1416478 (Refugee)

[2016] AATA 3383

1416478 (Refugee) [2016] AATA 3383 (19 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416478

COUNTRY OF REFERENCE:                  Syria

MEMBER:Rodger Shanahan

DATE:19 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2016 at 2:41pm

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] December 2013 and the delegate refused to grant the visa [in] September 2014.

3. The applicant appeared before the Tribunal on 18 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [name] and[name]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

   CLAIMS AND EVIDENCE

   Protection Visa Application

4. The applicant claimed that she was a Syrian national, had given her Syrian passport to the embassy in Canberra to be renewed and when it was closed she was unable to get it back.  She had been living in [Country 1] since [year] where she had gone to marry her husband who had since died.  She claimed that she could not go to Syria as she would face death there because of the war.

   RRT Hearing

5. The applicant claimed that she left Syria when she was [age] and stayed there until she came to Australia.  She had left her son there but he died in 2008 and she didn’t return.  She claimed she could not return to [Country 1] as she has no citizenship.  She had applied to return to [Country 1] two or three months previously but they said she could not. She had no relatives there, only friends.

6. Asked what her status was when she left [Country 1], she claimed that her son was [Country 1 citizen] but she was not.  Asked what her residency was, she claimed that she had permanent residency.  Asked if she still had it, she claimed that she couldn’t return and didn’t have permanent residency.  Asked how she knew this, she claimed she had no ID and no citizenship.

7. She was asked if she was aware there was a difference between permanent residency and citizenship, she claimed she had neither.  The [Country 1] consulate said she couldn’t return as she didn’t have a mother or close relative; they never asked if she had permanent residency.  She had a current Syrian passport that she had renewed not long ago.  Asked why she renewed it, she claimed she didn’t know, but didn’t have any documents and Immigration told her she should get some.  She then said she didn’t know why she got her passport.

8. Her son was married in [Country 1] and had one son who was not about [age] years old.  She wasn’t sure when her grandson was born but he was now in  [Syria].  Her daughter-in-law had returned to Syria after her son died.  She had been told that her grandson was there by people who she knew from there and had spoken to her.  She didn’t speak to her grandson as she had a bad relationship with her daughter-in-law.

9. She hadn’t returned to [Country 1] for her son’s funeral as she couldn’t afford it.  She received a pension from the [Country 1] government but didn’t own any property.  Asked if she had any business interests she claimed that when she was young she used to sell [products] in [Country 1] in order to survive.  She finished doing this before she came to Australia.

10. She wanted to find out whether she was still receiving her [Country 1] pension and when it was put to her that she had told the Tribunal that she did receive it, she claimed that she had written a power of attorney to a lady to receive it but had yet to receive anything.  She had sent it three months ago but the woman only received it the day before the hearing and she hadn’t had a chance to call her yet.

11. She last received some pension money five years ago because a lady brought some money here.  The applicant had a bank account in [Country 1] where the money went into.  Asked why she didn’t just arrange a bank transfer to her account in Australia she again said that the woman brought cash.

12. It was put to her that if she was receiving a pension then she must have had enough money to return to [Country 1] for her son’s funeral.  She claimed that eight years ago she didn’t have enough money (2008) as her son was using her money.  She was asked why she hadn’t had any need for money in the five years since her friend had given her the money.  She had given a power of attorney to the woman as the [Country 1] government wanted proof that she was still alive.

13. She was asked if she had an original birth or death certificate for her son and she claimed she didn’t.  She was asked if she could get them and as advised that there was an English language translation of a death certificate that she had submitted but there was no original.  The death certificate said that her son was single.  She said he had been married in Syria and wasn’t sure if he had registered the marriage on return.  Asked why he wouldn’t, she claimed that she didn’t know. 

14. She was advised of s 424AA and was advised that DIBP had made inquiries and as at July 2014 she held [Country 1] permanent residency.  Because of this, and the fact that she had a current, valid Syrian passport she had the ability to travel to [Country 1] if she so chose and to validly live there.  She had not raised any claims to fear persecution in [Country 1] therefore she should be able to live there if she chose to exercise that right.

15. She claimed she would like to but had no one there, as she had a sister in Australia.  She was advised that she needed to face serious harm in [Country 1] to establish a refugee claim, and there were a range of visa classes if she wished to live in Australia.  Her claim for refugee status rested on her claim that she couldn’t return to [Country 1] and would have to live in Syria – this wasn’t the case however.

16. She was also advised under s 424AA that during her DIBP interview she had claimed that she had received a pension but that it had stopped, she went to the [Country 1] consulate to check but she went there, they wanted money and she refused so her pension was subsequently stopped after her son died.  She had claimed today however that she continued to receive her pension in [Country 1] and five years ago a woman had brought a sum of this money to her.  This was inconsistent.

17. She claimed that when her son was alive he had the power of attorney but it stopped when he died and she only gave a new power of attorney three months ago.  It was put to her that this delay was strange given she claimed she was under financial difficulty.  She claimed she didn’t know how to get to the consulate and needed someone to help her.  She had fixed this situation now.    

18. Asked who brought the money to her and who she gave the power of attorney to, she claimed that it was a woman she knew in [Country 1].  It was put to her that she claimed she knew no one in [Country 1] yet there was a person who brought her money and she trusted enough to sign over power of attorney to, and she claimed this person lived with her own family.  She then claimed she only had friends in [Country 1].

19. Asked how old her son was when he died, she said he was[age]. It was put to her that the certificate said he was[age].  She claimed that she was not really here (referring to her presence in an emotional sense).

20. The witness presented evidence that he took the applicant to the [Country 1] consulate to see if she could return to [Country 1] and they said she couldn’t as she was not a citizen.  He claimed that she used to be a permanent resident but this lapsed after three years and she couldn’t go back, or even be given a tourist visa.  He had been trying to get funds for her medications from friends and the like.  Asked about the pension, he claimed they had just tried to get her this pension.

21. Her pension had been stopped three years ago as she had been in Australia for too long.  Prior to that her pension was sent by a friend via Western Union or people traveling to Australia.  Asked if they had tried to get original birth and death certificates, he claimed that he had gotten the original.  Asked how he got it, he claimed someone brought a copy by hand to Syria and then her brother came from Syria and brought it to Australia.  He was asked why they didn’t get it through the [Country 1] consulate or official channels and he claimed that it worked that people were traveling in the correct direction so they could get the document from the registry in [Country 1] to Australia.

22. It was put to him that country information that residency can be renewed at any consulate and he claimed that the consulate said they couldn’t and she had lost it in 2009.  He had no document from the consulate to this effect.  It was put to him that she had permanent residency with effect July 2014 and he claimed he had been told otherwise.

23. He confirmed that they received the death certificate by hand from someone via [Country 1].  The applicant claimed that she couldn’t remember.  Her witness then said someone called [name] had brought it.  Her sister then appeared as a witness and said that the applicant had no one to support her in Syria or [Country 1] and that she wanted the applicant to stay in Australia.

24. The applicant claimed that she had not renewed her permanent residency status since being in Australia and she claimed that she didn’t know how and was distraught after she lost her son.   

    CONSIDERATION OF CLAIMS AND EVIDENCE 

25. The applicant arrived in Australia [in] March 2007 on a tourist visa.  An application for a residence visa was refused [in] June 2010, was affirmed on 9 July 2012 by the MRT.  She lodged a protection visa [in] December 2013. 

26. The Tribunal has sighted her valid Syrian passport that was renewed [in] 2014 as proof of her identity.  Although she claimed that she had no right to travel to, or reside in [Country 1], [Country 1] government records indicate that she arrived in [Country 1] in April [year] and still held permanent residence (PR) status in [Country 1] as at [July] 2014.  She claimed that she has lived in [Country 1] since she was[age].  Given the existence of her valid Syrian passport, the Tribunal considers Syria as her country of reference.

27. The applicant is a [age] year old widowed Syrian national with [Country 1] PR.  She claimed that if she returned to Syria she would face death there because of the war. She claimed that she had no right to travel to [Country 1].

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 find that she fabricated her claim in order to be granted a protection visa.

    Situation in Syria

30. The applicant has spent the vast majority of her life in [Country 1] and given that she has not returned to Syria, there is no indication that she has any ongoing links to the country.  Given that there has been a bloody civil war raging there for the past five years with no likelihood of stopping in the reasonably foreseeable future, I am satisfied that the applicant faces a real chance of serious harm if she were to return there.

    Status in [Country 1]

31. The Tribunal has then turned its attention to her ability to enter and reside in [Country 1]. I am satisfied that the applicant has an existing right to enter and reside in [Country 1], courtesy of her PR status. Her own evidence on the issue was contradictory.  She claimed variously that she did and that she didn’t have PR, and her witness claimed that her PR lapsed after three years (2010) and the [Country 1] consulate had informed them that it couldn’t be renewed. He had no documentary evidence to support this.

32. Country information[1] indicates that [Country 1] permanent residency is lost if the resident is absent from [Country 1] for more than two years, but that it can be renewed.  Given that the applicant’s PR, would have lapsed in March 2009, the fact that she still had permanent residency in July 2014 (folio 79) indicates that she has an ability to retain it and continues to do so. 

    [1] >

    Although she has not claimed to fear persecution in [Country 1], she had claimed that she was unable to return because her son was dead and she knew no one.  To begin with I am not satisfied that her son is deceased.  The applicant has credibility issues and the evidence to support the claim regarding her son’s death relies largely on her oral claim.

33. I lend little weight to the document that has been provided that is claimed to be a [Country 1] death certificate.  To begin with, the witness claimed that it had been received from the registry in [Country 1] then transported by hand to Syria and then brought by someone from Syria to Australia.  It lacks credibility that such a circuitous route would have been taken when it could have been easily posted direct from [Country 1].

34. There are also discrepancies between what the applicant had claimed and what appeared on the certificate.  Where the applicant claimed her son was married, the certificate described him as single.  Where she claimed he was[age], the certificate said he was[age].  I do not accept that the applicant’s son had failed to register his Syrian marriage on return to [Country 1].  Given his wife was Syrian, it would have had to have been registered for her to obtain PR.  The combination of these inconsistencies means that I am able to lend little weight to the document.

35. Regardless, she also has at least one friend in [Country 1] who is close enough to the applicant that she would entrust her to bring thousands of dollars in cash to Australia, and also to give power of attorney to. This would indicate a close level of ongoing friendship with someone in [Country 1]. Given that I am satisfied that she has both family and friends in [Country 1] she has ongoing links to that country, a valid passport to travel to it and the right to reside there I find that according to s.36(3) of the Migration Act Australia does not have protection obligations with respect to her.

36. I have also considered s 36(4), (5) and (5A) of the Act and am satisfied that the applicant will not suffer persecution in [Country 1] for reasons of race, religion, nationality, membership of a particular social group or political opinion, be returned to another country by [Country 1], nor does the applicant possess a well-founded fear of such a removal occurring.  She never claimed to fear serious harm in [Country 1], nor that she would be removed from the country, nor is there any independent country information to suggest that there is a real chance that such events would occur.

    Complementary Protection

37. While I accept that the applicant may face significant harm if returned to Syria, I am satisfied that the applicant is able to return to, and reside in [Country 1] and that in that country she has people who can support her.  I am therefore not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm. 

38. 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 [Country 1], 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

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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in 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 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.