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

1. [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.

2. 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. 

3. 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. 

4. 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

5. To the Department the applicant provided an original and a certified copy of his Syrian passport, valid until [2018], as well as originals and copies of his Syrian civil registration and identity documents for him and his family, a Lebanese penal clearance and Lebanese residence permit. On the basis of this evidence and with no evidence to the contrary, I accept that the applicant is who he claims to be, and is a national of Syria, which is also his receiving country, that he was born in [City 1], Lebanon and lived the majority of his life there before coming to Australia.

6. 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

7. 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.

8. 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.

9. 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.

10. A submission dated 19 August 2016 was provided.

11. A further submission dated 15 November 2016 was provided.

12. The applicant appeared at a hearing before me on 22 November 2016.

13. At that hearing the applicant consented to the Tribunal contacting the [Representative of Lebanon in Australia] and the [specified agency] of Lebanon regarding the applicant’s ability to obtain a residence permit.

    Findings

14. I have had regard to the applicant’s current Syrian passport and the identity documents for the applicant and his family. I accept that he was born in [City 1], Lebanon. I accept that the applicant is a national of Syria by virtue of his father being a Syrian national. I accept that his mother is a Lebanese national but that the operation of the Lebanese Nationality laws means that neither her husband nor the applicant or his siblings can be granted Lebanese citizenship through her.[1] Recent news reports indicate that this is still the case.[2]

    His claims against Syria

    [1] Australia: Refugee Review Tribunal, Syria: 1. Are men born to Lebanese fathers entitled to Lebanese citizenship? 2. If yes, do they have a right to enter and reside in Lebanon without restriction? 3. Is there evidence that Syrian forces have managed to return anti-government critics to Syria and/or Lebanese forces would return anti-government critics to Syria? 4. Is there any evidence that the Syrian secret service is active in Australia? Or that any actions/views expressed in Australia would come to the attention of such services in Lebanon or Syria? 5. What are the chances of the Assad regime being toppled in the foreseeable future and if this happened what would be the risk for Shia Alawites? , 26 April 2012, SYR40200, available at: 22 March 2017]

    [2] See for example Chamoun, C., The Lebanese Nationality Law That Leaves Children Stateless, Open Society Foundations, 11 January 2017,

15. As a national of Syria, I have first considered the applicant’s claims against that country.

16. I accept that the applicant has spent virtually no time at all in Syria, other than the time required to gain his passport and Syrian identity documents, and I find, on his evidence and the information in his student file (which indicates that as at that time he had not undergone any military training), that he has not undertaken his military service in Syria. I note also that persons who have completed their military service or been exempted are provided with papers that show this status[3]  and the applicant did not present such papers during the processing of his student application. I have considered that the applicant has been issued with a passport with a six year validity. I have had regard to information that a Syrian passport is not normally issued to a person who has not completed their military service.[4] However, without information to the contrary I am prepared to accept the applicant’s explanation that he paid a bribe for the longer period passport.

    [3] DFAT Country Report: Syria, 2 February 2015, 3.75

    [4] Canada: Immigration and Refugee Board of Canada, Syria: Compulsory military service, including age of recruitment, length of service; occasions where proof of military service status is required; whether the government can recall individuals who have already completed their compulsory military service; penalties for evasion (2008-July 2014), 13 August 2014,  SYR104921.E , available at: 23 March 2017]

17. I accept that the applicant holds strong views against harming civilians in the civil war ongoing in Syria, and would resist being conscripted. He has made these claims consistently, and there is no evidence to indicate that he is willing or inclined to engage in conflict against his own countrymen.

18. Country information indicates that there is military conscription in Syria, that the state continues to send conscription notices to youths in areas it controls, that the state does pursue people who refuse conscription and jails them, and that obtaining exemptions for conscription through being the only son or paying a fee has become harder.[5] There are numerous and credible reports that the Syrian state has practiced torture on detainees, pre-dating the conflict, and have engaged in the torture of thousands of detainees, as a means of obtaining information and/or as punishment.[6]  The state exercises control over the Damascus airport and there are assessed to be no ‘safe havens’ in Syria.[7]

    [5] DFAT Country Report: Syria, 2 February 2015, 3.73 – 3.76.

    [6] DFAT Country Report: Syria, 2 February 2015, 4.3, CNN, “These men say they survived torture in a Syrian prison”, 9 February 2017,

    [7]

19. Additionally, UNHCR and UK government information indicates that Syrians will generally fulfil the requirements of the refugee definition, and that failed asylum seekers or forced returnees face a real risk of arrest or detention.[8]

    [8] UNHCR, International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic, Update IV, United Nations High Commissioner for Refugees (UNHCR), November 2015, HCR/PC/SYR/01,

20. In particular, UK country guidance for Syria sets out:

    2.3.1 In the Country Guidance case of KB (Failed asylum seekers and forced returnees) Syria CG [2012] UKUT 426 (IAC) (21 December 2012), the Upper Tribunal found that ‘in the context of the extremely high level of human rights abuses currently occurring in Syria, a regime which appears increasingly concerned to crush any sign of resistance, it is likely that a failed asylum seeker or forced returnee would, in general, on arrival face a real risk of arrest and detention and of serious mistreatment during that detention as a result of imputed political opinion. That is sufficient to qualify for refugee protection. The position might be otherwise in the case of someone who, notwithstanding a failed claim for asylum, would still be perceived on return to Syria as a supporter of the Assad regime’ (paragraph (b)).

    2.3.2 Since this determination, the scale and spread of human rights abuses has widened. Currently, Assad supporters (or those perceived as such) may also be at risk of persecution, particularly in areas controlled by armed opposition groups.[9]

    [9] UK Home Office, Country Information and Guidance: Syria: the Syrian Civil War, Version 3.0, August 2016,

21. The country information, I find, indicates that young men are called up for conscription by the state in areas the government controls, and that refusal to enlist leads to jailing, that those detained face some risk of serious mistreatment and torture. Further, that those returned to Syria from abroad face a likelihood on arrival of being arrested and detained and being seriously detained during that detention as a result of imputed political opinion.

22. Taking into account and accepting the applicant’s evidence that he has not completed his military service, his unwillingness to fight against his countrymen, and the country information above and in particular that he would be returned to the international airport as a failed asylum seeker and/or forced returnee, this leads me to certain conclusions.

23. I find that, were the applicant returned to Syria, he would be stopped and detained at the airport for reasons of his returning as a failed asylum seeker and/or forced returnee, and his likely refusal to be enlisted, that these factors would lead to him being imputed by the Syrian authorities with an anti-regime opinion, that detention would lead to a real chance/real risk of him being mistreated or tortured for those reasons, that as the State would be the persecutor the applicant would be unable to avail himself of the protection of the state, and that, on the country information, there are no safe havens or areas where he could safely relocate. The harm identified is serious harm, and his imputed political opinion would be the essential and significant reason for the persecution, which as well as involving serious harm would involve systematic and discriminatory conduct by the persecutors operating to harm those they perceived as enemies of the regime in an organised and targeted manner.

24. I find therefore that there is a real chance of the applicant being harmed for a Convention reason, being his imputed political opinion, if he were returned to Syria, now and in the reasonably foreseeable future.

25. Having assessed the applicant as being owed protection in relation to his claims against Syria, I have now considered whether the applicant can avail himself of a right to enter and reside in Lebanon.

    Claims against Lebanon

26. The applicant has provided the Department with evidence of a residence permit that he held from 2005 until 2015. I accept that he held this permit on the basis of his mother’s Lebanese citizenship. I accept that the legal provisions around residence permits and their length has varied over time, and that, with the influx of Syrian refugees, such permits may be more closely scrutinised now than when the applicant was granted his last residence permit, in 2005 before the war began.

27. I do not accept the applicant’s claims that he would be societally discriminated against on the basis of his Syrian nationality – he speaks Arabic with a Lebanese accent, having spent all of his life there, and would be indistinguishable from a Lebanese Sunni man. However, I do accept, and as discussed in more detail below, that officially he would be dealt with as a Syrian National.

28. I do not accept the argument of the applicant’s representative that the right must be a legally enforceable right: It is sufficient to have a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn.[10] However, the right must also be a presently existing right, rather than a past or lapsed right or a potential right.[11]

    [10] MIMAC v SZRHU (2013) 215 FCR 35. [89]

    [11] V856/00A v MIMA (2001) 114 FCR 408 at [31], and cited with approval in MIMAC v SZRHU (2013) 215 FCR 35 at [45].

29. Relevantly to this case, Departmental policy indicates that decision makers should decide whether the law is still in effect or the applicant’s circumstances have not changed. Additionally, the policy notes that there is no ‘bad faith’ element in s.36(3) so if a person allows a right to enter and reside to lapse deliberately, or refuses to engage a right to enter and reside, this conduct cannot be disregarded.

30. After the hearing, the Tribunal sought further information, with the applicant’s consent, on the Lebanese laws around the residence permit, and whether, in his particular circumstances, he would be eligible and able to apply for such a permit.

31. This information was provided by Australian Government officials from the Department of Foreign Affairs and Trade (DFAT) who visited and spoke with relevant authorities in Lebanon in February 2017:

    Lebanese legislation prevents a mother from granting her nationality to her children or to her foreign husband. Article 1 of Decree No. 15 on Lebanese Nationality (19 January 1925) states that an individual is considered Lebanese if the individual is born of a Lebanese father. Decree No. 4186 (31 May 2010) provided for children and foreign husbands of Lebanese women to obtain a 'courtesy residence' which permits the individual to enter and reside in Lebanon.

    Post (DFAT) discussed the implementation of Decree No. 4186 as well as the particular case outlined in IC63780L with a range of credible in-country contacts. In-country contacts understand that should an individual wish to apply for a 'courtesy residence' they would require recent and verifiable documentation demonstrating the mother's Lebanese nationality. While contacts noted they were aware of some very limited examples of 'courtesy residence' being granted without the mother supporting the child's application by withholding documentation, they highlighted that without documentation it would be nearly impossible to access 'courtesy residence'.

    Contacts further highlighted that decisions to grant 'courtesy residence' were made on a case-by-case basis, and that it was therefore difficult to provide advice on whether an individual of a particular profile would be granted a 'courtesy residence'. Other considerations may include whether the individual is a minor, or whether the individual had secured employment within Lebanon. Lebanese authorities have continued to tighten restrictions on Syrians entering Lebanon, and in-country contacts noted that this would likely have an effect on individuals attempting to access a 'courtesy residence'.

32. The applicant and his mother have consistently stated that she would not support an application for the applicant to be provided with a courtesy residence. The applicant has not secured employment in Lebanon and gave evidence that he did not believe this would be possible, his father and brother being un- or under-employed, the allusion in the response the tightening of restrictions on Syrians entering Lebanon is well supported by other country information, including that in the submissions, and the applicant would be seeking such a permit with, now, a criminal record including time in jail.

1. Having considered all of the information before me, I make the following findings:

2. The applicant has, in the past, been able to access residence in Lebanon. However, I find, on the evidence before me, that he does not have such a presently existing right. Nor does it appear to be the proper construction of s.36(3) to say that there are steps he could take which might allow him to avail himself of the right – in this case, his residence permit has lapsed, and whilst he has some of the pre-conditions for applying for a further permit – his mother being a Lebanese citizen; the evidence before me is that she will not provide the information required to process the permit, and there is a chance, which I cannot discount, that as a person who has been convicted of a crime and jailed, and given the information from the response from DFAT, confirmed by other country information, that the Lebanese authorities are seeking to constrain the entry of Syrian nationals into Lebanon, he would not be granted the residence permit.

3. I find therefore that the applicant does not have a right to enter and reside in Lebanon. There is no evidence before me to indicate that he has a right to enter and reside in any other third country. Therefore, s.36(3) does not preclude him from being owed protection.

   Conclusions

4. 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

5. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Sean Baker
   Member

   
   

   ATTACHMENT A - RELEVANT LAW

6. 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.

7. 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).

8. 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.

9. 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’).

10. 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.