1413210 (Refugee)

[2015] AATA 3322

1413210 (Refugee) [2015] AATA 3322 (20 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413210

COUNTRY OF REFERENCE:                  Syria

MEMBER:Rodger Shanahan

DATE:20 August 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 August 2015 at 1:26pm

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 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 Syria, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 1 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CLAIMS AND EVIDENCE

   Protection Visa Application

5. The applicant claimed to be an Alawite from [Homs], Syria.  The area has been destroyed by the war and he would be targeted by the Sunni population because of his religion.  He had been with his family in [Country 1] however their family’s working visa expired in May 2014, after which time they would be illegal. 

   RRT Hearing

6. The applicant claimed that if he were to return to Syria he would be forced to join the military on arrival at the airport because he was of the Alawi faith.  He would be asked why he left [Country 1] to go to Australia.  He feared being harmed as an Alawi because he would have to defend the government and he would be killed if he was captured by any opposition group.

7. He also claimed there were lots of kidnappings of people returning from overseas because they were believed to be rich.  He did not know if this would be done by the government of the rebel groups. 

8. He came from Homs in Syria and studied in Damascus during primary and secondary school, as well as [a course] in Damascus.  He was also born in Damascus.  He claimed he lived in Homs after his [studies].  Asked to outline what years he lived in each location, he claimed that he went to Homs during holidays.  They rented a house in Damascus from 1974 until approximately 1990 and in Homs from 1990-94.  He claimed he had no family in Damascus.

9. It was put to him that this made him [a teenager] when he left Damascus yet he had studied [a course].  In his visa application he claimed he lived in Damascus until 1992.  He agreed he had lived in Damascus for 18 years and Homs for two years.  He was a practising Alawi but asked if he practised it in Australia, he claimed the religion didn’t have rituals.  He did not know if there were any Alawi groups in [his city of residence in Australia] and had not made any attempt to contact them.  He did not perform any group prayer or socialise with other Alawi groups in Australia.

10. He did not have his religion written on any documents but claimed that in Syria they would know by his name and his accent.  It was put to him that he didn’t take an oath on the Qur‘an, no written evidence he was Alawi and he had no contact with the Alawi community in [his city of residence in Australia].  He was asked if he could provide any evidence that he was Alawi. He claimed he could get a letter from people in the village attesting that he was Alawi.

11. He was asked what the rules for joining the Syrian army in terms of age limits and requirement for service.  He claimed that everyone able to carry a weapon was required to be in the reserve and it was focused on the Alawis.  It was called the National Security Service but wasn’t sure of the exact term.  Asked if he knew the age limits for service, he claimed that it was up to 60. 

12. Asked how he knew this given he feared being made to join the army, he claimed this was what he heard.  He was advised that his fear had to be well-founded and the Tribunal had to determine how he formed his fear and it was reasonable to expect that he would know what the rules for conscription in Syria were given he feared them.

13. He claimed he didn’t know the rules and now there were no rules and they were taking anyone who could carry a weapon as Islamic State was expanding quickly. He was asked why he feared being conscripted given he didn’t know what they were and hadn’t tried to find out. He claimed he had said what was happening currently.  He claimed there was no way of finding out what the rules were as everything was hidden in Syria.

14. Asked why he thought he would be made to carry a weapon, he claimed that he would be forced to do so.  He was asked why the government didn’t have the right to conscript him if he was within the conscription age and he agreed they did have the right but Syria was a big mess currently because of the civil war.

15. He was asked whether he had tried to buy himself out of his military service obligation and he said that everyone able to carry a weapon went to the reserve straight away.  Asked if he knew legal ways of avoiding conscription by paying money he claimed he did and one had to be overseas for five years and then one had to pay money (approximately USD 5000 a few years ago).  This only applied to people living overseas. 

16. Asked why he couldn’t do this, he claimed he had done this several years ago.  He didn’t have a document showing this currently but he had paid money to avoid service but if he went back he would go back to the reserve.  Asked why this would be the case as it defeated the purpose of buying oneself out of military service, he claimed this wasn’t written but if there was a war they take everybody.

17. He confirmed that he would still be liable for military service if he returned to Syria.  He didn’t know what age he would have to serve to but ‘they’ said everyone had to carry a weapon.  Country information was put to him that the upper age limit for service was 42 years old and he was currently [age].  He was asked if he had country information to support his claim that people over 42 or had bought out their military service still had to serve in the Syrian military.  He claimed he didn’t have such information but was asking for protection.

18. It was put to him that he didn’t appear to have an obligation for military service because he had paid it out and he would be over 42 by the time he returned to Syria.  He was asked to provide any information that ran counter to what the Tribunal believed to be the case.  He claimed he had no information but believed they would force him because he had lived overseas and came to Australia.

19. Asked why he couldn’t return to [Country 1] he claimed his visa had expired and his wife had tried to get him a visitor’s visa but [Country 1 was not] accepting applications from Syrians currently.  He left because his contract had finished.  He had been responsible for [a certain area] and [there were issues] and the general manger decided not to renew his contract as a result. 

20. He had not mentioned this previously but the staff had told him after he left that this was the reason.  He had a contract and had given a copy to the lawyer.  The adviser stated it had been provided in the submission but he was advised that the Tribunal only had a letter of offer and not a contract.  Asked about his appearance at the [Court] he claimed he was given fines but postponed the hearing; there had been another court date given but it hadn’t yet been heard.  Asked why it hadn’t given it had been two years, he claimed it was a [fine] and it was on hold because he was put of the country. 

21. He was telling them the [workplace] needed to pay the fine.  Asked whether he had any idea that this may have been the reason he was fired he claimed the HR manager told him privately when he went back to [Country 1] last time but he hadn’t wanted to tell him in front of the employees.  The HR manager told him in April 2014.  He didn’t think these were the reasons his contract had not been renewed and he was asked why he didn’t and told the Tribunal needed to assess his credibility.

22. He claimed he thought of many reasons; the war in Syria impacted on Syrians.  He didn’t mention about being caught with [details deleted] as an [occupation] and going to court to anyone prior to the Tribunal.  He only knew this at the end when he went back to [Country 1] and spoke to the manager who told him this was the reason.  The applicant claimed he had never thought that this could have been the reason previously.

23. He was fined around 2013 and just went to an appeal office rather than the court.  His family no longer have current visas.  [Country 1] is currently helping Syrian women and families in [Country 1] with some arrangement.  People without visas have to pay fines – they have paid fines prior to this arrangement coming into place.  They had not paid fines since because they have been given an exemption; he had read about the exemption in the newspaper.  They had not received official notification but had asked and been told that Syrians did not currently have to pay.  He was asked to provide some country information that would support the claim regarding the exemption.

24. His wife survived financially on their savings from [Country 1].  He was asked for a copy of the bank statements from [Country 1] from the time he left [Country 1] until the present time.  Asked about renewing his [Country 1] visa, he claimed he had tried to apply for a few positions but they had become stricter regarding employing Syrians.  There were limited jobs for [his occupation] in [Country 1] and had tried to apply for lower-ranked jobs but he was refused because they said he was over-qualified.  He was asked why [they] would turn down a well-qualified person who went to a lesser job.

25. He claimed they would be suspicious of why the person left his last job.  It was put to him that the [workplaces] could simply check his references.  He was asked if he had any evidence he had applied and he claimed he just handed his reference in by person.  It was put to him that it was reasonable to believe he would have received an email reply from [workplaces] in [Country 1] and definitely from those in [another country].  He claimed he sent his CV with his friends who went to [that country] and he had put his CV on the website.

26. When he came to Australia in December 2013 he wanted to see his friend and see the country, check out [the workplaces] out of professional curiosity.  He didn’t come to seek work, he wanted to see the country and look at the [workplaces].  He had family in Syria; they were living in Homs.  His father, mother and [siblings] lived there – one [sibling] lived in Latakiya.  They didn’t feel safe there though.  It was put to him that they hadn’t moved elsewhere or to Lebanon so they must have felt safe.  He claimed his parents were unable to walk. 

27. He was asked why they hadn’t been moved to Latakiya and he claimed that it wasn’t safe there because of explosions.  He was asked why his [sibling] hadn’t moved if it wasn’t safe and he claimed lots of people lived there because there was nowhere to go and even Lebanon wasn’t secure.  It was put to him that the member had been in Lebanon and it appeared secure.  He claimed there was no food there and Syrians suffered in refugee camps there.

28. He was asked why he never mentioned in his protection visa application that his employment in [Country 1] had been ceased.  He claimed he had only found out recently.  It was put to him that in his visa application statement [in] January 2014 he had mentioned that he had a working visa in [Country 1] until May 2014 yet he hadn’t mentioned that his employment had ceased. He repeated that he had found out recently.  He claimed that he had his contract ceased in November 2013 and was asked again why he didn’t mention it in the statement but said he had talked about it.

29. Asked if he had tried to renew his [Country 1] visa, he claimed he needed a sponsor.  He had not tried to source a visa to return currently.  His wife had tried to lodge a visitor’s visa application three times but they refused to accept them.  The [Country 1] Embassy told him that visa applications had to be lodged in [Country 1] and couldn’t be done in Australia.  This occurred in March 2015.

30. He was advised about s 424AA and it was put to him that during his DIBP interview he claimed that his contract had not been renewed because the [Country 1] wanted to decrease the number of Syrians and a new [person] had been brought in.  During the hearing however, he claimed he had been [fined] and was trying to get the [workplace] to pay the fine.  His failure to mention the [issue] previously may call into question his credibility.

31. After an adjournment the applicant was asked about his 25 June submission in which it said that the applicant had an outstanding obligation for service in Syria when it appeared that he didn’t.  The advisor claimed that this showed a difference between joining the regular military and the reserve and he had to join the reserve within age limits.  Asked what the limits were, he claimed they weren’t age limits but applied to everyone who could carry a weapon.  He was advised that this appeared not to be the case and was asked to provide some country information to support this claim. 

32. The applicant claimed a national defence group had been established in the last few years.  It was put to him that the group was voluntary and not conscripted, people could serve in their local area only and were not obligated to serve in the military as a consequence.  It was a voluntary pro-government militia with incentives to join. He claimed they carried weapons, manned checkpoints, kidnapped people and forced people to join them.  He was asked to provide evidence of this as the Tribunal was unaware that the group carried out such actions.

33. In response to the 424AA query, the applicant claimed he only heard about the real reason for his dismissal after his interview in March which is why he didn’t have it in his mind.  He didn’t think that [details deleted] would be an issue in his dismissal.  The adviser clarified that the applicant only found out on return to [Country 1] and speaking to the HR manager about the real reason. 

34. Asked why he wasn’t informed by email or telephone and why he had a face to face meeting with the HR manager in the [workplace] for which he no longer worked.  If he had such a good relationship with the HR manager he was never told the real reason by him until five months after the event.  He claimed the HR manager was worried about telling him but did so once he realised the applicant was overseas.   

35. The adviser claimed that the letter of offer was the contract requested and it was put to him that the letter specifically stated it wasn’t a contract and that one would be issued, and that he had been asked previously to provide a copy of the contract.  It was the Tribunal’s understanding that a copy of the contract had to be lodged with the [Country 1] authorities.

36. The advisor also claimed that his applicant would be part of a group of Syrians returning from overseas; he was asked to provide country information that showed this to be the case and why they would be targeted.

    CONSIDERATION OF CLAIMS AND EVIDENCE

37. The applicant arrived in Australia [in] August 2013 on a visitor’s visa.  He returned to [Country 1 in] September 2013 before returning to Australia [in] December 2013.  He applied for a protection visa [in] January 2014 and returned to [Country 1] between [April] and [May] 2014.

38. The Tribunal has sighted his Syrian passport as proof of his identity.  Although he claimed to have lived in [Country 1] since 1994, he is a Syrian citizen and holds a Syrian passport and his claim will be assessed using Syria as his country of reference.

39. The applicant is a [age] year old married Syrian.  He claimed that if he returned to Syria he would be forced to join the military, where he would be killed if captured by Sunni rebel groups, and that he would be kidnapped because he was returning from overseas and would be considered rich.

40. To the extent that it is relevant I have taken into account the DFAT Country Assessment on Syria.

41. 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.

42. 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 find that he fabricated his claim in order to be granted a protection visa.

    Requirement for military service

43. I do not accept that the applicant would be liable for military service on return to Syria.  To begin with, he never raised this as an issue in his protection visa application (folio 84) and he has travelled to Syria numerous times since moving to [Country 1] without being made to serve his military obligation. 

44. When he was asked what the requirements (particularly the age limits) for military service were in the Syrian army, he was vague.  He claimed variously that everyone capable of carrying a weapon was required to be in the reserve, that it was called the National Security Service (although he didn’t know its exact name) and that the age limit was 60.  He later said that he didn’t know the rules and later that now there were no rules.

45. He subsequently admitted that he had paid USD 5,000 several years ago to buy himself out of his military service obligation, which was open to people living outside the country.  Not only had he failed to mention this previously, it shows that he is no longer required to render military service and illustrates a knowledge of the military service system that he alleged he didn’t know the rules of.

46. Country information indicates that military service requirements (including service in the reserves) apply to people between the ages of 18 to 42[1], which is different to the claim made by the applicant who said that reserve service lasted until the age of 60.  The applicant has bought his way out of military service and therefore this rule doesn’t apply to him, however even if it did he [will be past the age requirement] and would be exempt regardless.

    [1]   ‘Syrian regime pursues draft dodgers’, al-Monitor, 22 December 2014.

47. I do not accept that he would be called up anyway, given country information indicates that while Syrian authorities can declare a state of emergency to mobilise all males between the ages of 18 and 42 this only applies to those who have completed their military service (my emphasis added).[2]    Given the applicant has never completed any military training he would not be liable for call-up.

    [2] ‘Syria: Compulsory military service’, Immigration and Refugee Board of Canada, 13 August 2014 >

    Neither would the applicant be called up for duty in the pro-government militia known as the National Defence Force (referred to as the National Security Service by the applicant).  Country information indicates that it is a volunteer force where young men are encouraged to volunteer in exchange for a monthly salary and a waiver for military service.[3] 

    [3] Christopher Kozak ‘The Assad regime Under Stress: Conscription and Protest Among Alawite and Minority Populations in Syria’, Institute for the Study of War, 16 December 2014

1. He was unable to provide any country information that anyone over 42 or who had bought out their military service would be forced to serve. I note that the country information provided by the applicant post-hearing says nothing about the age limits of conscription service in Syria, nor does it provide any evidence that people who have paid their way out of such service are targeted.  Indeed, such actions would defeat the purpose of being able to buy one’s way out of such service and is likely the reason it doesn’t occur.

   Kidnapping Fear

2. I also do not accept that the applicant would be kidnapped if he were to return to Syria.  As with his claim to be subject to military service, he never raised this concern about kidnapping as part of his protection visa application (folio 84).  There is some information that indicates kidnappings have occurred in the past although they appeared to have some links with political affiliations and in one case a company avoided the problem by moving into central Damascus.[4]  There have also been reports that some may be commercially motivated[5].

   [4] ‘Ransom, retribution fuel Syria’s kidnap spree’, Reuters, 21 February 2013

   [5] >

   There is no independent country information that indicates that Syrians returning from overseas are specifically targeted, and I note that none of the applicant’s family has been targeted for kidnapping even though they have lived there throughout the period of the conflict.

3. I lend little weight to the country information provided by the applicant post-hearing in support of this claim.  It consists of an article from the Saudi newspaper Okaz that cites a poll that appears to consist of speaking to two Syrians in Saudi Arabia who said their relatives were kidnapped in Syria.  It also cites the Syrian Observatory for Human Rights, which has come under criticism for its opaque methodology for determining figures regarding events in Syria.[6]   

   Targeted for religious reasons

   [6] >

   I do not accept that the applicant would be targeted by the Sunni population if he were to return to Syria.  Country information indicates that Alawi face a high risk of violence if rebel groups are able to target them, but that many Alawi are in state-controlled areas and thus mostly unable to be targeted.[7]  While the applicant claimed to have family in Homs he also has a [sibling] in Latakiyya, and the applicant was born and lived most of his life in Syria in a rented house in Damascus.

   [7] DFAT Country Report – Syria, dated 2 February 2015, p 13.

4. Both Damascus and Latakiyya are under government control and there are few formal restrictions to internally relocating[8] so it is feasible for the applicant to either live with family in Latakiyya or to rent accommodation in Damascus were he to return to Syria.

   Targeting as a failed asylum seeker

   [8] Ibid, p 20.

5. I do not accept that the applicant would be targeted as a failed asylum seeker on return to Syria.  Given the process is confidential in Australia however, there is no reason that the Syrian government would ever know that the applicant applied for protection in Australia.

6. I have taken into account the information provided by the applicant post-hearing that states failed asylum seekers may be singled out on return to Syria however lend it little weight.  I note that it pertains to those who have sought refuge in another country to escape a penalty in Syria and also dissidents, and former (my emphasis added) citizens with no known political affiliations.  None of these categories apply to the applicant. 

7. I also do not accept that he would be targeted as ‘part of a group of Syrians returning from overseas’ as the adviser claimed.  There is no country information that supports such a claim nor was any provided other than that referred to above, no categories of which apply to the applicant. 

8. The applicant also claims to be of the Alawi faith and therefore it is reasonable to assume that he would be believed to be sympathetic to the Alawi-dominated regime and not considered to be a dissident or opposed to the regime.

9. 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

10. Because I do not accept that the applicant is, or would be liable for military or militia service in Syria, that he would be targeted by the Sunni population because of his religion, the subject of a kidnapping attempt, or would be targeted as a failed asylum seeker or as a Syrian returning from overseas, I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm. 

11. I have taken into account the current security situation in Syria and, while there is currently active fighting in parts of the country I note that the applicant’s family have all remained resident in Syria which would indicate that they feel safe enough to maintain residing there.  I also note that there is nothing that indicates the applicant would be targeted personally and the risk faced by the applicant on return is one faced by the population of the country generally.

12. As a consequence I also 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 Syria, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

13. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

14. 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).

15. 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

16. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa.

    2.        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 under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    3.        If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    4.        In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 – to the extent that they are relevant to the decision under consideration.