1507174 (Refugee) - [2017] AATA 675

1507174 (Refugee) [2017] AATA 675 (29 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507174
COUNTRY OF REFERENCE:                  Syria
MEMBER:Sean Baker
DATE:29 March 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 29 March 2017 at 10:24am

CATCHWORDS
Refugee – Protection visa – Syria – Lebanon – Imputed political opinion – Opponents of Syrian Government – Avoiding compulsory military service – Particular social group – Failed asylum seeker – Forced conscription – Education and health restrictions on Syrians – Kidnapping – Residence permits – Presently existing rights

LEGISLATION
Migration Act 1958, ss 36, 499
Migration Regulations 1994 Schedule 2

CASES
MIMAC v SZRHU (2013) 215 FCR 35
V856/00A v MIMA (2001) 114 FCR 408
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Syria but was born in [City 1], Lebanon. He is [age] years old. He fears being killed or otherwise harmed in Syria on the basis of his opposition to the Assad government and the conflict there, and does not believe he can return to Lebanon because he does not believe that he would be granted a further residence permit.
The delegate refused the application. The delegate found that the applicant could enter and reside in Lebanon and would not face a real chance of persecution for a Convention reason there, would not face a real risk of significant harm, and would not be returned to Syria by the Lebanese authorities. The applicant provided a copy of the delegate’s decision with his application for review.
A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) into account to the extent that they are relevant.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Syria, and, if not, whether 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 he will suffer significant harm. Finally, if he would be availed of protection on one of these bases, can the applicant enter and reside in Lebanon such that he would not be harmed or returned to Syria.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity and nationality
To the Department the applicant provided an original and a certified copy of his Syrian passport, valid until [2018], as well as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1507174 (Refugee)

Details

AGLC: 1507174 (Refugee) [2017] AATA 675
Case: [2017] AATA 675
Decision Date: 29 March 2017

CaseChat Overview and Summary

The applicant, a Syrian national, sought a protection visa, claiming he would face persecution if returned to Syria or Lebanon. His claims against Syria were based on his refusal to complete compulsory military service due to his opposition to the Assad regime and human rights abuses, which he feared would lead to interrogation and punishment, and his status as a failed asylum seeker. He also asserted a fear of being caught up in the civil war, including kidnapping, being taken hostage, or forced disappearance. His claims against Lebanon centred on lifelong discrimination, lack of legal rights to reside, and the threat of deportation to Syria, where he feared persecution. The applicant also argued that he belonged to particular social groups: "failed asylum seeker from the West" in relation to Syria, and "Syrian children of Lebanese mothers" in relation to Lebanon.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), specifically whether he was a person in respect of whom Australia had protection obligations under the Refugees Convention. This involved assessing whether he had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether he was outside his country of nationality and unable or unwilling to avail himself of its protection. The court also considered the applicant's claims regarding his potential persecution in Lebanon and the risk of deportation to Syria.

The Tribunal found that the applicant satisfied the criterion set out in section 36(2)(a) of the Migration Act. While the specific reasoning for this satisfaction is not detailed in the provided text, it indicates that the Tribunal was satisfied that Australia had protection obligations towards the applicant under the Refugees Convention. The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The situation in relation to his claims against Lebanon in regards to s.36(3) are discussed in more detail below.The applicant’s claims and evidence The applicant’s claims against Syria contained in his application, statutory declaration and as at the interview with the delegate were summarised as follows: · He has not completed his compulsory military service. He has no objection to military service in itself, but he is opposed to Bashar al-Assad's regime because it suppresses Sunni Muslims and because he objects to human rights abuses committed by government forces.· If he refuses military service he will be imputed with• an anti-government political opinion, and will be interrogated and punished.· If he returns to Syria as a failed asylum seeker he will be suspected of an antigovernment opinion and he will be interrogated and physically mistreated. His representative submits that 'failed asylum seeker from the West' is a particular social group.· Separately from his forced conscription, he would be caught up in the civil war if he returned to Syria and could be kidnapped, taken hostage, or killed (including forced disappearance by Syrian government agents).· He is also at risk of generalised violence in Syria. His claims against Lebanon were summarised as the following:· He has experienced lifelong discrimination in Lebanon. He has had to pay more than Lebanese citizens for education, and has not been able to obtain employment commensurate with his skills. He must pay bribes to facilitate ordinary transactions. Were he to need medical care, he would be required to pay more than a Lebanese citizen. He is not legally allowed to own property. As a consequence, his ability to subsist is threatened.· In addition to the societal and economic discrimination the applicant has experienced, the Lebanese state's denial of citizenship and certain rights is a systematic policy of discrimination. His representative submits that 'Syrian children of Lebanese mothers' is a particular social group.· He lives in a state of limbo and uncertainty because he does not have a legally enforceable right to reside in Lebanon permanently. He may be deported from Lebanon to Syria and would then be at risk of the harms in Syria claimed above.· He did not express his opposition to the al-Assad regime while in Lebanon because he feared being killed by pro-Assad militia in Lebanon (or in Syria by the state authorities if he returned there) and because he feared his residency would be cancelled by the Lebanese authorities if he caused trouble.· He could be kidnapped by Syrian intelligence or their Lebanese proxies and taken to Syria in an act of forced recruitment. The applicant also provided a statement dated 27 July 2016 which included information on his claims as above, his study and relationship history in Australia, and a detailed account of events which led to him being convicted in [Australia] of [two offenses] and serving a period of imprisonment for those crimes, and his experience of immigration detention.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Sean BakerMemberATTACHMENT A - RELEVANT LAW 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, 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 of the same class. 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). Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 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’). 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 – and any country information assessment 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.

Ratio Decidendi

Legal Principle Established

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