1501066 (Refugee)

[2016] AATA 4277

1501066 (Refugee) [2016] AATA 4277 (2 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501066

COUNTRY OF REFERENCE:                  Syria

[Country 1]

MEMBER:Irene O'Connell

DATE:2 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(aa) of the Migration Act; and

(ii) that the second named applicant satisfies s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 2 August 2016 at 5.30pm

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

Scope of this review as it is a second application for a protection visa

1. This is a review of decision by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act) made [in] January 2015.

2. 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 that is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)) or on other ‘complementary protection’ grounds (s36(2)(aa)), or is a member of the same family unit as such a person and that person holds a protection visa of the same class (s36(2)(c)).

3. Only the first named applicant has made claims for protection. The second named applicant applies as a member of the same family unit of the first named applicant in accordance with s36(2)(c).

4. The Tribunal has considered the first named applicant’s claims for protection only in relation to s.36(2)(aa) that is the complementary protection criterion. The reasons are as follows.

5. The application under review was lodged [in] March 2014 and is a second application for Protection visa.   Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.

6. The applicants first applied for protection visas [in] September 2011. The application was lodged in respect to the refugee criterion only. [In] January 2012 a delegate of the Minister for Immigration refused to grant the applicants Protection visas on the basis that they did not meet the refugee criterion for a protection visa. The delegate’s decision was affirmed on review by the Refugee Review Tribunal on 21 May 2012. In affirming the delegate’s decision the Tribunal considered the applicant’s claims under the refugee criterion and under the complementary protection legislation which came into effect on 24 March 2012 in respect to all matters not finally determined by that date. 

7. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. A protection visa application determined prior to the introduction of the complementary protection criteria did not prevent the making of a further protection visa application on the basis of complementary protection claims.

8. In SZRNJ v MIAC [2014] the FMCA extended the principle established in SZGIZ v MIAC [2013] finding that even where the Tribunal (post 24 March 2012) has considered the complementary criteria in refusing an application, a second application will not be prevented if the original application was not based on complementary protection. This is the case of the current application.

9. The Federal Court in AMA15 v MIBP [2015] FCA 1424 upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a).

   Consideration of the first named applicant’s claim under complementary protection

10. The applicants appeared before the Tribunal on 14 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the first named applicant’s sister. The first named applicant made written submissions to the Tribunal.

11. On the basis of the applicant’s Syrian passport which she presented at the hearing the Tribunal finds that the applicant is a national of Syria. In her application she states that she is born in Homs; is of Armenian ethnicity and [Denomination 1] Christian. On the basis of evidence provided by   the applicant with her application and in particular a supporting letter from [Leader A] [from a specific denomination in Australia] the Tribunal finds that the applicant is Armenian and [a Denomination 1] Christian from Syria. The applicant fears significant harm should she return to Syria. She fears for her life and safety and has nowhere to live and no means of supporting herself. She also fears harm from Islamist extremists because of her ethnicity and religion.

    Complementary protection criterion

12. Under s.36(2)(aa), a person may qualify 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’).

13. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

14. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    DFAT Country Report on Syria

15. The Tribunal is required by Ministerial Direction 56 to have regard to any country information assessment prepared by DFAT expressly for protection status determination purposes. The DFAT Country Report on Syria dated 2 February 2015 indicates that Syria is currently engaged in a civil war  and “as at June 2014, 2.82 million people have registered with the Office of the UN High Commissioner for Refugees (UNHCR) in neighbouring countries, while 6.4 million people have been internally displaced. In Syria, 10.8 million people are in need of humanitarian assistance.”

16. In reference to the circumstances of Armenians and Christians the DFAT Report offers the following assessment.

    Armenians are generally perceived to be aligned with the state (as is the case for most Christians in Syria). Armenian-majority villages have been attacked by Islamist forces.

    Armenian contacts in Turkey have told DFAT that most Armenians that were able to leave Syria have done so. Those who remain have reported not feeling safe anywhere, including in state-controlled areas. For example, Armenian churches have been bombed, most recently in September 2014, and four Damascene Armenians, including two priests, were kidnapped in 2013.

    DFAT assesses that those living in state-controlled areas are unlikely to be targeted by the state on account of their religious identity. The key risk to Christians in state-controlled areas is in regards to perceptions of political allegiance.

    There are mixed reports of rebel treatment of Christians. There is evidence of Islamist rebels physically protecting Christians in some areas, and perpetrating violence against them, including executions of civilians, in others. This is likely due to the mix of Islamist groups in Syria. There have also been reports of the imposition of the jizya on Christians by Daesh (Jizya was a once-common tax imposed on non-Muslims in exchange for limited protection). DFAT understands that many Christians have fled rebel-controlled areas.

    As regards areas not under state control, DFAT assesses that Christians face a high level of discrimination in Daesh-controlled areas, as well as a high risk of violence if they are perceived to resist the imposition of Daesh’s interpretation of sharia. DFAT is unaware of Christians facing targeted violence by the PYD. Christians may be at risk of violence or persecution from other Islamist rebel groups. DFAT cannot make categorical assessments about the risk to Christians in areas under the control of other groups, which vary considerably.

17. On the basis of the DFAT Country Report assessment the Tribunal finds that there is a real risk that the applicant would face significant harm if she returns to Syria. The Tribunal further finds that given the level of civil unrest in Syria relocation within Syria is not a reasonable option for the applicant nor would the applicant be able to about protection from the authorities of the country such that there would not be a real risk that she would suffer significant harm on her return. The Tribunal also finds that the real risk that the applicant will suffer significant harm should she return to Syria is one that the applicant would face personally given her ethnicity and religion.

18. Accordingly the Tribunal is satisfied 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 she will suffer significant harm.

    Is third country protection available to the applicant

19. The applicant has however resided outside of Syria since [year]. In [year] she married a [Country 1] citizen by whom she had [number] children and resided in [Country 1] until her arrival in Australia in 2011.  In May 2011 she divorced her husband and in July 2011 she came to Australia with her [son] for the purpose of visiting her [relative] who resides in Australia.

20. The issue therefore arises as to whether the applicant has a right to enter and reside in a third country; the third country in this case being [Country 1]. The decision maker at first instance was satisfied that the first named applicant had a right to enter and reside in [Country 1].

21. Subsection 36(3) provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia. The right referred to in s.36(3) must be an existing right, and not a past right, or a potential right or an expectancy.

22. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4),(5)or(5A).

23. The applicant on her arrival in Australia in 2011 held a [Country 1] Residency card. This card was issued in July 2009 and had an expiry date of [2019]. By letter dated 19 January 2016 the applicant provided to the Tribunal a copy of a Permanent Residency Card and a Statutory Declaration indicating that she had contacted the [Country 1] Consulate General in Sydney and surrendered her [Country 1] Residency Permit. She indicated that she had surrendered her residency card because she had suffered harm at the hands of her ex-husband and feared returning to [Country 1].

24. In further correspondence dated 4 July 2016 the applicant stated that although she thought she had surrendered her right to reside in [Country 1] by returning her Permit she had in effect legally lost her [Country 1] Residency Permit by reason of her absence from [Country 1] for a period of twelve months. The applicant provided a translation of [Country 1’s immigration provisions] which states that “Long term residents are not entitled to retain their residency status if they have been absent from the EU territory for a period greater than or equal to twelve consecutive months.”

25. At the hearing the applicant claimed that she not only had lost her past right to enter and reside in [Country 1] and that there was no possibility of enlivening this past right. She stated that for her to obtain re- entry into [Country 1] she would need to satisfy the authorities that she had employment in [Country 1].

    Country Information on Right to enter and reside in [Country 1]

26. According to [specified law]:

    [Deleted].

27. Provisions governing the loss of permanent residency are set out in [the relevant law which] states that:

    [Deleted.].[1]

    [1] [Deleted.]

28. Permanent Residence Cards are renewed [frequency].[2] [The relevant law] states: 

    [Deleted.].[3]

    [2] [Deleted.]

    [3] [Deleted.]

29. [Specified sections of this law] set out the provisions for maintaining permanent residency:

    [Deleted.][4]

    [4] [Deleted.]

30. [A further section] states that:

    [Deleted.].[5]

    [5] [Deleted.]

31. [A relevant] website suggests that according to [a different] law [specified] spouses and children of [Country 1] nationals are allowed to travel without prediction. The website goes on to note, however, that it is difficult to predict how the [Country 1] authorities will treat such people wanting to enter [Country 1]:

    [Deleted.].

32. There appears to be some factual discrepancies between the country information provided by the applicant and that sourced by the Tribunal. The applicant references [a section] and a 12 month absence as the relevant time frame by which a residency permit is lapsed. The Tribunal’s information references [a different section] and 2 years absence as the relevant time frame for the lapsing of a residency. Despite these inconsistencies the Tribunal accepts that the applicant no longer holds a residency permit in respect to [Country 1] and that this residency permit was lost by the applicant’s absence from the country.

33. In terms of the applicant’s ability to re-enliven her right to enter and reside in [Country 1] the Tribunal accepts the applicant’s claim that her lack of adequate support and employment in [Country 1] would be a bar to her gaining re-entry to [Country 1]. The Tribunal accepts this claim as it is borne out by the country information set out above at paragraph 29.

34. Furthermore the country information set out at paragraph 28 and 30 indicates that having divorced her husband her residency permit is withdrawn and she is not entitled to an independent right of residence.

35. As such the Tribunal finds that whilst the applicant did have a past right to enter and reside in [Country 1] she does not have an existing right to enter and reside in [Country 1].   The Tribunal finds that s.36(3) does not apply to the applicant with respect to [Country 1].

36. Accordingly the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations as she satisfies the criterion set out in s.36(2)(aa).

    Does the second named applicant qualify as a member of the same family unit as the first named applicant

37. On the basis of his passport presented at the hearing the Tribunal finds that the second named applicant is a national of [Country 1]. 

38. He is the son of the first named applicant. He arrived in Australia with his mother in 2011 and was a minor at the time. He is no longer a minor.

39. As indicated earlier the  second named applicant has not made any claims for protection in his own right but he is seeking a protection visa as a member of the same family unit as the first named applicant in accordance with Subsections 36(2)(b) and (c) of the Act.

40. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a dependent child of the family head or of a spouse or de facto partner of the family head.

41. The Tribunal accepts that the second named applicant is a child of the first named applicant however given his date of birth; [date] at issue is whether or not he is a dependent child of the first named applicant.

42. Dependent for the purposes of a protection visa is defined in Regulation1.05A(2) as “the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.”

43. At the hearing the Tribunal discussed with the applicants their relationship. The second named applicant indicated that he is financially dependent upon his mother as he has limited work rights in Australia. The Tribunal was unconvinced that the second named applicant is  wholly or substantially financially dependent on the first named applicant herself as she herself has limited financial means and is dependent on her [relative].

44. However the second named applicant’s evidence as to his psychological dependence on his mother was compelling. He indicated that he had arrived with his mother as a minor and although he was free to travel to [Country 1] he had not taken these steps because of the psychological dependency on his mother. The applicants indicated that the uncertainty and hardships they had endured over the years had solidified a strong relationship between them and a co-dependency. On the basis of the applicants oral evidence the Tribunal finds that the second named applicant is substantially reliant on the first named applicant for psychological support

45. The Tribunal finds that the second named applicant is a dependent child of the first named applicant and qualifies as a member of the same family unit of the first named applicant. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s.36(2)(c)(ii) and the remaining criteria for the visa are met.

    DECISION

46. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first named applicant satisfies s.36(2)(aa) of the Migration Act; and

    (ii)that the second named applicant satisfies s.36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    Irene O'Connell
    Senior Member