fist and knife fights, and was not taken to hospital after being stabbed. It was also not true that in October 2014 Shi’as or Allawis had come to his town with a list of people, and asked about him.

105. He said that he was sorry for having lied to the Department and Tribunal and wasting their time, but he was afraid to return to Lebanon. The Tribunal asked him whether this untruthful information indicated that he had a propensity to lie to government officials. He said that he apologises for making these false claims. He said that back then he did not want to go back to Lebanon and ‘to face what he had faced when he was there’ as he had always known he was gay. He wanted to be himself and did not want his family to try and force him to get married. He was terrified. In Australia he was hiding his sexual preference from himself even though Australia is open and tolerant. However he was ‘in the journey’, and he knew that he could not take that journey in Lebanon. All the time he knew it was in him to be gay, and he wanted to express himself. He said that he did everything that gay men do but he was not ‘out’. He always ‘knew it’. Furthermore, he had a newborn son, [and] wanted to stay in Australia to care for him.
106. The applicant told the Tribunal that he had not converted to Christianity as he had claimed in his application, although he no longer considers himself a Muslim. He said that it was a ‘stupid thing to say’. He said that he had explored religion in Australia and believes in God but does not follow a religion. He respects Christianity and went to church with his partner for a while, but he has not practised or converted. He said that when he completed his protection visa application someone in detention with him told him to say that he was Christian as it would help his case. He said that he was also unwell at the time and worried about his son.
New claims – fear of returning to Lebanon because of his sexual orientation
107. A day before the Tribunal hearing on 19 February 2021, the applicant provided new evidence that he was a homosexual man who would face persecution on the basis of his sexual orientation if he returned to Lebanon. He claimed that he would not be able to express his sexuality and is ‘scared of what they would do to him’. He said that he had hidden his sexuality his entire life and the thought of having to do this again was terrifying to him. He said that in detention people make fun of gay men so he has hidden his sexuality while he has been there. The Tribunal discussed this with the applicant in detail at the hearings on 19 February 2021 and 11 March 2021.
108. The applicant said that he is ashamed that he has lied and apologised for wasting the Tribunal’s time and not turning up to his previous hearing, when he was struggling with trauma and drug use.
109. In written submissions he said that he had no idea that he could discuss his sexuality in his protection visa application and did not understand the laws about this. The Tribunal asked him how this was possible given that he seems to be well acquainted with the immigration system, having appealed his decisions twice and applied for numerous visas. He was asked why if he has a genuine fear of serious harm he would not have raised this previously, even given that he does not like talking about it, given that Tribunal proceedings are confidential.
110. The applicant said that at the time he made his application, he did not know that he could claim protection on the basis of his sexuality. Furthermore he was still denying his sexuality to himself. He did not have legal representation when he made his application to the Department. He did have a lawyer for the First Tribunal but did not tell the first lawyer about his sexuality. He said in submissions that it was only after 2015 that he started to talk to people about who he is, and to come to understand that he is gay. Before this he thought that he was bisexual as the idea of being gay was too much for him to deal with because of his culture. He has ‘gotten to know himself better’ since then.
111. In his submissions he said ‘I don’t know exactly when I knew I was attracted to boys but I would say it was since I was [age]. I liked them. I just really like them. Since I was about [age] I knew that there was something different about me and this is when I started hiding myself.’
112. The first sexual experience he had with a man was around the age of [age] with a friend called [Mr F]. He said: ‘I remember we were talking about sex and we were comparing our penis size to see who was bigger and then somehow we started touching each other and it went from there. He went down on me but we did not have intercourse. He asked me to try and go down on him but at the time I did not know what to do and so I did not feel comfortable about doing this. This experience actually was just really amazing for me. It made me know that I can be with a man. Before that I kept asking myself ‘how can I be with a man? How can I live like that?’ I was like ‘oh my god, what am I doing? What am I going to do?’. But then when I was with [Mr F], I realised I could do it, that I could be with a man and that it felt good. But I was scared to continue because of the culture there and because of my family. I was terrified that I would be bashed up and that I would be punished by my family for bringing shame on them. I was also scared because I felt like it was wrong. It felt so good but when the whole country think that gay men go to hell, it is hard not to think the same thing – to think that you are doing something wrong. I remember after this thing with [Mr F] happened, we were both really scared. We knew we’d be beaten or even killed if people found out. We had to hide it from everyone and it was very stressful. I don’t even want to think what would have happened if my brothers found out. It was really hard living from that point because it was like I had discovered something important about myself but then I had to deny it. To just try and pretend like it wasn’t real. This is a terrible thing for someone to have to do. The mental harm is horrible – I still don’t think I am over it. It really broke me.’
113. Elaborating on this at the Tribunal hearing, he said that even before the age of [age] he always knew it was ‘in him’. He said that when it first happened with his mate, he was thinking ‘what am I doing, but I was thinking he is doing the same thing so it’s ok’. He knew that he wanted to do it, but he was scared, but it was ‘in him’. His friend told him to ‘swear on everything’ that he would not say anything. After that they were very scared. The friendship was awkward but since then he ‘knew’. He knew if he had the chance to have sex with a man he would do it.
114. He said that in Lebanon, ‘culturally, I always used to hang out with boys. This is just the way it is. The boys and girls did not mix when I was growing up in Tripoli. The boys hang out together and the girls hang out together. This is just the religion and the culture there. It is not like here. After this experience with [Mr F], I was too scared to really explore my sexuality more. It was too scary. There were a couple of similar experiences I had with boys that I knew, but it always made me feel scared. So I spent a lot of time with boys, and felt attracted to them, but I could never really explore this side of myself more because I was scared of what would happen to me if people found out.’
115. He provided an example of when he thought people may know he was gay: ‘there was one occasion I remember when I was on the beach and an old man came up to me and asked me to suck his dick. This freaked me out. I was not sure if he actually wanted me to do it, or whether he was testing me. I thought, ‘wow, he has just picked me out, how did he know?’ And I ran away. I was so scared about what would happen and I was worried that people could somehow tell this secret I had. That they could just look at me and know. Hiding who I was was so hard for me. All the time I was really scared of what would happen if my family found out. I thought I just have to follow our culture and only deal with the girls. That I should just do what I was meant to and marry a woman. This is what my family wanted for me. And so I went along with it because I was terrified about being honest with myself, and with them.’
116. He said he started a relationship with [Ms A] in 2015. At the time he was having sex with many men. He said that he wanted to show his friends that he was ‘into women’ as a cover up. He said that he truly ‘was not there’ with [Ms A] and they ‘did not have a good sexual time’. He said that he was trying to convince himself to be with her but when she was not around he was on the Internet finding men. He was only with her for four or five months. She does not know that he is gay. She is the mother of his son and he feels blessed to have a son.
117. He said ‘I am still learning about my sexuality. This has been a very long journey for me but the journey keeps going. I am not used to speaking about my sexuality. It has only been in recent years that I have started to speak about being attracted to men, and it has been even more recently that I have realised that I am gay, and not bisexual. I still feel a lot of shame around all of this. I know that this sounds stupid, but when you grow up like I did, when you grow somewhere that thinks being gay is wrong and disgusting, it is hard not to believe this a little bit yourself. It is hard not to hate yourself a little. For these reasons, I can find it hard to speak about my sexuality sometimes.’
118. He said that being gay is not acceptable in Lebanon and is ‘always behind closed doors and is like a shame. Gay men who get caught get hurt. When I was [age] or so I remember I saw a man get bashed and spat on. I was playing pool in a pool hall and saw this man get kicked out and bashed up when somehow people found out he had sex with another boy. They were yelling at him and spitting on him. This is not unusual in Lebanon for men who have sex with other men.’ He said that being gay is very shameful and people think that there is something wrong with gay people and they deserve to die. He said that this is also linked to religion, both for Muslims and for Christians and that being gay is something people believe you go to hell for. He said that people in Lebanon are disgusted by gay men. He said that his family and friends did not talk much about gay people. He did not know any gay people as they were always hiding. He had heard of them being spat on and bashed.
119. He said that both his parents hate gay people. He said that he had heard them speak in the past about gay people and talk about how they should not be around. He said his father would say things like ‘God cursed these people, I hope these people die’. He said that his father did not understand how people could be gay or how a man would touch a man. He said that gay people should be banished. His parents both hate gay people. He said that his brothers also speak badly about gay people and he is sure that they would not be tolerant of him. He said being gay is not ‘even a subject that comes up, it is not spoken about it in life there’. He said that it is only spoken about if there are bad things to say. They would not accept him and will abandon him. He is scared of them in a crowd environment. His father was violent to him as a child. He does not talk to his father now as his female relationships did not work. He believes that his father would pay someone to hurt him or he and his uncles may do it themselves, so they could ‘look better in front of the Lebanese community’. He believes that he could be executed and is very scared of it. He said that he has heard that there are gay people in Beirut but they are not out in the community as they would be killed. He has hidden being gay from his family who still do not know, including his uncles in Melbourne and Sydney. He said that he is terrified of them finding out and telling his Lebanese family. He said that: ‘this is a part of the reason that, even in Australia, I hid myself for so long.’
120. In written submissions the applicant said that from about 2010 to 2015 in Australia he was having sex with men in secret. He met these men online and they would meet at their places and have sex. He said that he did not have ongoing relationships with any of the men. He said, ‘I found this really hard. It was a complicated and stressful life. This is what led me do drugs – to numb how I felt. It was very hard to live a secret life, to live the life you want to live and be the man you want to be and to lie to the person who are in a relationship with. I could not come out because I was in relationships with women – I was just kidding myself. I was trying to live the life my family wanted for me but it never worked out because I was lying to myself the whole time. I was lying to everyone about who I am. I was terrified of anyone finding out about me and I worked hard for a really long time to try and fit in. I tried relationships with women and I think I was just denying to myself what was really going on. I was very confused and scared during this period because I couldn’t accept what was going on with me. I felt disgusted with myself and this made it hard for me to look at myself. I also felt very guilty that I was using these women that I actually did care about and who cared about me. The other thing I was doing was trying to find a way to stay in Australia because the idea of living in Lebanon was impossible now that I had started to be able to explore my sexuality.’
121. The applicant discussed his relationship with [Mr G]. He met [Mr G] a few years ago and they started having sex and formed a relationship. He said that it was ‘a friendship but it was complicated because he always had feelings for me and I had feelings for him and we were having sex. I thought it was a casual relationship, however I never knew he wanted to be with me until very recently. When I got together with [Mr D] ([my] current partner), [Mr G] and I had been having sex for a few years however I never realised he wanted more. When I got together with [Mr D], he was really sad but I did not realise. And there were feelings there – but we never spoke about it seriously to be partners. [Mr G] is the first person I allowed myself to really have feelings for, to talk to about my sexuality. I think by that point I was ready to start talking. And [Mr G] was really good to speak to. He still is. We still talk regularly and we are very close still. [Mr D] and I have had a big disagreement about my relationship with [Mr G]. [Mr D] does not like that I speak to him and that we’re close. My relationship with [Mr G] I think is when I started being able to accept myself and to start acknowledging what was going on with me. He made me feel comfortable and safe and I had never had that before. Still, I was really unwell mentally. The process of starting to talk about myself was not easy. It wasn’t like all of a sudden everything was better. In some ways it became harder as I started to look at myself and so this was still a really difficult period for me. I continued taking drugs to help myself with all of this and I was in emotional pain.’
122. The applicant also provided information in his written submissions about [Mr H] and a person called [Mr I]: ‘About 2 or 3 years ago, I moved in with a gay man by the name of [Mr H]. We met online a long time ago, about 8 years ago. We used to have sex together, but then we became friends in the last few years. He was a very good friend of mine. He passed away last year [and] this broke my heart. Living with [Mr H] was a great experience for me. He was very helpful for me. I was myself around him and he introduced me to some of his gay friends, and other friends, who all made me feel very comfortable. One of these friends was [Mr I] (this is his nickname), who knows he is gay and is comfortable with this, but he does not want anyone to know. This is why I have not included his surname here. [Mr I] was a close friend and he was also really important because I met my best friend, [Ms J], through [Mr I].’
123. The applicant provided information about [Ms J] in his written application: ‘[Ms J] is my best friend. I have known her for a few years. We met through mutual friends. [Ms J] is always a good vibe and always sits down to give me an ear. She can see the good person in me. She wants to sit down and listen and help me. She has faith in me. She understood that I was using drugs to hide myself and numb my feelings – she discovered that this is what I was doing. She said, ‘you are suffering, you can’t keep doing this’. And I was suffering. It was awful. I was very comfortable talking to her because she doesn’t judge. At that time, I was removed from my family in Australia, and I felt more comfortable and safe to talk about myself. I thought to myself, ‘man maybe I am a bad person and I need to change being gay – where did this come from?’ But when I met [Ms J], and then later [Mr D], they told me ‘no, there is nothing wrong with you’. I used to hate myself – I hated myself so much I have tried to end my life. Now, I love myself, but it took me a long time to get there. There are two times in my life when I thought I am a bad person, I should just end it, and then I would not need to deal with the shame and with my family anymore. I am not suicidal now – I don’t want you to think that. But this is how bad I was. Initially I thought I was bisexual because I had relationships with women and I was sleeping with women. But it took me a while to realise actually I was gay. That being with women was a cover for myself and for my family. At the same time, I felt like I was using these women – which is not right – at the same time I did have this love – but at the same time I knew it was not right. I had so much guilt inside because I knew I was using them and that they were falling for me. I still have that guilt. I am actually surprised talking about this how upsetting it still is. If people judge me for using drugs they don’t understand how bad it was – this is the biggest reason – to numb myself from myself. This is the situation that [Ms J] saw at first. She somehow saw through all this and we became very close…She was a big reason that I started to be able to accept myself. She was like a guide for me. She held my hand through it and I feel very lucky that I met her.’
124. The applicant said that he has been in a relationship with [Mr D] for two years. [Mr D] is a friend of another friend, [Mr K] and they met at his apartment. He said that ‘as soon as he met me he saw something in me. He asked me for coffee afterward. [Mr K] told me he was gay and this made it very comfortable for me to speak with him. I told him everything about me. It was a huge relief to talk to [Mr D]. I had already started on that journey with [Mr G], [Mr H] and [Mr I] and then with [Ms J] and her friends, and now with [Mr D] I was at a point where I could just tell him everything.’
125. The applicant said that he was able to reveal himself to [Mr D]: ‘“[Mr D] I just want to be a good person and live a normal life and no more secrets and lies’.” He said, “tell me everything”. He said that he would help me and guide me and take care of me. He told me that he fell for me from the moment he met me, but when I told him more about me this is when he decided we should be together. I fell for him. I love him. He is complicated and he can be demanding and sometimes he does my head in. It is like he thinks he is going to save me. Despite all of this, my relationship with [Mr D] is beautiful. [Mr D] helps me mentally and emotionally. It is very difficult not being with him. I feel lost. I really need to be with him because when I am with him I feel safe and complete. I class [Mr D] as my first proper actual relationship with a man – because he helped me to get it out of me and not to hide myself. I told him the truth about me and who I am and what I used to do and he helped me to live my life and be with a man. To learn about myself and to like who I am.’

126. He said that currently his relationship with [Mr D] is difficult as he is in detention. He said that [Mr D] makes ‘everything about him’ and he cannot give him the attention he needs. However he does love him and [Mr D] has been by his side while he is in detention.

The applicant claimed that if he is sent back to anywhere in Lebanon he would have to hide otherwise he risked being abused and beaten, maybe even tortured or killed. He said that he would live in constant fear and would worry constantly that people would find out about him. He said that he would be surrounded by a culture that tells him that being gay is wrong and is scared about what this would do to him. He is afraid that he would fall back into taking drugs to numb himself.
He also claimed that he is terrified of what would happen if his family found out. He said: ‘I am scared of what my father and brothers and uncles would do because they would think I have brought shame to the family. They are conservative people. My dad and I don’t really speak anymore. A big part of this is because he is angry at me for not following through on a marriage. He asked me what was wrong with me and said that I am not normal. One of my brothers is in the army. I am scared of what they would do to me if they knew. They are Sunni Muslims who think that being gay is wrong. I am scared that they would beat me and throw me out of the family. They would abandon me. They would punish me badly for bringing shame to the family. I am also terrified of what would happen if they found out I am not a Muslim anymore. I am scared that they would beat me very badly for this. My family is upset that I never followed through with the arranged marriages. They keep saying to me that when I am out of detention, I need to go back to [Ms A] and be with her. It is important to them that I marry and live life as a man – their idea of a man. If I am forced to return to Lebanon, I know that they will try and get me married. I think that they are embarrassed that the oldest boy in the family is not settled down with a wife and with children. I don’t want to marry a woman. I can’t. But I know that this is what my family wants for me and this is what they will try and do for me. I am scared what would happen if I refuse. And I am scared about what would happen if I am forced to marry.’

129. In conclusion, the applicant said that ‘from the bottom of his heart’ he is really sorry that he applied for a protection visa on the basis of incorrect claims. He asked the Tribunal to consider that his life has been a difficult journey and he has had to live in secret. He is now living the life he wants to live. When it comes to Lebanon he is terrified of his community finding out and he does not want to go back there.
Data breach
130. The applicant claimed in submissions that he will be seriously hurt if he returns to Lebanon because of information that has been revealed about him as a result of a data breach in the Federal Circuit Court. He said that he understands that his personal details and contents of his claims have been publicly available for a long period and was accessible to anyone, including the Lebanese government. He said ‘[In] May 2020, I received a letter from the Federal Court of Australia notifying me that my personal information had been leaked and was publicly available. I am really scared about this. If groups like Hezbollah think that I joined the Salafis, then I will be in a lot of trouble. Hezbollah controls everything in Lebanon. They even control the airport. I am scared that they will interrogate me, detain me and bash me. I am scared that the government will do the same. Hezbollah and the government are all together in Lebanon. If the Salafis think I ran away from them, or if they realise that I used them and lied about my involvement with them, they will punish me. They are an extreme group and they are really violent. It’s such a stupid thing I’ve done – I can’t believe that I have put myself in this position. I’m also scared about what would happen if I am interrogated by Hezbollah, the Salafis or another military or religious group. I am scared that they will find out that I am gay. I am scared that they will find out that I left Islam and do not believe in their god. If this happens, and they think of me as a traitor, then I know I will be beaten and maybe even tortured by them and killed by them. I am very scared about this.’
131. He told the Tribunal at hearing that he fears Hezbollah as they are in control of the whole country and they have control of the airport. It has happened before.
132. [A named person] told the Tribunal at the hearing that her information was that the data breach took place over many years. She has had a look at the report and it was unclear what caused it. Beyond the person’s name, there was other identifying information as well which was disclosed. She said that his sexuality may lead to the applicant being questioned, and that if Hezbollah had the information from the data breach, they may find out about his claims made about the militia group and his rejection of Islam. She submitted that this is not a far- fetched proposition as the applicant has been in Australia for a long time and there may be specific reasons for searching for his name. There is a possibility that the information may have been accessed.
133. She submitted that country information indicates a level of improvement in the approach of the community towards LGBTI people, but there is current and recent information about ongoing violence towards LGBTI people. She submitted that the changing and deteriorating situation in Lebanon including increased poverty, the influx of refugees, the worsening economic position of the country and the explosion have created an unstable economic, political and social environment. She submitted that gay communities are more vulnerable because of this.
Statutory Declaration of [Mr G]
134. [Mr G] said that he is a close personal friend of the applicant and had an intimate sexual relationship with him. He said that he met the applicant around six years ago, via a social networking chat site. They spoke a few times and met in person soon after and they ‘hung out frequently’. [Mr G] said that he works full time, so the applicant would spend time with him on the weekends, ‘almost like I was a bit of a refuge for him. He was always calm and at peace and happy when he was with me. He would come and hang out with me and it was a nice and honest time together. I don’t know his network of friends but I don’t think they were necessarily the best people to be hanging out with at that time. I didn’t have any time for them. Our time together was pretty much just ourselves.’
135. [Mr G] said that their sexual relationship developed over time, along with their friendship. It became sexual quite early on in the friendship, and they have had a sexual relationship on and off since they met. He said that it is impossible to have that kind of relationship with somebody in detention, so he has not committed to anything while this process is going on. He said that if the applicant was to get out then he would want to explore their relationship evolving again, if he wanted that too. He said that their relationship together has been fluid.
136. He said that he played a key role in the applicant ‘being able to explore the side of himself that he felt he needed to hide. Our relationship was like a sanctuary to him, where he could safely explore an emotional and sexual connection with another man. When we met, he was ready to do that for the first time. I love being a big part of his journey.’
137. He said that they did not go to gay events or anything like that because he was not the sort of person who ‘throws it all out there’. He said that they did not have a need to display anything. He said that he is not feminine and that made it easier for the applicant to accept the way that he felt about him and about his own sexuality. He did not need to change his mannerisms or behaviour or the way he acted. He said that he ‘was able to be the same person he always was, but channel his energies into something that’s a bit more honest and real – rather than something that went against what was in his heart.’
138. He said that the applicant was hesitant to speak about his sexuality as that ‘gave an element of reality’ to it. He said that being in a relationship with a man was new and foreign to him and it did not gel with his normal behaviour and lifestyle. He said that with time, ‘it kind of evolved and he started to get a bit more comfortable speaking about it with me. He could be his full self with me, but I knew he wasn’t able to talk about it with some of his other friends and definitely not his family.’ He said that this was due to his culture and family, who are conservative. He said that the applicant was worried about their response if they found out that he was attracted to men, ‘it wouldn’t just be a slap on the wrist. It would be more scary and violent than that.’
139. [Mr G] said that the types of friends the applicant had when he came to Australia ‘compounded the issue a bit’ as they were not queer friendly. He said that they were quite traditional and bigoted, and ‘it only magnified the belief that being attracted to men was not okay. I think it was a cultural thing for many of his friends as well. It was really difficult for the applicant to come to terms with his sexuality when everything and everyone around him told him that it was not acceptable. His friends and family were both effectively showing him that he had to be straight and yet he was feeling the way he was feeling: attracted to men.’
140. He said that he knew that he had had female partners in the past. [Mr G] said that he understood because he was in a similar boat himself. He also had girlfriends growing up, and he later evolved and became honest with himself and accepted his sexuality. [Mr G] felt like he could be a mentor for the applicant. He said that he never mentioned whether he had sex with men in Lebanon. He was not sure if he did have any homosexual relationships back home. He knows that the applicant has had relationships with other men in Australia but he only heard about it recently. He said that he is in constant communication with the applicant, who keeps his sexuality quiet in the detention centre due to the fact that many of the detainees have cultures which are opposed to homosexuality.
141. He said that the applicant fears for his life in Lebanon from family members. He would also live in constant fear.
Evidence of [Ms J]
142. In a Statutory Declaration and evidence at the Tribunal hearing [Ms J] said that she is [an occupation] and [a] student.
143. She met the applicant in late 2017 or early 2018 through mutual friends. She said that they are now best friends.
144. She said that from the moment she met him she knew he was not straight even though he was not in a relationship when they met. He was ‘always quite affectionate and touchy feely with boys. His energy was like that – he’s very flamboyant.’ She said that it ‘wasn’t any news to me that he was a gay man’.
145. After a few months she saw that he was close with a man. She said that he told her about his past relationships, female and male.
146. She said that he did not always call himself gay, and in the start tried to keep up appearances. She suggested to him that he was bisexual, and he would say that he didn’t want to talk about it. Eventually they got to the point where she asked him how he defined himself and he said that he just likes boys. She said that:
One day he messaged me to say that he was really struggling. I told him to come and stay with me. Basically, he was having difficulties with hiding his sexuality, hiding his true identity in this way. He was super depressed. He has not had a lot of contact with his family and he was staying with people who were not good for his mental health.
He told me he did not know what was going on, who his friends were, or who was judging him and who wasn’t. He wasn’t okay... For the next few months he stayed with me and he just got back to his normal self. He was free to be whatever he wanted to be: his flamboyant self. During that time we got to the point of him telling me that he was attracted to men and that his family wasn’t going to understand him. When he got to me, he was desperate. He was desperate to find someone to say it is okay… He’d been doing his own head in trying to escape himself, his family and his sexuality. He wasn’t doing himself any favours; his mental health and physical health were suffering. Basically he just stayed with me and healed himself a bit. I was someone who was just supportive of him no matter what. He thrives in that kind of environment.
147. She said that he has become family to her and her parents are willing to support him. He feels terror about his family finding out that he is gay. She is afraid he will hurt himself if sent back to Lebanon as it was a terrible experience there having to hide his identity.
148. She said that the applicant would not dream of exploring his sexuality in Lebanon as the consequences were too high. Both Muslims and Christians oppose homosexuality. His family there make decisions for their children and arrange marriages. Because of the way his family is she has no doubt that he would not be safe if he returned. She said that he spoke to her about his family in Lebanon. They were ‘not speaking a lot to him as he had not gone through the arranged marriages, and had brought shame’. She said that it was not an option for him to tell them about his sexuality as they were not accepting of that kind of lifestyle. He told her that there is no life for him in Lebanon. His father would want to kill him and his mother would disown him. He did not feel that he would be safe. She said that he had not really spoken of his brothers. He said that he is fearful of being gay in Lebanon generally as it is not accepted.
149. She said that he accepted the arranged marriage because of family expectations and as a way to escape Lebanon. She said that the union did not last as this was not where his heart was, and after this he really tried to find a woman he could love. She said that, ‘but it was never real because obviously he was more and more drawn to men. As his confidence in himself grew, and he was able to overcome his shame. Eventually he was free and confident to know what he wants. (The applicant) has been with a few men now. They haven’t all been full, in-depth relationships, but being with men is what’s made him happy. When I first met him he was really close to a man I knew. His name was [Mr I] and they used to stay together. There was always an underlying sexual tension. They were always saying that nothing was happening between them, but on one occasion it did go further. After that happened, (the applicant) was scared and they stopped being friends.’
150. She said she was aware that he spent time with another man called [Mr G]. However he was afraid of his uncles finding out and never fully committed to being a gay man until he just had enough of fighting it. She said that when he stayed with her, there was a young guy who he used to sleep with called [Mr L]. They were very attracted to each other and would always spend time together, but they were never in a relationship. They were planning to go up to Sydney [and] see [Mr L], but then the applicant was detained. She said that around this same time, the applicant met [Mr D] through a mutual friend. [Mr D] was incredibly jealous of [Mr L]. Very soon after they met, the applicant went to stay with [Mr D], and they ‘couldn’t stay away from each other’. She stayed with both of them for a while. They were forced to continue their relationship in detention which she said had been difficult. She said that outside of detention, [Mr D] and the applicant were ‘cute’, an old married couple.
151. She said that the applicant still speaks to his mother but not his father. He has said his father would not accept him being gay. She said when he stayed with her they had a big discussion over a couple of days and he was crying his eyes out and pouring his heart out. He ‘just wants to be free to be who he wants to be’. She said that he is paranoid about anyone who is associated with his family in any way.
152. Asked if there was anything further she wished to tell the Tribunal, [Ms J] said that ‘things had been tough for him’. She said that he was just starting to blossom, and coming to terms with himself, then he was put into detention as he had not ‘paid attention to his visas’. She said that he was so stressed about everything and he escaped from the stress. Now he had gone into detention so she hopes he has the opportunity to go back to people who love him and will support him so he can be free.
Statutory Declaration of [Mr D] and evidence at hearing
153. [Mr D] is [was working] but is currently on Centrelink payments. He is the applicant’s partner. He said that he met the applicant through a mutual friend, [Mr K], two years ago in 2019. When the applicant arrived at the friend’s house, he was very hungry so [Mr D] fed him. They started messaging that night and [Mr D] instantly liked him. The next night the applicant went to [Mr D]’s house with a friend and it went on to become an intimate and sexual relationship. He said that ‘it was flirty at the start and a bit cheeky’. The applicant was unwell at that time and started living with [Mr D]. He said that the applicant had no partner at the time.
154. [Mr D] said that he heard relatively early in their conversations that the applicant had had two wives and one partner. He had been separated from his previous partner [Ms A] for two or three years.
155. [Mr D] was asked if the applicant spoke about Lebanon. He said that he was embarrassed when he lived in Lebanon, and kept his sexuality to himself. He did not tell anyone and was ashamed.
156. [Mr D] said that the applicant has not been in contact with his family in Lebanon. The family do not know about their relationship. The applicant does speak to his mother and one brother on the phone. He had not told any friends in Lebanon about his sexual orientation.
157. He said that the relationship has been fragile while the applicant has been in detention with deteriorating mental health. He said, ‘I think it is also because of the shame he feels for lying about his past, for lying to himself and to others and now having to confront his behaviour as his hearing comes up. He has been very stressed, and at times I think he feels like giving up because it is a lot.’
158. [Mr D] said that when he first met the applicant he wanted him to show him how to come to terms with his own sexuality. ‘He said that there was something in me that gave him the courage to be himself. And there was something inside me that could see the good person that he was.’
159. He said that when they were together it was ‘bliss’. They cooked together, watched television together and got to know each other. They talked a lot about their future and having a business together, a [shop] as the applicant had done [that type of work]. They talked about travelling together and raising children together.
160. He said that it was hard when the applicant went off drugs as watching someone go cold turkey was torture. He stopped drugs for [Mr D] and wanted their relationship to be better. He said that being the first man the applicant has had a serious intimate relationship with has been amazing. It was a ‘privileged thing’. He said that he feels honoured to have helped him: ‘I’m proud to call him my partner. I’ve had a 10-year relationship and was married to another man, and yet I couldn’t be prouder to call (the applicant) my partner. I’ve never experienced love like I have from him.’
161. He said that the applicant gave him an engagement ring last year, but he often tries to push him away because he wants him to have better. He said that it took a while for the applicant to identify with the word gay and was really ashamed of his sexuality. He said that he really struggled to talk about it. It has taken him a very long time to be able to not only talk about it but accept it.

189. Thirdly, the Tribunal notes that although the applicant has lied extensively in documents provided to the Department and this Tribunal differently constituted in the past, the Tribunal is not persuaded that this means that he has a propensity for telling untruths, which includes devising the current claims. The court noted in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 that a decision-maker can consider inconsistencies in assessing credibility, but it is the evidence as a whole that should be assessed, and the significance of the inconsistency within that context. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan,[9] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ There may for example be instances where applicants have lied or exaggerated about one aspect of the evidence. However, specific lies do not indicate that the applicant’s entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.[10]
[9](1996) 40 ALD 445.
[10] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

190. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

191. The Tribunal must consider the evidence in its entirety and not in isolated parts, Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997). The Tribunal notes that while the applicant may have lied in order to remain in Australia when he first applied for protection, and carried this lie through two Tribunal processes, at that time he had great difficulty in acknowledging and revealing his sexual orientation. Given the cultural approbation towards homosexuality in Lebanon, and his parents’ wish as the eldest son to arrange a marriage for him, his reluctance to reveal his sexuality is understandable. The United Nations High Commissioner for Refugees (UNHCR) acknowledges the complex issues faced by the LGBTIQ+ community in publicly identifying and sharing their sexual and gender identity, including in the Middle East:
Confronted with previous experiences of violence and discrimination, LGBTI persons of concern are reluctant to be identified as LGBTI persons. Operations, primarily in Africa as a whole as well as the Middle East and North Africa (MENA), reported that LGBTI persons of concern were reluctant to come forward and share their concerns or seek protection out of fear of being the target of discrimination, including violent attacks due to exposure as an LGBTI person within the community. This fear is also present among LGBTI persons of concern in countries of asylum where LGBTI rights are respected and openly exercised. In such circumstances, many LGBTI persons of concern continue to hide their sexual orientation and gender identity out of fear of exposure in their own community.[11]
[11] United Nations High Commissioner for Refugees, UNHCR Age, Gender and Diversity Accountability Report 2017, October 2018

192. The applicant has expressed significant remorse for his earlier false claims and said that he ‘stupidly’ relied on the opinions of others in the detention centre to formulate his original claims. He said that he was very fearful of returning to Lebanon and leaving his son behind in Australia and that this was the reason he formulated these false claims.
193. While the Tribunal can take into account the period of time that has elapsed between an applicant’s arrival in Australia and the application for protection, in finding that the applicant’s claims are not credible, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, in this case the Tribunal has found the applicant’s reasons for delay to be reasonable. In addition to his reluctance to reveal his sexuality during his journey to self-acceptance, which began properly in 2015, the applicant was shot [in] 2017 and had to have a number of operations, which left him with ongoing [problems] and was assaulted and was beaten around the head, which led to a number of memory problems. The applicant claimed in his statement dated 26 August 2019 to the Tribunal differently constituted as part of a review of a decision of a delegate of the Minister for Immigration to refuse a Bridging E (Class WE) visa under s.73 of the Act that he was mentally unwell at the time when his previous bridging visa expired and did not realise it had expired nor that he had a hearing before the Tribunal, which he subsequently missed. He was in a detention centre between 2015 and 2017. In 2019, he also collapsed on the street and was taken to hospital with some kind of a seizure. Between 2017 and 2019 he spent significant amounts of time in prison and became addicted to ice. Between 2013 and 2019 he committed numerous criminal offences. All these factors may well have contributed to the delay in bringing these claims before the Tribunal.
194. Fourthly, the Tribunal notes that the applicant provided information about his gay partner, [Mr D] in a statement dated 26 August 2019 to the Tribunal differently constituted as part of a review of a decision of a delegate of the Minister for Immigration to refuse a Bridging E (Class WE) visa under s.73 of the Act. He also told a psychologist from the International Health and Medical Services in 2019 about his homosexuality.
195. For all these reasons, the Tribunal is satisfied that the applicant is a gay man who has had a number of serious relationships and wants to continue to have relationships with men in the future.
196. The Tribunal is also satisfied that the applicant’s family are traditional, conservative Sunni Muslims. They come from Tripoli, generally a more traditional region than Beirut,[12] and they tried to arrange two marriages for the applicant. The applicant has also described how he then attempted to enter two other relationships with women because he thought that this was expected of him. The Tribunal is also satisfied that the applicant has had a poor relationship with his father, who is angry with him that he has not married and was violent and abusive when he was young. His evidence about this is corroborated by the witnesses, with whom he has discussed these matters.
[12] The Conversation, Tripoli: the Lebanese city of contrasts that's now the bride of an ongoing uprising (theconversation.com), 5 November 2019
Does the applicant have a well-founded fear of persecution?
197. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation (s.5H(1)). The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
198. Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention. The Tribunal is satisfied that the applicant fears being persecuted for reasons of his sexual orientation, given his testimony about his fears and how he has had to hide his sexual orientation not only in Lebanon but from friends and family in Australia. The Tribunal has also considered country sources about persecution in Lebanon, discussed further below.
199. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country the person would be persecuted’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.
200. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.
201. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
202. The Tribunal is satisfied, based on the independent sources about Lebanon, including the DFAT Report,[13] discussed below, that the applicant faces a real chance of serious harm in the sense of a substantial and non-remote chance, in Lebanon for reasons of membership of a particular social group, namely gay men.
[13] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
203. This real chance of serious harm applies to his hometown Tripoli, often regarded as more conservative than other parts of Lebanon. While the country sources indicate there is more tolerance in Beirut, the Tribunal is satisfied that a real chance of serious harm exists there and in other parts of Lebanon as well, for reasons set out below.
204. Currently, sexual intercourse ‘contrary to the order of nature’ is criminalised under Article 534 of the Criminal Code in Lebanon.[14] In 2018 the Court of Criminal Appeal in Mount Lebanon issued a ruling that consensual sex between people of the same sex is not unlawful, provided it does not violate morality and ethics (i.e. being performed in a public place). DFAT described the background to this ruling: ‘the court’s ruling upheld an earlier criminal court’s decision in 2017 to acquit nine people arrested by police in Beirut on suspicion of being gay and/or transgender. The ruling also follows four similar judgements from lower courts between 2007 and 2017 that declined to convict LGBTI individuals under Article 534.’[15]
[14] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
[15] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
205. Human Rights Watch in its 2021 World Report noted that ‘LGBT people participated prominently in the nationwide protests that began on October 17, 2019. By taking their struggle to the streets, through chants, graffiti, and public discussions, LGBT people have moved demands of their rights from the margins to mainstream discourse.’[16] Human Rights Watch report in another article that LGBT people are ‘using the power of voice to demand rights, sparking new possibilities for the recognition of their rights and identities in Lebanon’.[17]
[16] Human Rights Watch, World Report 2021 – Lebanon, World Report 2021: Lebanon | Human Rights Watch (hrw.org)
[17] Human Rights Watch, Lebanon’s LGBT People Reclaim their power, 7 May 2020, Lebanon’s LGBT People Reclaim Their Power | Human Rights Watch (hrw.org)
206. The court ruling and the participation in these protests suggests some progress towards more tolerance of LGBTI people. DFAT has said that while other judges are not legally bound by the Mount Lebanon court’s precedent, and may still impose convictions under Article 534, legal experts believe they are likely to give serious consideration to the ruling in subsequent cases. Several prominent candidates publicly advocated the repeal of Article 534 during the May 2018 elections.[18]
[18] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
207. However notwithstanding the court ruling, the protests and some advocacy for reform, Article 534 has continued to be enforced sporadically throughout the country,[19] although enforcement is not common.[20] The United States Department of State reported that in 2019 the law was occasionally enforced in civilian and military courts. On April 1 2019, a civilian court in Saida ruled on a 2017 case, convicting two men accused of homosexual activity under Article 534. The initial sentence of jail time was replaced with a fine of LBP 500,000 ($333).[21] A report in 2017 by Helem-Lebanese Protection for LGBTQ individuals,[22] found that the number of arrests using Article 534 had been on the rise since 2012. Arrests have been on the basis of physical appearance or mobile data. The report also referred to bullying, arbitrary work expulsion, hate speech and public homophobia.
[19] Proud Lebanon, LGBTIQ Community in Lebanon, documenting stories of torture and abuse’, INT_CCPR_ICO_LBN_27260_E.pdf (ohchr.org)
[20] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
[21] United States Department of State, 2019 Country Reports on Human Rights Practices: Lebanon, 2020
[22] Helem-Lebanese Protection for LGBTQ Individuals, Human Rights Violations against Lesbian, gay, bisexual, transgender and queer individuals in Lebanon, April 2017
208. Human rights observers report that authorities have at times used Article 534 as a means to crack down on visible and vulnerable groups often involving arbitrary arrest.[23] These crackdowns have generally occurred after religious groups have pressured police into taking action. Human rights observers have reported cases of detained LGBTI individuals being subjected to physical abuse in some police stations, including being raped in some instances. Some police still reportedly threaten to subject LGBTI detainees to anal examinations. LGBTI advocates also report cases in which police have ordered LGBTI individuals to open their mobiles and have then summoned their contacts for questioning, most likely as a means of blackmail.[24]
[23] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
[24] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
209. The Universal Periodic Report to the Office of the United Nations Commissioner for Human Rights said about Article 534: ‘it also creates a larger premise to condone structural harassment of all LGBT identifying individuals and deny them basic rights to safety and state protection from violence (economic, social, etc…). LGB men and women and trans* persons can not refer to the police/judicial body for protection against harassment, violence, arbitrary termination of employment or any form of discriminatory denial of services or rights. In cases that did refer to these bodies, they were subjected to further harassment by the police and their complaint was not followed.’[25]
[25] “Universal Periodic Report on Homosexuality and Gender in Lebanon” Submission of Universal Periodic Review (UPR) on its 23rd Session to the Office of the High Commissioner for Human Rights March 2015
210. The United Nations Human Rights Council in November 2020 recommended that Article 534 be repealed and measures be taken to prevent discrimination of LGBTI people in Lebanon. The Council referred to concerns of the Committee Against Torture that there were allegations of harassment, arbitrary detention, torture and ill-treatment of men suspected of being homosexual held in custody by Internal Security Force officers. Officers allegedly ill-treated homosexual men through forced HIV testing, threats of prolonged detention, and threats to expose their identities to family or friends. According to the Committee, anal examinations of men were still being carried out in Tripoli.[26]
[26] United Nations Human Rights Council, Compilation on Lebanon; Report of the Office of the United Nations High Commissioner for Human Rights, 16 November 2020
211. Human Rights Watch has also reported on the broader implications of Article 534:
LGBT people will continue to live on the margins unless the Lebanese government repeals article 534 of the penal code, which punishes same-sex relations, Human Rights Watch said. The government needs to introduce legislation that protects LGBT people from discrimination and upholds their fundamental rights to dignity, bodily autonomy, socioeconomic mobility, and freedoms of expression, association, and assembly. Lebanon’s dire economic situation and increasing social inequality have been most devastating for communities already marginalized prior to the crisis, including LGBT people. The devaluation of the Lebanese pound by more than 50 percent, unfettered inflation, diminishing employment opportunities, and deteriorating health care have disproportionately affected the most vulnerable. The Covid-19 health crisis compounds the economic difficulties and LGBT people, who often face healthcare discrimination and economic marginalization, are all the more compromised.[27]
[27] Human rights Watch, Lebanon’s LGBT People Reclaim their power, 7 May 2020, Lebanon’s LGBT People Reclaim Their Power | Human Rights Watch (hrw.org)

212. According to the United States Department of State, official and societal discrimination against LGBTI persons persisted in 2019. Observers received reports from LGBTI refugees of physical abuse by local gangs.[28] A study in 2019 found that 32 per cent of men who had sex with men reported violence and/or discrimination, but this varied greatly depending on region.[29]
[28] United States Department of State, 2019 Country Reports on Human Rights Practices: Lebanon, 2020
[29] Orr, Shebl, Heimer and ors, Journal of Interpersonal Violence, Violence and Discrimination Against Men Who Have Sex With Men in Lebanon: The Role of International Displacement and Migration, 28 October 2019
213. Societal attitudes continue to be hostile towards homosexual men. One study in 2019 found that only 6 per cent of people accepted same-sex relations.[30] In another study, 75.9 per cent disagreed that it would be beneficial for society to recognise homosexuality. A majority said that they avoided homosexuals if they could and believed they were a threat to traditional family and to society.[31] This information correlates with the applicant’s recollections of how people spoke about gay people when he grew up. He said that they did not know gay people as they were hidden, and people were disgusted by them and believe there is something wrong with them and they should be killed. He recalls seeing a person in a pool hall, who people suspected of having sex with a man, being bashed and spat on. [Mr D] who travelled to Lebanon for work and with a former partner experienced similar attitudes and said that [they] were warned about the dangers of being gay in Lebanon.

[30] Weinthal, B; Only 5% of Palestinians and 6% of Lebanese accept gay relationships, The Jerusalem Post, 1 July 2019
[31] Arab Foundations for Freedom and Equality, As long as they stay away, exploring Lebanese attitudes towards sexualities and gender identities, 2015
214. Opposition to LGBTI issues and individuals remains prevalent across Lebanese society, particularly amongst men.[32] The December 2013 UN Women survey on Gender Equality found that only 27 per cent of men (compared with 55 per cent of women) believed that homosexuals should be treated as a normal part of society: the majority of men believed that homosexuality was immoral and that it endangered the institution of the family. Some LGBTI individuals report being unable to access medical care as some doctors will refuse to see patients they believe to be LGBTI based on their appearance.[33]
[32] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
[33] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
215. There is also evidence that LGBTI people have been prohibited from conducting public events, including a pan-Arab conference on LGBTI rights in Beirut in 2018. There was also a travel ban on foreign attendees of NEDWA, including Human Rights Watch’s regional LGBTI researcher and other nationals of Canada, Egypt and Iraq.[34]
[34] United States Department of State, 2019 Country Reports on Human Rights Practices: Lebanon, 2020
216. DFAT has reported that Beirut is a ‘relatively open’ environment for LGBTI individuals who are ‘able to maintain a degree of anonymity’.[35] According to DFAT:
Gay bars exist, along with specific support groups for LGBTI individuals, although these generally keep a low-profile in an effort to avoid negative attention (see also Civil Society Activists). Local sources suggest that many LGBTI individuals either do not identify or keep a low profile in order to avoid societal and official discrimination and, potentially, violence. While local sources noted that individuals can move to other areas – particularly to Beirut – in order to seek safety, it was largely dependent on the individual’s financial ability to move from one area to another; and on the willingness of the receiving areas to accept them.
While an LGBTI individual may be able to lead a relatively open life in Beirut, they would still need to keep a low profile and would remain at risk of societal and familial ostracism.[36]
[35] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
[36] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019, para 3.60-3.65

217. No provisions of law provide antidiscrimination protections to LGBTI persons based on their sexual orientation, gender identity or expression, or sex characteristics.[37] Victims of abuse by the authorities or community are generally reluctant to make a formal complaint due to a fear of additional stigmatisation.[38] The United States Department of State Report in 2020 has stated that victims of gangs do not report abuse for fear of reprisal. In terms of government action and discrimination, the report stated:
The government did not collect information on official or private discrimination in employment, occupation, housing, statelessness, or lack of access to education or health care based on sexual orientation or gender identity. Individuals who faced problems were reluctant to report incidents due to fear of additional discrimination or reprisal. There were no government efforts to address potential discrimination.[39]
[37] United States Department of State, 2019 Country Reports on Human Rights Practices: Lebanon, 2020
[38] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
[39] United States Department of State, 2019 Country Reports on Human Rights Practices: Lebanon, 2020

218. The DFAT assessment indicates that there is a moderate risk of official and societal discrimination and violence towards LGBTI individuals. While the risk is less in Beirut, there is still a risk of societal and familial ostracism and violence, unless the applicant were to maintain a low profile. DFAT states that if a person has other vulnerabilities, such as living in a socially conservative area, the risks are higher.[40]
[40] Department of Foreign Affairs and Trade, DFAT Country Information Report – Lebanon, 19 March 2019
219. The Tribunal has noted the court judgment on Article 534 and the wide participation in protests which does indicate some improvement in tolerance of LGBTI people. However, based on the country information set out above and considered cumulatively, the Tribunal is satisfied that the applicant faces a real chance of serious harm in his hometown Tripoli, regarded as a particularly conservative city,[41] and throughout Lebanon, including Beirut, even though there is more tolerance in Beirut.
[41] The Conversation, Tripoli: the Lebanese city of contrasts that's now the bride of an ongoing uprising (theconversation.com), 5 November 2019
220. The Tribunal accepts that there is a chance of harm from his father and brothers who are traditional and conservative. The applicant is not close to his father who he has described as being hard on him when he was young, slapping and verbally abusing him. His father is a high-profile [Occupation 2], which may exacerbate his hostility towards the applicant due to the shame the applicant would be perceived to bring upon the family. The Tribunal also accepts that there is a real chance of serious harm from other community members and the authorities, based on the sources above. As a vulnerable person who has had significant psychological trauma, not only because of his journey towards accepting his sexual orientation, but also because he has been the victim of violence in Australia, the applicant may well be more vulnerable to harm. The Tribunal is satisfied that the serious harm may include physical harassment, ill-treatment, serious psychological harm and lack of access to medical services. The Tribunal is satisfied that the applicant’s sexual orientation would be the essential and significant reason for the harm. The Tribunal is satisfied that the harm faced would be systematic and discriminatory in that it would be targeted to harm the applicant because of his sexual orientation.
221. The Tribunal has considered if effective protection measures are available to the applicant in Lebanon as required by s.5LA of the Act. The Tribunal is not satisfied that such measures are available given that the state sometimes perpetrates the harm against LGBTI individuals and lack of protective mechanisms, discussed earlier.
222. For these reasons, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group of homosexual men in Lebanon. The applicant therefore meets the refugee criterion.
223. As the Tribunal has found that the applicant meets the refugee criterion, it is not necessary for the Tribunal to determine the claims made on the basis of the data breach or implied political opinion.
CONCLUDING PARAGRAPH
224. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
225. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Jane Marquard
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.
…

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.
…

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.
…

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.
…

[2021] AATA 1044

29 March 2021

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