1512625 (Refugee) [2017] AATA 2889 (15 November 2017)

Last Updated: 19 January 2018

1512625 (Refugee) [2017] AATA 2889 (15 November 2017)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1512625

COUNTRY OF REFERENCE: Lebanon

MEMBER: Rodger Shanahan

DATE: 15 November 2017

PLACE OF DECISION: Sydney

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

Statement made on 15 November 2017 at 1:50pm

CATCHWORDS
Refugee – Protection Visa – Lebanon – Forced recruitment – Militia groups – Fear of violence – Witness credibility – False information provided

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant who claims to be a citizen of Lebanon, applied for the visa [in] January 2015.

CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.
4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS AND EVIDENCE

Protection Visa Application

9. The applicant claimed that he was born at [Suburb 1] to Sunni parents and is [details of family]. Although there was fighting in his area ([a terrorist attack occurred] about 600 metres from his home and he was at the [location] when it was targeted), he had always been a peaceful person.
10. There was a group of people who sought to recruit Muslim men to fight with them and to send them to Syria to fight with Jabhat al-Nusra and Islamic State. A lot of pressure was put on him using money and the promise of protection and weapons. When he said he wouldn’t join they began to intimidate him. He lived in fear as a result and wouldn’t go out at night. About July 2014 his car was attacked and [damaged]. In October he was returning from work and a shot was fired towards him.
11. He couldn’t tell his family so they wouldn’t become anxious. Once, fighting broke out between the Islamist group and the army that lasted for [number] days during which artillery and helicopters were used. They remained locked in their homes for [number] days. The situation became so intolerable that one wouldn’t know whether they would return home after leaving.
12. He couldn’t relocate because of the sectarian nature of the country and the fact that it is small. Beirut is also too expensive to move to.

AAT Hearing

13. Going through the documents it was put to him that there were two title deeds – he said that one was clearer than the other and that one had been given to the Tribunal today. He was asked about the computer-generated title deeds the Lebanese government provided, he said that he needed an account name and the property wasn’t in his name. It was put to him that it was open to all to use. He claimed that it was probably available but no one in Lebanon used it. He said that he didn’t have an account number and it was put to him that he could open one. He said he would follow it up.
14. He agreed that the property title he had given the Tribunal was where he lived. It was put to him that this said [Suburb 2] and this was separate to [Suburb 1]. He claimed that Tripoli was the city and [Suburb 1] was a suburb. It was put to him that the Tribunal understood and the reason he was asked to provide the title deed was to ensure that people who claimed to be from [Suburb 1] were actually from there.
15. It was put to him that the first deed given didn’t translate the word [Suburb 2] but the one handed in before the Tribunal did translate [Suburb 2]. This was the cadastral (local) area and it meant that the deed said he was from [Suburb 2] which was a different area to [Suburb 1]. He claimed he was born and lived in [Suburb 1] and they voted in [Suburb 1], this was the first he had heard of [Suburb 2]. It was put to him that in Lebanon people voted in the area they were registered in (where they were born), so they could live somewhere different.
16. He claimed the area they lived in was called [Suburb 1]; he didn’t even know where the border was. He was asked if he could produce anything that showed he lived in [Suburb 1], as the only document he provided (the deed) showed him as being in [Suburb 2]. He claimed he could ask the mukhtar to write a letter and he had a drivers licence. It was put to him that mukhtar’s letters didn’t carry much weight with the Tribunal but anything he could provide that showed his residence as being in [Suburb 1] would help as the only document so far showed him as being from [Suburb 2].
17. He claimed that if he returned to Lebanon he may be harmed by groups that control the area. One was led by [name]. He had stood up to them before and if he returned they may bash him because he wouldn’t go to fight in Syria or join the fighting between [a group] and [another group]. Asked what groups they wanted him to fight for in Syria, he claimed he didn’t know how they were organised.
18. Once he refused their approaches they followed him and then sent someone to threaten him. This was in the middle of 2014 until the end of the year when he left. At first he would simply be invited to join them, then it became more difficult to move around. They put more pressure on him and threatened him. Sometimes they came every few days, or weeks, or every few months. Sometimes they just openly carried weapons and stood outside his house in [Suburb 1]. They wouldn’t knock on his door.
19. Asked what the purpose of doing this was, he claimed it was to scare him. During mid- to end-2014 he was approached mostly in July but around four times. Asked what happened every time he said no, he claimed that they threatened him when they knew he wasn’t going with them. Asked how they attacked him, he said they just pushed and shoved him. They wanted him to fight against [another group] because he was from [Suburb 1]. It was put to him that he was from [Suburb 2] and he replied that he didn’t know where that began.
20. He had a brother (now [approximate age]) and [a number of] sisters. His brother had not been approached as far as he knew. Asked why he hadn’t been given he was of prime fighting age, and the applicant had, the applicant claimed he didn’t know why this was the case. His brother worked [in an occupation] and was working five days a week. Since he had left nothing had happened to his family as far as he knew but they would never tell him if it had.
21. He was asked why, when they approached the applicant in 2014 and he refused the groups didn’t just switch to his brother, he claimed that he didn’t know their thinking. He thanked God they didn’t approach his brother. Country information was put to him that the security plan in place in the north had been effective in stabilising the area from late 2013. He was asked how the groups could openly display weapons and hassle him with the Lebanese military around at the time. He claimed the Lebanese military came but stayed on the border of [Suburb 1]. Even so, the problems remained.
22. Asked the circumstances in which he was approached by the gang, he claimed that it was mainly returning from work. It was put to him that there were only four occasions and he said they were all when he was returning. He had a car but was parking about [a distance] outside the area and walking home at dark so no one could see him walking home. He didn’t want to be seen. Asked how they saw him four times, he claimed that there were only two ways he could reach home so was seen. It was put to him that this wasn’t much of a plan given there were only two ways to go. He was asked why he was only stopped four times over six months given they knew one of two ways he had to go to get home. Their efforts to recruit him didn’t appear to be very serious.
23. He claimed sometimes the whole family would leave to their [relative]’s for a few days or up to a week when the fighting got too serious. It was again put to him that being stopped four times with no other targeting of his family or house (so without escalation) didn’t appear to constitute much of an effort. He claimed he was fearful and always watching his back. It was put to him that this was a strange way of getting someone to join them – they neither left him alone nor escalated the hassling. It appeared pointless.
24. Asked why he didn’t relocate if things were so bad, he claimed that it wasn’t easy. They didn’t have enough money to move. It was put to him that only he had to move, and he had [experience in his trade] so could survive. He claimed he was helping the family finance. It was put to him that his brother worked and he said he didn’t earn enough. Asked why he didn’t move to his [relative]’s place and use his car to work in Tripoli.
25. He claimed it took him [time] to get to Tripoli. Queried about this he claimed it too [a shorter time] to get to Tripoli. He then said that there were [a number of] families in his [relative]’s house. It was put to him that she could help him find a cheap rental [near her] – he then said it was far away from work and his family and the traffic was bad. It was put to him that it was open to question what fear he had if he didn’t want to move because of the density of the traffic making it hard to get to work.

CONSIDERATION OF CLAIMS AND EVIDENCE

26. The applicant first arrived in Australia on a [temporary] visa [in] May 2012 and travelled on two more occasions, the last of which was [in] December 2014. He applied for protection [in] January 2015. I have sighted his passport and accept that Lebanon is the applicant’s country of nationality.
27. The applicant is a [age] year old single Sunni Muslim from the Tripoli area. He claimed that if he returned to Lebanon he may be harmed by groups that controlled the [Suburb 1] area because he wouldn’t join them or go to fight in Syria with them.
28. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
29. I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he deliberately lied about his place of residence and fabricated his claims in order to be granted a protection visa.

Providing false information

30. I find that the applicant has deliberately provided false information on his protection visa application with regard to his place of residence. In his application (folio 47) he claimed that he had lived in [Suburb 1] from [his birth year] until 2014, and he continued to claim during the hearing that he lived in [Suburb 1].
31. Prior to the hearing he was asked to provide a copy of the land title deed for his residence (folio 27), and subsequently for the record to come from the on-line Lebanese government land title portal (folio 33). A translated copy of the title deed was received (folio 31) that simply gave the property area name as ‘Tripoli’ but at hearing an updated translation of the same document was given that gave the name of the residential area as ‘[Suburb 2] Tripoli’.
32. While I accept that the applicant was born in [Suburb 1], he and his family reside in [Suburb 2]. This is a completely separate area to that of [Suburb 1]^[1]. As there is no other area within Tripoli that is also known as [Suburb 2] the areas referred to as [Suburb 2] and [alternative name for Suburb 2] are one and the same.
33. I have taken into account the Lebanese military identity card and drivers licence (folios 43/44) that note his registration as [Suburb 1]. I note however, that for domestic political reasons people are registered as per their village of origin (normally that of their or their parents’ birth) and not their place of residence. Lebanese are required to vote at their place of registration, rather than where they live.^[2] The title deed however, shows where the applicant’s family owns property and, given it is the only title deed given I am satisfied that this is the applicant’s residence. I am therefore satisfied that the applicant is a resident of [Suburb 2] and not [Suburb 1].

Consequential Issues

34. Because I do not accept that the applicant resides in [Suburb 1], it follows that he was not targeted there by Islamist gangs that controlled [Suburb 1], was pressured to join them or to fight in Syria, he never stood up to them, his car was not damaged, a shot was not fired at him, he was not assaulted by the gang, he didn’t have to park away from [Suburb 1] and walk there to avoid being seen, that he wouldn’t go out at night because of the fear he felt, the family was locked in their house for [number] days because of the fighting or the family didn’t have to move to his auntie’s house to avoid the fighting. Because he doesn’t live in the area in which he claimed or ever had contact with the groups as he claimed, it follows that they wouldn’t target him on his return to Lebanon.
35. Because the claim relies on the applicant’s oral testimony which I have found lacks credibility, I also do not accept that the applicant was [close to the site of a terrorist attack] when it was targeted in [an attack].
36. Having considered the applicant’s evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

Complementary Protection

37. Because I do not accept that the applicant lives in [Suburb 1], has been hassled by Islamist group to join them or fight in Syria, been targeted in any way or had to change his personal routine in any way to avoid interest from such groups, or has been or fears being caught up in incidental violence I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
38. Therefore, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that she will suffer significant harm.

CONCLUDING PARAGRAPHS

39. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
40. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
41. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

42. The Tribunal affirms the decision not to grant the applicant a protection visa.

Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

...

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a) for the purpose of obtaining from the person or from a third person information or a confession; or

(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c) for the purpose of intimidating or coercing the person or a third person; or

(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
receiving country, in relation to a non-citizen, means:

(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
...

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 them 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 illtreatment 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 wellfounded 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 wellfounded 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

...

(2A) A noncitizen will suffer significant harm if:

(a) the noncitizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the noncitizen; or

(c) the noncitizen will be subjected to torture; or

(d) the noncitizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the noncitizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a noncitizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the noncitizen to relocate to an area of the country where there would not be a real risk that the noncitizen will suffer significant harm; or

(b) the noncitizen could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen 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 noncitizen personally.

...

---

^[1] [information deleted].
^[2] https://partyoflebanon.org/civil-registration/, accessed 10 November 2017