1712248 (Migration)

1712248 (Migration) [2018] AATA 2909 (5 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1712248
MEMBER:Melissa McAdam
DATE:5 June 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.
Statement made on 05 June 2018 at 2:47pm

CATCHWORDS
Migration – Cancellation – Refugee and Humanitarian (Class XB) visa – Subclass 200 (Refugee) – Whether there was non-compliance as described in the s.107 notice – Whether the applicant has provided incorrect answers and information in their application – Where the applicant has admitted to providing incorrect answers and information – Non-compliance as described exists – Whether the visa should be cancelled – Significant period of time since non-compliance – Where the applicant would likely have been granted the visa if the correct information had been provided – Where Australia’s non-refoulement obligations are likely to be engaged – Significant hardship if visa were to be cancelled – Best interests of the child – Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 101, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
CASES
COT15 v Minister for Immigration and Border Protection (No 1) [2015] FCAFC 190
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Le [2016] FCAFC 120

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 200 (Refugee) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act because he provided incorrect answers and information in his application for a visa regarding his nationality, past residences, and movements. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review by his registered migration agent.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.
The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) of the Act, in the following respects:
In his application for an offshore Humanitarian Visa on 23 December 2008 the applicant provided the following information in Form 842:
At question 2 of Part A
Family Name: [Family Name 1]
Given Names: [Given Name 1]
Date of Birth: [Date of Birth 1] (the UN states my DOB as [Date of Birth 1] but my actual DOB: [Date of Birth 2])
Place of Birth Town/City: [Province 1]
Country: Iraq
Citizenship: Iraqi
At question 24 Part G of Form 842:
What is the name of the country you have a fear of returning to? “Iraq”.
At question 26 Part G of Form 842:
Why did you leave that country? “Follow my parents that I was in childhood”.
At question 27 Part G of Form 842:
How did you leave that county? “Illegally – I remember that my father told me that we escaped by someone smuggler through Iraqi-[Country 1] limited to [Country 1]”.
At question 28 Part G of Form 842:
What do you believe may happen to you, or the people included in your application. If you were to return to that country?   “The mafias will kidnap me to pay for them or kill me that I come back from outside Iraq, terrorism who always kill the common people or killed by unknown mafia groups, also i do not have any things like home or others and I don’t know where is my family.”
At question 29 Part G of Form 842:
Who do you think may harm or mistreat you if you go back to that country? “Terrorism, unknown mafias, radicalism”.
At question 30 Part G of Form 842:
Do you think the authorities of that country can and will protect you if you return to that country?   “The authorities couldn’t and can’t protect them self because it isn’t strong and new build government.”
At question 31 Part G of Form 842:
Did you travel through or stay in any other countries before arriving in the country where you are now living?   “yes – From Iraq to [Country 1] in 1981 – from [Country 1] to [Country 2] in 1982 – From [Country 2] to Syria [09/2001] – from Syria to [Country 3] [09/2001], from [Country 3] to [Country 4] in [09/201] – from [Country 4] to [Country 5] in [09/2001].”
During an interview on 30 December 2008 he provided the following information:
At question 5:
Confirm name, date, and place of birth: [Given Name 1] [Family Name 1], bn [Province 1], Iraq . [Date of Birth 1] The UN states my date of birth as [Date of Birth 1] but my actual date of birth is [Date of Birth 2],
Any ID Doc?    I don’t have any official documents, they were all lost at sea. They gave my date of birth as [Date of Birth 2].
At question 6:
Have you ever been known by any other names? No.
At question 14:
Briefly – refugee claims: There is no security in Iraq, there are many kidnappings and people are killing each other. I don’t have anybody in Iraq anymore. I left Iraq when I was [young].
The delegate noted that [in] March 2009 the applicant was granted a class XB subclass 200 visa based upon the above information.
The non-compliance was further identified and particularised in the s.107 notice. It was stated that during an Identity interview on 18 August 2016 the applicant provided the following information:
·     He stated his birthday was [Date of Birth 1] and this was recorded on his Iraqi documentation prior to it being lost at sea in 2000 on his first attempt to reach Australia by boat. This information was stated differently in the interview for his XB200 Humanitarian visa (where he claimed his true birthday was [Date of Birth 2] and the UN had issued him the birthday [Date of Birth 1]). At interview he disagreed, saying this was not the case.
·     He stated he did not leave [Country 2] in 2001 as previously claimed but had migrated to Syria in the 1980s with family, possibly in 1988.
·     He claimed he regularly travelled between Syria and [Country 2] illegally for work and school, attending primary school in both countries. He was unclear and did not identify the schools he claimed he attended during his interview for the XB 200 Humanitarian visa.
·     He stated, to depart Syria for [Country 3], he used a fraudulent Iraqi passport bearing his own photographic image and a false name. He stated a smuggler arranged this document for him and a visa for [Country 3] was in the passport when he obtained it.
He claimed he flew from [City 1, Syria] to [a particular city in Country 3] via [a particular city] on [a particular airline].
However, he did not claim his family required documents to flee [Country 2] for Syria, as previously claimed in his Protection application.
·     He stated his family resided in houses in [Country 2] and Syria even though his XB 200 Humanitarian visa application states his family was "moved from camp to camp in [Country 2]".
·     During this interview he made the following admission regarding his protection and identity claims stating they were fraudulent. He stated his true identity is:
Mr [Family Name 2] [Given Name 2] DOB [Date of Birth 3] COB: Syria Citizenship: Syria
·     He is from [Province 2], Syria, his family reside in [City 1], Syria and he is fully documented having obtained evidence of his identity from family abroad. On 26 August 2016, the NSW Identity area received copies and English translations of the following identity documents by email which confirm his claimed Syrian identity.
o    Syrian Passport
o    Syrian National Identity Card
o    Syrian Electoral Card
o    Family Identity Booklet
o    Primary School Certificate
The delegate noted that a review was conducted of the Syrian identity documentation and accepted as evidence of the applicant’s true identity.
The delegate set out the following information, provided in the applicant’s Form 842   Application for an offshore Humanitarian Visa (Class XB 200) and interview, that she considered to be incorrect:
At question 2 of part A of the Form 842 you provided the following information:
Family name: [Family Name 1]
Given names: [Given Name 1]
Date of birth: [Date of Birth 1] (the UN states by DOB as [Date of Birth 1] but my actual
DOB: [Date of Birth 2])
Place of birth: Town/City: [Province 1]
Country: Iraq
Citizenship: Iraqi
Based on the above information this appears to be incorrect because:
·During an identity interview with the Department on the 18 August 2016 you made an admission stating your identity claims in your 200 Refugee visa application have been false. You claim you are from [Province 2], Syria and have provided your Syrian Family Identity Card and cancelled Syrian Passport as evidence of your identity and Syrian citizenship:
Surname: [Family Name 2]
Given names: [Given Name 2]
Date of birth: [Date of Birth 3]
Place of birth: Town/City: [City 2] Country: Syria
Date of registration:    [Registration Date 1]
Citizenship:Syria
·While you had maintained a consistent claim of being an Iraqi citizen since migrating to Australia in 2009, it appears since your interview with Identity Officers you are a fully documented Syrian National with the true identity of Mr [Family Name 2] [Given Name 2] DOB [Date of Birth 3] COB: Syria Citizenship: Syria. Your Syrian Family Identity card states this document was issued [in] 2011, well before you application on 23 December 2008 for an offshore Humanitarian Visa (Class XB 200). It appears at time of application you were a Syrian citizen.
·You initially claimed to be born in [Province 1], Iraq on [Date of Birth 2], this is incorrect as your Syrian Family Identity Card shows you were born in [City 2], Syria on [Date of Birth 3]. You have been issued relevant identity documentation by the Syrian Government which attests to your citizenship. It appears you are a Syrian citizen and not an Iraqi citizen as stated at time of your Humanitarian visa application.
At question 24 of part G of the Form 842 you provided the following information: What is the name of the country you have a fear of returning to? "Iraq".
Based on the above information this appears to be incorrect because:
·During your interview for your Humanitarian visa on the 30 May 2008 you stated there is no security in Iraq, there are many kidnappings and people are killing each other. You also state you do not have anybody in Iraq anymore, stating you left Iraq when you were [young].
·You admitted at your identity interview and have provided evidence to being a citizen of Syria and not Iraq therefore, your claims were false at time of application You are a citizen of Syria and have lived and worked in Syria.
·You were able to continue living in Syria, there was no reason for you to go to Iraq if your visa application had been refused.
·The persecution you claimed to have experienced in Iraq did not occur because you were living in Syria.
At question 26 of part G of the Form 842 you provided the following information: Why did you leave that country? "Follow my parents that! was in childhood".
Based on the above information this appears to be incorrect because:
·During your identity interview on 18 August 2016 you claimed you were forced to flee Iraq, travelling to [Country 1] and subsequently [Country 2] where your family settled. You claimed your family fled [Country 2] to Syria using fake Iraqi passports. You stated your family remained in Syria while you left for Australia illegally by sea.
·During the same identity interview you later claimed to be a fully documented Syrian National and have provided evidence to this effect, a Family Identity Card issued [in] 2011. This document lists you and your parents as Syrian Nationals.
Husband's details
Given name:  [Information removed]
National Identification number:          [Information removed]
Name of father:          [Information removed]
Surname:  [Family Name 2]
Name of mother                [Information removed]
Date of birth:  [Information removed]
Place of birth:                   [City 2], (Syria)
Religion:  Islam
Address:  [a particular address in City 2]
Civil Register:                   [Information removed]
Date of registration:           [Information removed]
Wife's details:
Given name:                   [Information removed]
National Identification number:          [Information removed]
Name of father                [Information removed]
Surname:  [Information removed]
Name of mother               [Information removed]
Date of birth:                   [Information removed]
Place of birth:                 [City 2], (Syria)
Religion:  Islam
Civil Register:                  [Information removed]
Date of registration:          [Information removed]
Particulars of third child:
Given name:                   [Given Name 2]
Sex:  Male
Name of father:                [Information removed]
Surname:  [Family Name 2]
Name of mother               [Information removed]
Date of birth:                   [Date of Birth 3]
Place of birth:                 [City 2], (Syria)
Date of registration:          [Registration Date 1]
At question 27 of part G of the Form 842 you provided the following information:
How did you leave that country? "Illegally— I remember that my father told me that we escaped by someone smuggler through Iraqi-[Country 1] limited to [Country 1]".
Based on the above information this appears to be incorrect because:
·During your identity interview you initially claimed that you did not leave [Country 2] in 2001 as previously claimed but you and your family migrated to Syria in the 1980's.
·During the same identity interview you later admitted that you are from [Province 2], Syria and your family reside in [City 1], Syria. You admitted your protection and identity claims were fraudulent.
At question 28 of part G of the Form 842 you provided the following information:
What do you believe may happen to you, or the people included in your application, if you were to return to that country? "The mafias will kidnap me to pay for them or kill me that I comeback from outside Iraq, terrorism who always kill the common people or killed by unknown mafia groups, also I don't have any thigs like home or others and I don't know where is my family'.
Based on the above information this appears to be incorrect because:
·You have been living in Syria and not Iraq. This is supported by your admission during your identity interview.
At question 29 of part G of the Form 842 you provided the following information:
Who do you think may harm or mistreat you if you go back to that country? "Terroriesm, unknown mafias, radicalism".
Based on the above information this appears to be incorrect because:
·The persecution you claimed to have experienced in Iraq did not occur because you were living in Syria.
·You are not an Iraqi citizen fearing persecution. You admitted your protection and identity claims were fraudulent.
At question 30 of part G of the Form 842 you provided the following information:
Do you think the authorities of that country can and will protect you if you return to that country? "The authorities couldn't and can't protect them self because it isn't strong and new build fheller government".
Based on the above information this appears to be incorrect because:
·You are not an Iraqi citizen and have not been residing in Iraq. You admitted your protection and identity claims were fraudulent.
At question 31 of part G of the Form 842 you provided the following information:
Did you travel through or stay in any other countries before arriving in the country where you are now living? "Yes — From Iraq to [Country 1] in 1981 —from [Country 1] to [Country 2] in 1982— From [Country 2] to Syria [09/2001] — from Syria to [Country 3] [09/2001] from [Country 3] to [Country 4] in [09/2001] — from [Country 4] to [Country 5] in [09/2001]".
Based on the above information this appears to be incorrect because:
·You initially claimed during your identity interview on the 18 August 2016 you did not leave [Country 2] in 2001 as previously claimed in your Protection application but migrated to Syria in the 1980's with your family.
·Based on your claims during your identity interview on the 18 August 2016 you admitted your identity claims are false. You stated your family currently resides in [City 1], Syria.
On the basis of the information set out in the notice the delegate considered that the applicant had not complied with s.101(b) of the Act because he provided incorrect information to the Department in support of his visa application.
The applicant’s response to the notice
The applicant provided a Statutory Declaration dated [in] May 2017, in response, summarised as follows:
·He is a national of Syria. Born in [a particular] village in [Province 2] in Syria [a number of] years ago.
·He fled Syria in 2001 because he feared the Syrian Intelligence would kill him.
·He has had work and motor vehicle accidents which have left him with [various] injuries which now prevent him from working. He has also developed mental health problems for which he is receiving treatment.
·In 2002 he presented falsely to the UNHCR, pretending to be an Iraqi citizen. He gave incorrect answers, as identified, in his visa application.
·He is filled with remorse about this. And plagued with guilt and anxiety. He deeply apologises for what he did and the problems he has caused.
·He presented himself falsely because of his strong fear of being sent back to Syria where he would face severe persecution.
·At the time the Syrian regime was well regarded and Syrian failed asylum-seekers were regularly sent back there.
·He finished his elementary education at his village school in [a particular year]. He worked in the agricultural fields with his family until 1993.
·Afterwards he did his compulsory military service, serving in [City 1], until [1995].
·He then worked in [Country 2] as [a particular occupation] until about 2001. He would visit his family in Syria every month.
·In [2001] he decided to try to rejoin the Syrian Army as a volunteer. He submitted is documents to the Syrian military security service. [A number of] months later he was accepted. But he decided not to proceed with military service and refused to join the military security service.
·As a result he was under investigation. He was asked many questions regarding entities who called him in [Country 2]. His life became a nightmare due to the continuous investigations. He started to think about escaping Syria.
·While visiting his uncle in [City 1] he met some young Iraqis who [were acquaintances of his uncle], they promised to help the applicant and found him a forged Iraqi passport and visa for [Country 3] which he paid [a particular amount] for..
·He left Syria illegally in breach of his security instructions [in] 09/2001 and went to [Country 3]. From there he travelled [to a particular city in Country 4]. Later he was smuggled to [Country 5]. [In] 10/2001 he and others were taken to [a particular city in Country 5] by [Country 5] police. From there they set sail to Australia. he was on a boat with [a large number of] other people.
·[Some time] later they arrived [at a particular Australian external territory]. The Australian navy tow them back to [Country 5] waters where the [Country 5] police took them to [a city in Country 5]. After 2001 New Year they were taken to [City 3]. He stayed in [City 3] for the next five years, until 2006. While in [City 3] he told the UNHCR he was an Iraqi. He did not tell his real story because he feared being returned to Syria.
·In [2006] he and others were transferred from [City 3] to [another city in Country 5] where they stayed until they received approval for asylum in Australia.
·[In] May 2009 he arrived in Australia. He has resided in Australia as a permanent resident since then
·His initial visa expired [in] March 2014 so he is confused how it can be cancelled now.
·The situation for all Syrians started to deteriorate badly in 2011 and there is now civil war.
·Syria is unsafe for anyone. His family living in [Province 2] have been imprisoned and battered by DAESH jihadists of ISIS. Most of his younger family members have escaped. Some fled to [Country 6] and others to [Country 7].
·His father, [and various siblings] are still blockaded by ISIS. His brother tried to help their father who is ill to go to [City 1] for treatment but ISIS refused.
·He cannot return to Syria because his life will be threatened by the Syrian regime security and by DAESH.

The applicant submitted a psychological report from [Dr A], [Psychiatrist], dated [in] March 2017 which states that the applicant has been seeing [Dr A] since 2012; the applicant lives with his wife and [children]; he has chronic symptoms of anxiety; he is being treated with anti-depressant medication and regularly attends psychotherapy sessions; he is diagnosed as presenting with chronic symptoms of anxiety.
The applicant also submitted a psychologist’s report from [Dr B], dated [in] March 2017 without states that the applicant ‘qualifies for a diagnosis of Post Traumatic Stress Disorder’ and ‘chronic pain’.
Delegate’s decision, [June] 2017
In the cancellation decision the delegate found that the applicant had not complied with s.101(b) of the Act because he provided incorrect information in, and in support of, his application for a subclass 200 visa. The delegate found that grounds for cancellation existed.
The delegate found that the applicant provided incorrect information regarding the following:
·his citizenship;
·his name;
·his date and place of birth;
·the countries he had resided in and travelled through;
·the country he feared returning to; and
·his protection claims.
The delegate found that:
·the correct information is that the applicant is a Syrian citizen, named [Given Name 2] [Family Name 2], born on [Date of Birth 3] in [City 2], Syria.
·the applicant was granted the subclass 200 visa based upon false information about his fear of returning to Iraq.
Based upon her findings and assessment the delegate decided to cancel the applicant’s visa.
Tribunal Hearing, 26 April 2018
The applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information he provided at the hearing:
·His religion is Islam. He is a Sunni Muslim but he does not like to distinguish between sects, a Muslim is a Muslim.
·His ethnicity is Arab.
·He was born and lived in a Syrian village, [in Town 1], [Province 2].
·He also lived in [City 1] when he was a soldier during his compulsory military service. This was from 1993 to [1995].
·He has not lived anywhere else in Syria.
·His family had farmland which they farmed. He worked as a farmer on the land.
·His mother passed away in [a particular year]. His father and siblings were living in [Province 2]. His father is very sick so the family have to take him to [City 1] from time to time. Currently they are in [City 1] as [Province 2] is not safe because of DAESH. They have been in [City 1] for maybe six months now. They are staying at his sister’s place.
·Between 2001 and 2009 he had no communication with his family in Syria. They thought he was dead. He then contacted his family from [Country 5], [some time] before he was to travel to Australia.
·Since coming to Australia he maintained contact with his family in Syria until the armed groups entered [Province 2]. He then lost contact with them and heard information only through his sister who lives in [City 1]. His sister lives in [a particular location] in [City 1]. The area is under the control of the regime. It is also near [other locations].
·[Town 1] is under the control of DAESH. While his family were in [Town 1] their situation was really bad. An uncle and brother were in prison and tortured and treated in a degrading way by DAESH. The applicant’s nephew and cousin were also imprisoned by DAESH.
·His relatives are divided. Some support the regime and some are against it. The regime has caused problems for his relatives. Many of his cousins and uncles were detained in prison and some fled the area. His [uncle] was imprisoned by the regime. Now he is in [Country 6]. Some of his relatives were soldiers who deserted. Some were put in prison for desertion and some are in [Country 7].
·Some of his uncles are in [Country 8] and some are in [Country 7]. [A number] are in [City 1] and some are in the camps in [Province 3].
·As far as he knows, the camps in [Province 3] are run by the Kurdish forces. Some of his uncles are there because DAESH would not allow anyone in or out of the area they controlled. After the fighting between the regime forces and DAESH there was a way for them to go out, so they went to the camps under the control of the American and Kurdish forces. This was to escape the fighting in their home area. Even though the fighting is over some are still in the camps because DAESH control in the region has not finished. People are worried about the regime forces. They are not certain and cannot feel safe as the regime may detain them or accuse them of something. They do not feel safe even with the regime.
·None of the applicant’s family are now in [Town 1]. They wanted to leave [Town 1] since 2012 but could not because DAESH blocked all the roads.
·One of his brothers has a house in [City 1] where he is now living. The applicant’s father, sister and younger brother are living at his sister’s house in [City 1].
·The applicant cannot say definitely whether his father and siblings support or oppose the regime. Most of the people are divided, though most are against the regime. The applicant is against the regime, because of the problems and killings.
·He left Syria in 2001. He would have problems in Syria now because he had a problem there before. The regime would still have records of this. His family can live in [City 1] but he could not.
·He does not know if his family still have a home in [Town 1]. When they left there was a lot of bombing. He doesn’t think they know if their house is still okay there.
·The applicant identifies as a Muslim but he is not committed to religion. His wife and children are Christians.
·He doesn’t think he will have any problem with his family because his wife and children are Christian. However the armed groups may want to punish him because of it. They can punish you just for the way you look. They would think the applicant has gone against God’s laws and behead him, his wife and children.
·In [Town 1] and [Province 2], all the people are Muslims. For them it is unacceptable to have a Christian wife. They would expect the applicant to make her and their children convert to Islam.
·It is difficult to tell who is against or for anyone in Syria and [City 1] so you cannot tell who may want to harm you. There are Islamist groups in [City 1]. There are killings in [City 1]. They are reported on the news.
·It is correct that the applicant obtained his visa on the basis of the incorrect information he provided. But he did this because he was scared so concealed his Syrian citizenship. In the media at the time there was nothing known about what was really happening in Syria. So he thought he would be sent back to Syria.
·One of his uncles was in the opposition in the past, and was suspected of being in the Muslim Brotherhood. This was during the events at [a particular Syrian city], a long time ago. He was put in prison from 1985 until 1993. After he was released he went to [another country].
·His wife came to Australia in 2009. The [children] came here in September 2016. They can’t return to [Country 5] because the children are in school here.
·He doesn’t think he has breached any other laws in Australia. He may have a traffic offence, such as ‘not stopping’. He was waiting to park and a picture of him being double parked was taken. He doesn’t think he has any other offences.
·He has made financial and clothing donations to his wife’s church. He has also donated clothes and medicine for children in Syria. He sometimes goes to his wife’s church with her and the family. He finds it enjoyable there. He does not regularly attend church. He doesn’t regularly attend the mosque either. The church his wife and children go to uses [a particular] language which he can speak and understand.
Country information
Amnesty International’s current ‘Overview’ regarding Syria, states the following:
Parties to the armed conflict committed war crimes and other grave violations of international humanitarian law and human rights abuses with impunity. Government and allied forces, including Russia, carried out indiscriminate attacks and direct attacks on civilians and civilian objects using aerial and artillery bombing, including with chemical and other internationally banned weapons, killing and injuring hundreds. Government forces maintained lengthy sieges on densely populated areas, restricting access to humanitarian and medical aid to thousands of civilians. Government forces and foreign governments negotiated local agreements which led to the forced displacement of thousands of civilians following prolonged sieges and unlawful attacks. Security forces arrested and continued to detain tens of thousands of people, including peaceful activists, humanitarian workers, lawyers and journalists, subjecting many to enforced disappearances, torture or other ill-treatment and causing deaths in detention. Armed opposition groups indiscriminately shelled civilian areas and subjected predominantly civilian areas to prolonged sieges, restricting access to humanitarian and medical aid. The armed group Islamic State (IS) unlawfully killed and shelled civilians and used them as human shields. US-led coalition forces carried out attacks on IS in which civilians were killed and injured, at times violating international humanitarian law. By the end of the year, the conflict had caused the deaths of more than 400,000 people and displaced more than 11 million people within and outside Syria.[1]
[1] Available at:
The 2018 World report from Human Rights Watch, contains the following about Syria: –
The fight against the extremist group Islamic State (also known as ISIS) emerged as the top priority for Syria’s multiple warring parties in 2017. The government, with the assistance of Russia, Iran, and Hezbollah, retook large parts of central and eastern Syria from ISIS, while US-backed Syria Democratic Forces controlled Raqqa. The race to secure territory and consolidate gains was accompanied by grave violations of human rights and humanitarian law that have come to characterize the Syria conflict.
More than 400,000 have died because of the Syrian conflict since 2011, according to the World Bank, with 5 million people seeking refuge abroad and over 6 million displaced internally, according to United Nations agencies. By June 2017, the UN also estimated that 540,000 people were still living in besieged areas.
The Syrian government has launched numerous chemical weapons attacks on civilians in opposition-held areas. With Russia and Iran’s support, the Syrian government has conducted deliberate and indiscriminate attacks against civilians and civilian infrastructure, withheld humanitarian aid, employed starvation as a war tactic, and forcibly displaced Syrians in contravention of international law. The Syrian government’s practices of torture and ill-treatment in detention and enforced disappearances continue.
Non-state armed groups have also committed a host of violations. The groups have launched deliberate and indiscriminate attacks against civilians, abducted, and arbitrarily detained activists, used excessive force to stifle protests and interfered with humanitarian aid delivery. ISIS has reportedly used civilians as human shields, and employed landmines and other IEDs causing significant harm to civilians and civilian infrastructure.
Civilian casualties from airstrikes by the US-led coalition fighting ISIS increased. According to the Syrian Network for Human Rights, a local group, 2,286 civilians had died since the beginning of the [coalition] campaign until September 2017. A number of these strikes raise concerns that the coalition failed to take necessary precautions to avoid and minimize civilian casualties.
…
Enforced Disappearances, Death in Custody, Arbitrary Arrests, and Torture
Arbitrary detention, ill-treatment, torture and enforced disappearances continued to run rampant in Syria. In 2017, the Syrian Network for Human Rights (SNHR) documented more than 4,252 individual arbitrary arrests, most of them conducted by government forces. As of August 2017, over 80,000 individuals remain disappeared, according to SNHR.
…
ISIS
Abuses by ISIS against civilians continue unabated despite the group losing control of wide areas. ISIS used civilians as human shields in its defense of Raqqa and other towns, and employed internationally banned landmines to hold off the advance of attacking forces.
In May, ISIS militants attacked the town of Aqarib al-Safiyah, predominantly populated by Ismailis, a minority Shia Muslim community. While attempting to flee, residents were killed in the streets by snipers positioned at the village’s water reservoir and on the roofs of houses. In total, 52 civilians were killed, including 12 children according to the UN Commission of Inquiry. Another 100 were injured, including two girls who suffered serious head wounds.
The UN-OPCW’s joint investigation into the use of chemical weapons in Syria has previously confirmed that ISIS has used chemical weapons, specifically sulfur mustard gas, against civilians.
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Areas Under Kurdish Democratic Union Party (PYD) Control
… Human Rights Watch has received reports of torture and ill-treatment in detention facilities controlled by the Syrian Democratic Forces (SDF) - a coalition of forces fighting ISIS primarily made up of the YPG. … Local activists report the SDF restricted the freedom of movement of displaced persons from Raqqa and Deir-Ezzor province who end up in displacement camps in SDF controlled areas, and deteriorating humanitarian conditions for the displaced.[2]
[2] Available at:
In November 2017 the UNHCR published guidelines about international protection considerations for Syrians,[3] which contain the following:
[3] UN High Commissioner for Refugees (UNHCR), International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update V, 3 November 2017, available at: view of the widely reported serious and widespread violations of international humanitarian law (IHL) and violations and abuses of human rights law and ongoing armed conflicts in many parts of the country, UNHCR continues to characterize the flight of civilians from Syria as a refugee movement, with the vast majority of Syrian asylum-seekers continuing to be in need of international refugee protection, fulfilling the requirements of the refugee definition contained in Article 1A(2) of the 1951 Convention. [original highlighting]
… For many civilians who have fled Syria, the nexus to a 1951 Convention ground will lie in the direct or indirect, real or perceived association with one of the parties to the conflict. A particular feature of the conflict in Syria is that different parties to the conflict frequently impute a political opinion to larger groups of people, including families, tribes, religious or ethnic groups, or whole towns, villages or neighbourhoods, by association. In those situations, the risk of being harmed is serious and real, and in no way diminished by the fact that the person concerned may not be targeted on an individual basis.
UNHCR maintains its assessment that Syrian civilians and former habitual residents of Syria falling under the below mentioned risk profiles (except for sub-categories within risk profiles 3 and 8) are likely to be in need of international refugee protection. … [T]he Syrian Government with support from its allies has regained control over substantive parts of the country. Similarly, Kurdish-dominated forces have consolidated their control over parts of northern Syria.
In parallel, the control over territory by and the military capabilities of anti-government armed groups and ISIS have diminished. Against this background, UNHCR assesses that certain specific sub-categories of civilians within two risk profiles (see profiles 3 and 8 in the list below) may be in need of international refugee protection, depending on the individual circumstances of the person concerned.
… In light of the prevailing conditions in Syria, in particular the multitude and complexity of conflicts, the volatility of the security situation, the reported high level of human rights violations and abuses, and the deeply entrenched suspicions against persons of different backgrounds or origins, UNHCR does not consider it appropriate for states to deny persons from Syria international protection on the basis of an Internal Flight or Relocation Alternative (IFA/IRA).
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Moratorium on Forced Returns
Finally, as all parts of Syria are reported to have been affected, directly or indirectly, by one or multiple conflicts, UNHCR calls on states not to forcibly return Syrian nationals … .
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Despite efforts to reduce violence through de-escalation agreements, nearly all parts of Syria continue to be embroiled in violence, which is playing out between different state and non-state actors in partially overlapping conflicts and has increasingly involved different regional and international actors. The country is reportedly deeply fractured as parties to the conflict, including Syrian government forces, the group “Islamic State of Iraq and Al-Sham” (hereafter ISIS), anti-government armed groups, and the Kurdish-dominated People’s Protection Units (YPG) / Syrian Democratic Forces (SDF), exercise control and influence in different parts of the country. The conflict in Syria is characterized by grave violations of IHL and international human rights law by all parties to the conflict. The intensity of fighting fluctuates among different regions, depending on the actors involved, their strategic objectives, and local and broader conflict dynamics.
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At the time of writing, Syrian government forces hold control over all major urban centres, including the capital Damascus and most of its surroundings, Aleppo, Homs, Hama, parts of Dera’a city, much of the area along the border with Lebanon, as well as the coastal region including Lattakia and Tartous Governorates.
ISIS has reportedly come under increasing pressure by multiple local and international actors and has lost control over significant territory, border crossings and supply lines, mainly in the governorates of Aleppo, Deir Ez-Zour, and Raqqa, the Homs and Hama countryside and along the Syria-Lebanon border. Since November 2016, the SDF have gradually advanced on the city of Raqqa, the self-declared capital of ISIS proclaimed by the group in 2014. On 20 October 2017, the SDF announced the “total liberation of Raqqa”.
At the time of writing, ISIS retains control of the town of Albu Kamal (Deir Ez-Zour Governorate) and largely unpopulated areas along the Euphrates Valley between the city of Deir Ez-Zour and the Syria-Iraq border; in parts of Homs Governorate; in Yarmouk (Damascus Governorate); and in south-western Syria through its affiliate, the Khaled bin Al-Waleed Army.
At the time of writing, an array of anti-government armed groups – with diverse ideological and political backgrounds and shifting alliances or coalitions – reportedly continue to operate mainly in Idlib Governorate, parts of rural Aleppo Governorate, the northern parts of Homs and Hama Governorates, the southern Governorates of Dera’a and Quneitra, as well as in parts of Rural Damascus Governorate. Since August 2016, following the launch of Operation “Euphrates Shield”, Turkey and Syrian anti-government armed groups have taken de facto control of the area between Jarablus and Azaz from ISIS in northern Syria. In addition to fighting against the Government and ISIS, rival armed groups have reportedly repeatedly battled over power, territory and political/ideological differences. In July 2017, rising tensions led to an escalation in fighting between two of the most powerful anti-government armed groups, Ahrar Al-Sham and Hay’at Tahrir Al-Sham (HTS), the Al-Qaeda-linked alliance dominated by Jabhat Fatah Al-Sham. After the former withdrew from Idlib city and the Bab Al-Hawa border crossing with Turkey, HTS further consolidated its dominant position in large parts of Idlib Governorate and the surrounding opposition-controlled areas.
The YPG has reportedly consolidated its control over the de facto self-administered Kurdish areas along the Syria-Turkey border, namely the “cantons” of Hassakeh, Kobane (Ayn Al-Arab) and Afrin. Under the umbrella of the SDF, it has also captured previously ISIS-held territories, including, in 2016, the towns of Menbij and Tel Rifaat (both in Aleppo Governorate) and Shaddadi (Hassakeh Governorate), and, on 20 October 2017, the city of Raqqa. Since September 2017, the SDF and its allies, in an offensive separate from that led by government forces, have also pushed from the north-east into Deir Ez-Zour Governorate.
In July 2017, mounting tensions between the YPG and Turkish-backed forces reportedly escalated into intermittent fighting in north-west Syria.
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B. Civilian Casualties
Estimates of the number of persons killed as a result of the conflict since 2011 range from 109,000 to 500,000. In addition, tens of thousands of Syrians remain reportedly missing. Based on statistics from the Violation Documentation Center (VDC), the greatest number of civilian casualties has been recorded in the Governorate of Aleppo, followed by Rural Damascus, Homs, Idlib, Dera’a, Deir Ez-Zour, Hama, Damascus and Raqqa Governorates. The vast majority of civilians are reported to have died as a result of aerial bombardment and shelling. In areas controlled by extremist factions, there are growing concerns with the mounting number of civilian victims as a result of intensified airstrikes.
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According to the UN and human rights observers, arbitrary arrest and enforced disappearance, detention in life-threatening conditions, torture and other forms of ill-treatment, and summary or extra-judicial execution are perpetrated systematically and on a wide scale by the Syrian Government, primarily against those opposing or perceived to be opposing the government. The use of sexual violence as a form of torture against men, women and children is reported to be widespread. In a number of instances, government forces were reported to recruit and use children in support functions and hostilities.
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Civilians are reportedly prevented from leaving areas held by ISIS except to other areas controlled by the group, exposing them to great risks in the face of increased airstrikes against remaining ISIS-held locations. ISIS is further reported to use civilians as human shields as part of a military tactic. In areas currently or formerly under de facto ISIS control, civilians are reportedly killed and injured by landmines laid indiscriminately by ISIS. According to reports, ISIS also continues to extensively recruit men and children for use in military operations, including suicide bombing missions and the torture and execution of civilians and hors de combat fighters. Until September 2017, ISIS had reportedly maintained a siege of densely populated districts of Deir Ez-Zour city for over three years, which had left its inhabitants with minimum access to food, medicine, water, electricity and fuel. ISIS reportedly continues to intentionally destroy property of cultural or religious significance.
Real or perceived dissent to the authority of ISIS or infringements of its rules, which are based on a strict interpretation of Shari’a law, are reported to result in severe punishment, including deprivation of liberty, torture, cruel, inhuman and degrading punishment, as well as execution, including of children.
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4) People’s Protection Units (YPG)
… In some instances, the YPG has been implicated in the forcible displacement of mostly non-Kurdish populations, including reportedly on account of these populations’ perceived ties with ISIS or for security/military reasons.
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D. Forced Displacement and Returns
Due to the circumstances described above, the situation in Syria has become the world’s single largest driver of forced displacement with over half of the population displaced, including over 6.3 million persons displaced inside Syria (as of March 2017), over five million registered refugees who have fled to neighbouring countries and North Africa, and hundreds of thousands who arrived as asylum-seekers in Europe.
In 2016 alone, more than two million people have been recorded as newly displaced inside Syria, with additional new displacement occurring in 2017 in nearly all parts of Syria. The deliberate targeting of civilians and civilian infrastructure, including of essential basic services such as water and electricity, as well as the failure of parties to the conflict to protect civilians are reported to be the main causes of displacement. Furthermore, people are reportedly increasingly forced to relocate within Syria due to collapsing services in their home areas, including inadequate health care and loss of livelihoods against a background of rising living expenses. Multiple displacements are a striking feature of the Syria conflict as frontlines keep shifting and formerly safer areas become (again) embroiled in conflict. Incidents of internally displaced persons (IDPs) being targeted, displaced and killed in attacks continue to be recorded.
In addition to large-scale internal displacement, over 5.3 million Syrians have taken refuge in neighbouring countries and in North Africa, with over 3.25 million Syrian refugees registered in Turkey; more than one million in Lebanon; 654,500 in Jordan; 244,000 in Iraq; 124,500 in Egypt; and over 30,000 in other countries of North Africa. Amid mounting demographic, economic, political, security, and social pressures in the region, governments of host countries have increasingly resorted to the introduction of border management measures to restrict arrivals, leaving thousands of vulnerable people stranded inside Syria, unable to seek safety. The numbers of cases of forcible returns and denial of access are reportedly increasing.
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UNHCR maintains that Syrian civilians and former habitual residents of Syria falling under the below mentioned risk profiles (except for sub-categories within risk profiles 3 and 8) are likely to be in need of international refugee protection. … :
1. Persons opposing, or perceived to be opposing, the government, including, but not limited to, members of political opposition parties; protestors, activists and others perceived to be sympathizing with the opposition; persons perceived to be members of anti-government armed groups; government and Ba’ath Party officials who abandoned their positions; and civilian inhabitants of urban neighbourhoods, towns and villages perceived to be opposing the government.
2. Draft evaders and deserters from the Armed Forces.
3. Persons supporting, or perceived to be supporting, the government, including, but not limited to, government officials and members of government-affiliated parties; members and perceived members of government forces and civilians perceived to be collaborating with government forces; and civilian inhabitants of urban neighbourhoods, towns and villages perceived to be supporting the government.
4. Persons opposing, or perceived to be opposing, ISIS in areas under its de facto control or influence.
5. Persons opposing, or perceived to be opposing, anti-government armed groups in areas under their de facto control or influence.
6. Persons opposing, or perceived to be opposing, the PYD/YPG in areas under their de facto control.
7. Certain professionals, in particular journalists, other media professionals and citizen journalists; academics and teachers; doctors and other health professionals; humanitarian workers, human rights defenders; and artists.
8. Members of religious and minority ethnic groups.
9. Persons perceived as contravening Shari’a Law in areas under the control or influence of extremist Islamist armed groups.
10. Women and girls with certain profiles or in specific circumstances, in particular women without male protection; women who are victims of or at risk of sexual violence, early and forced marriage, domestic violence, “honour crimes” or trafficking.
11. Children with certain profiles or in specific circumstances, in particular children victims of or at risk of underage and forced recruitment, sexual and domestic violence, child labour, trafficking, and systematic denial of access to education.
12. Persons of diverse sexual orientations and/or gender identities.
188 See above “Conflict and Security Situation and Recent Political Developments” (Section II.A) and sources referenced therein.
13. Palestinian refugees.
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1) Persons Opposing, or Perceived to Be Opposing, the Government
The Syrian Government has shown no or very limited tolerance for political dissent even prior to the current conflict. Popular anti-government protests that erupted in March 2011 and the ensuing armed uprising have reportedly been met with staunch repression and violence by government forces. In determining what constitutes political dissent, the government is reported to apply very broad criteria: any criticism, opposition or even insufficient loyalty to the government expressed in any way or form – including peaceful protests, whether organized or spontaneous, as part of a political party or at an individual level, virtual (on the internet) or in the streets – has reportedly resulted in serious repercussions for the individual.
Numerous members of political opposition parties, persons who had participated in protests against the government, activists, draft evaders and deserters, professionals (e.g. journalists and citizen journalists, aid workers, doctors, academics), and others who might be perceived as holding antigovernment views have reportedly been subjected to travel bans, expropriation and destruction of private property, forced displacement, arbitrary arrest and incommunicado detention, torture and other forms of ill-treatment, and summary or extra-judicial execution. An individual’s real or perceived political opposition is reportedly also frequently attributed to those around him/her, including family members, neighbours and colleagues.
Since 2011, numerous reports speak of the widespread and systematic arbitrary arrest and enforced disappearance of men and teenage boys, particularly, but not exclusively, Sunni Arabs from areas currently or previously under control of anti-government armed groups. According to reports, they are targeted on account of their perceived participation in hostilities against the government, their perceived aid to armed groups or, more generally, their perceived anti-government views. Often, arrests are reported to be based merely on the fact that a man or boy originates from an area associated with the opposition. Widespread arrests reportedly occur mainly at checkpoints, during raids in recaptured areas and during evacuations, but also in public places (including hospitals, government offices, airports and border crossings). The fact that a man may have also evaded draft or deserted from the army would likely add to the perception of antigovernment opinion and compound the risk of arrest, forced conscription, and serious ill-treatment. Syrian males of fighting age, including teenage boys, are therefore reportedly avoiding passing through government checkpoints for fear that they will be abused, killed, or disappeared.
Reports indicate that the government generally continues to consider civilians living in or originating from locations that have seen popular protests and/or have a presence of, or have (even temporarily) fallen under control of anti-government armed groups, to be associated with the armed opposition. According to these reports, this is part of a broader policy where civilians are targeted by association, on account of being present in or originating from an area considered to be opposing the government and/or supporting the antigovernment armed groups. Civilians in these locations are reportedly subjected to a variety of punitive measures, including arrests; torture; sexual violence, including the use of rape as a weapon of war; extra-judicial executions committed by government and pro-government forces during ground incursions, house searches and at checkpoints; as well as extensive artillery shelling and aerial bombardment. In a number of areas held by anti-government armed groups, the government is reported to have laid sieges, thereby systematically depriving civilians of basic necessities such as food and medical assistance. Persons carrying food or other basic supplies into a besieged area, or seeking to flee from a besieged area, are reported to be targeted for harassment, arrest, detention, torture and killing. The government’s siege tactics against areas
under control of anti-government armed groups are reportedly aimed at punishing civilians in these areas, eroding the armed opposition’s popular base and forcing civilians and fighters into submission.
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2) Draft Evaders and Deserters from the Armed Forces
In Syria, draft evasion is a criminal offence. Independent observers note that draft evasion is likely considered by the government as a political, anti-government act, which may lead to punishment of the person who attempted to evade the draft beyond the relevant sanctions for the criminal offence of draft evasion, including harsher treatment during arrest, interrogation, detention and, once deployed, during military service. In practice, rather than facing criminal sanctions (imprisonment) under the Military Penal Code, draft evaders are reportedly deployed to a frontline position within days or weeks of their arrest, often with only minimal training.
As a result of high rates of draft evasion, desertions, and casualties, the army and security agencies have reportedly intensified their efforts to conscript Syrian men and to mobilize reservists. In addition, efforts have reportedly been stepped up to identify and arrest draft evaders, including at mobile and fixed checkpoints, during raids, house searches and searches on public transportation. In areas retaken by government forces from anti-government armed groups, men of mandatory military service or reserve duty age have reportedly been arrested in large numbers for the purpose of conscripting them into the army.
Draft evaders in detention face a risk of torture and other forms of ill-treatment, a practice reported to be endemic in Syria.
In addition to the act of draft evasion itself being perceived as a political act, other elements of a draft evader’s profile may further contribute to that person being perceived as not sufficiently loyal to the government and/or supporting the (political or armed) opposition, which would put the draft evader at further risk of ill-treatment over and beyond punishment under the applicable legal framework for draft evasion.
An increasing level of arbitrariness is reportedly applied to rules and regulations regarding military service, particularly in relation to deferral and exemption procedures. Increasingly, the government has reportedly also called up previously “protected populations” such as university students, civil servants and prisoners for compulsory military service. Many of those serving their compulsory military service have reportedly seen their terms extended beyond the 18 months prescribed by law. According to reports, men who are discharged following the end of their mandatory service are often automatically enlisted into the army reserves. Many men of conscription or reservist age are reported to avoid movements, have gone into hiding, relocate to areas held by anti-government armed groups , or have fled the country for fear of harassment at checkpoints and forced conscription.
Men returning from abroad are reported to be consistently checked for their military service records [emphasis added].Desertions from the armed forces have reportedly been most prevalent in the early years of the conflict, but have since become a rare occurrence. Desertion is punishable under the 1950 Military Penal Code, as amended, and entails, depending on the circumstances, imprisonment or the death penalty. These legal provisions notwithstanding, according to reports, individuals who refused orders to shoot, deserted or were suspected of planning their desertion have commonly not been formally charged with an offence. Rather, they have reportedly either been subjected to immediate execution at the time of desertion or when caught, or have been subjected to arbitrary arrest, incommunicado detention, torture and extra-judicial execution; or have been ordered to return to their military unit following an investigation.
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8) Members of Religious and Minority Ethnic Groups
The situation of members of religious and minority ethnic groups varies from area to area, and depends in particular on the actor in control of the area, these actors’ views and perceptions vis-à-vis members of other religious and minority ethnic groups, as well as the specific conflict developments in these areas.
As the conflict evolved, religious and minority ethnic groups have reportedly increasingly aligned themselves, or are perceived to have aligned themselves, with parties to the conflict, with minority religious and ethnic communities largely associated with the government, fighting a mainly Sunni Arab opposition. Since 2011, previously religiously mixed neighbourhoods, towns, and villages have reportedly increasingly become segregated along religious lines, including as a result of population transfers. Parties to the conflict reportedly employ sectarian rhetoric to justify attacks against opposing parties and those perceived to be supporting them. The reported rise in pro-government forces composed mostly of members from religious minorities has reportedly further fostered sectarian hostilities.
… On various occasions, military advances by ISIS, Jabhat Fatah Al-Sham and other anti-government armed groups into areas inhabited by members of religious minority groups have reportedly been accompanied by abductions and killings of civilians, looting and destruction of homes and other properties, and the desecration of religious sites. Such abuses have reportedly been motivated by either political (perceived support for the government) or religious reasons (with members of religious and ethnic minority groups considered as “non-believers” by ISIS, Jabhat Fatah Al-Sham and others), or a combination of both.
In areas under control of extremist or hardline Islamist groups such as ISIS and Jabhat Fatah Al-Sham, civilians (Sunni and non-Sunni) are reportedly at risk of being abducted, tortured and killed for not adhering to these groups’ strict interpretation of Islam, including on the basis of accusations such as apostasy, blasphemy and indecent behaviour. Some religious figures have reportedly been kidnapped or killed, and Islamist extremists have reportedly deliberately desecrated or destroyed religious buildings, including Christian churches and Sufi, Alawite and Shi’ite mosques and shrines. In areas, which fell under the de facto control of ISIS, the remaining Christians were reportedly told that they must either face death, pay tax for their “protection” as non-Muslim citizens of an Islamic state (“jiziya”), or convert to Islam.
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9) Persons Perceived as Contravening Shari’a Law in Areas under the Control or Influence of Extremist Islamist Armed Groups
In areas under de facto control of hardline Sunni Islamist armed groups, including ISIS and Jabhat Fatah Al-Sham, individuals who do not share these groups’ strict interpretations of religion and Islamic law are reportedly subjected to serious human rights abuses. Those who are reportedly particularly affected include women,319 persons of diverse sexual orientations and/or gender identities, and members of religious minority groups.321 In areas under its control, ISIS reportedly imposes strict regulations in relation to people’s dress, behaviour and social interactions, banning activities deemed “un-Islamic” such as playing or listening to music, smoking, possessing alcohol, trading during prayer times, having tattoos, and not fasting during Ramadan. Civilians perceived to contravene the group’s strict interpretation of Islamic principles, norms and values are reportedly subjected to abduction, deprivation of liberty, physical punishment including mutilation, and execution, often following a verdict issued by an irregularly constituted “court” after a “trial” falling short of international due process standards. Reports further suggest that fathers, brothers and husbands are held responsible and punished for alleged infractions on the part of their female relatives. [emphasis added]
Other extremist Islamist armed groups, including Jabhat Fatah Al-Sham, have reportedly in some cases also implemented punishments, including execution, for perceived infringements of their strict interpretations of Islam and Islamic law.

The Australian Department of Home Affairs, COISS section report, ‘Syria Situational Update March 2018’, contains the following:
In November 2017, the United Nations High Commissioner for Refugees (UNHCR) assessed that people from Syria with the following profiles are likely to be in need of international refugee protection:
•Persons opposing, or perceived to be opposing, the government
•Draft evaders and deserters from the armed forces
•Persons supporting, or perceived to be supporting, the government
•Persons opposing, or perceived to be opposing, the Islamic State (IS) in areas under its de facto control or influence
•Persons opposing, or perceived to be opposing, anti-government armed groups in areas under their de facto control or influence
•Persons opposing, or perceived to be opposing, the Democratic Union Party (PYD)/People’s Protection Units (YPG)
•Certain professionals, including journalists, academics and teachers, doctors and other health professionals, humanitarian workers, human rights defenders and artists
•Members of religious and minority ethnic groups
•Persons perceived to be contravening Shari’a law in areas under the control or influence of extremist Islamist armed groups
•Women and girls with certain profiles or in specific circumstances
•Children with certain profiles or in specific circumstances
•Persons of diverse sexual orientations and/or gender identities
•Palestinian refugees
This is broadly in line with conclusions reached in DFAT’S October 2017 Thematic Report on Syria.
Security situation
The security situation remains extremely dangerous as nearly all parts of the country continue to experience violence. Civilians remain the overwhelming majority of casualties in the conflict.
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Recent security developments have focused on campaigns by the Syrian government to retake remaining rebel-held areas and Turkey’s growing influence in the country:
·During 2018, Eastern Ghouta has been the focus of fierce ground and air offensives by President Assad’s forces, who are attempting to retake the city from rebel groups. Eastern Ghouta has been under siege by President Assad’s forces since 2013 and is the last opposition stronghold near Damascus. As of 13 March 2018, fighting has killed more than 1,000 civilians in nearly a month. Syrian government forces are close to taking full control of the enclave. Thousands of residents are currently being evacuated from the region to Idlib, under a deal reached between the Russian army and two main rebel groups in the area. A similar deal is yet to be reached with the third, and final, key rebel group in the area. In recent weeks, 45,000 residents have also fled the city.
·In March 2018, Turkish forces took control of the predominately-Kurdish city of Afrin, near the border with Turkey. In January 2018, Turkey and Free Syrian Army (FSA) forces launched the ‘Operation Olive Branch’ military operation to remove Kurdish YPG fighters from the city. Between 100,000 and 150,000 people have been displaced from Afrin. Turkey has stated it plans to extend the campaign further into Syria, onto Manbij.
·Since the beginning of 2018, Idlib has experienced intensified fighting between rebel groups and Syrian armed forces, who are attempting to retake the city. Idlib is the largest remaining rebel stronghold in the country. Despite being declared a ‘de-escalation’ zone, Idlib has experienced regular attacks and air strikes. Turkey has established observation posts in Idlib to monitor the implementation of the de-escalation agreement. IS remains present in the region, where it clashed with government troops and rebel fighters in February. At least 300,000 people have been displaced from Idlib since mid-December 2017; many had been previously displaced from other regions of Syria.
·On 2 November 2017, the government recaptured Deir-Ezzour in eastern Syria, the last major city held by IS in the country. Syrian forces entered the city in September 2017, breaking a three year siege by IS on the area. Heavy Russian airstrikes and Syrian artillery fire have left much of the city in ruins and caused civilian casualties. Mines and other explosives are being cleared from the city.
·In early November 2017, Syrian government forces and Iranian-backed militias retook the eastern town of Albu Kamal, IS’s last major stronghold and significant urban area held by the group in Syria. IS militants subsequently staged a counter-attack using sleeper cells. On 19 November, Syrian government forces stated they had complete control over Albu Kamal. IS left a network of mines and bombs throughout the town.
·On 17 October 2017, an alliance of US-backed Kurdish and Arab Syrian Democratic Forces (SDF) captured IS’s ‘de facto’ capital city, Raqqah, after months of intense airstrikes and fighting. IS captured the city in 2014. Airstrikes and ground fighting during the offensive caused significant civilian casualties and displacement. Since the beginning of the anti-IS offensive in Raqqah in November 2016, more than 430,000 people have been displaced within and from the governorate.
·The implementation of ‘de-escalation’ and ‘de-confliction’ areas have had limited success. For instance, during 2018 there has been significant fighting and civilian casualties in the besieged rebel-held area of Eastern Ghouta and in rebel-held Idlib, despite both being ‘de-escalation’ zones where a temporary truces are purportedly in place.
·Local ceasefire or ‘reconciliation’ agreements between government and anti-government militias brokered in some areas have led to a reduction in localised fighting in some areas; however, have resulted in the forced displacement of civilians perceived as supporting anti-government militias.
Political situation
The political future of Syria remains uncertain. Recent key developments include:
•Peace talks continue to make little progress. The eighth round of UN peace talks were held in Geneva in December 2017 and ended without progress. Previous rounds of talks have failed, with the government refusing to accept the opposition’s demand that President Assad play no role in any interim post-war government.
•In January 2018, a parallel peace conference sponsored by Russia, Turkey and Iran was held in Sochi, Russia. It was attended by mostly pro-Assad groups and the UN Syrian envoy. The main opposition bloc, the Syrian Negotiations Commission (SNC – also known as the Higher Negotiation Committee – HNC) boycotted it. It was agreed at the conference that a commission, to be controlled by the UN, would be established to draft a new Syrian constitution.
•On 24 February 2018, the UN Security Council voted for a 30-day cessation of hostilities across Syria and humanitarian access to all requested areas. Government and opposition forces did not obey the ceasefire.
•…
Availability of state protection
Effective state protection is largely unavailable in Syria. The Syrian conflict is characterised by grave violations of international humanitarian and human rights law by all parties to the conflict, including the deliberate targeting of civilians and war crimes.
The government’s ability to maintain effective control and provide adequate state protection is weak due to its pre-occupation with the conflict. DFAT reports that in government-controlled areas that have been relatively unaffected by conflict, such as parts of Damascus, normal state protection procedures are largely in place. However, the government has committed extensive human rights abuses against civilians.
Opposition groups have established alternative structures in areas under their control. Syria is deeply fractured as parties to the conflict control and influence different areas of the country. In areas liberated from IS, governance structures remain unclear. The difficulty of governing these areas in the absence of a broader political settlement in the Syrian conflict will be further complicated by multiple and competing forces on the ground, ethnic tensions between governing forces and the local population and tribal issues.
Forced detention, arbitrary detention and extrajudicial killings
Forced disappearances, extrajudicial killings and arbitrary detention by Syrian government forces and anti-government armed groups occur with impunity. Tens of thousands of people have been forcibly disappeared or abducted since 2011. Arbitrary arrests have been documented when territory is recaptured from anti-government groups by government forces, as part of evacuation deals and in connection with conscription.
Prison conditions
Prison conditions in Syria are extremely poor. Torture and other forms of ill-treatment are widespread within detention facilities operated by government and anti-government forces. …
Situation for returnees and possibility of internal relocation
•As of March 2017, there were over 6.3 million internally displaced persons (IDPs) in Syria. In the 12 months to October 2017, one million people were newly displaced.
•As of October 2017, there were over 5.2 million Syrian refugees in neighbouring countries.
•Between January and mid-September 2017, UNHCR recorded 57,000 Syrian refugees returning from neighbouring countries, predominately from Turkey.
•13.1 million people in Syria require humanitarian assistance.
Conditions for returnees and IDPs remain poor. UNHCR reports that conditions are not yet safe for returnees. IDPs continue to be targeted, displaced and killed in attacks. UNHCR assesses that internal relocation is not a viable option due to the multitude and complexity of conflicts and the deeply entrenched suspicions about persons of different backgrounds and origins.
Between January and October 2017, nearly 715,000 displaced Syrians returned to their places of origin within Syria. The majority of those returning had been displaced within Syria, with 58 per cent having returned from Aleppo governorate and 12 per cent from Raqqa governorate. Of those who returned home, 37,635 were displaced again, after their return. Reasons given for return include to protect assets and property, perceived improvement in the security situation, social and cultural issues hindering integration or safety in area of displacement, improvement in the economic situation in area of return and worsening economic situation in their area of displacement. UNHCR notes, however, that some people have been forcibly returned and people are increasingly being denied access to their home areas. It is unclear how many people who have returned to their home areas have faced secondary displacement.
The conditions that those returning to their original place of origin face are poor. Security improvements in many return areas are uncertain. Returnees, including to recently liberated areas, may face the possibility of renewed or ongoing fighting, recruitment by armed groups, arrest, detention and other forms of physical violence. IDPs and refugees returning to, and traveling through, Syria must pass through checkpoints risking detention by government or anti-government forces. In liberated regions, IDPs have experienced harassment and extortion. Syrian refugee returnees and IDPs report being questioned for hours by government militias and witnessing people being killed at checkpoints.
Infrastructure and availability of humanitarian assistance
The ongoing conflict has affected civilian infrastructure. Government and anti-government forces regularly target civilian infrastructure including health-care facilities, schools, markets, places of worship and basic services such as water and electricity. Extensive reconstruction is required; Syria’s physical infrastructure, education and health systems have been largely destroyed and housing stock significantly damaged. People are increasingly relocating within Syria due to collapsing services, loss of livelihoods and rising living expenses in their home areas, placing additional strain on the remaining services.
Areas recently liberated from IS rule are particularly affected. The UN Security Council reports that most of Raqqah city has been damaged or destroyed due to fighting. While thousands of people have returned to certain areas of Raqqah city after the SDF undertook unexploded ordnance clearance operations, a complex array of explosive hazards, including unexploded ordinance and landmines, remain.
The delivery of humanitarian assistance to people in need remains extremely challenging in many areas of the country due to the active conflict, shifting conflict lines and deliberate restrictions imposed by parties to the conflict in besieged and hard-to-reach locations.
DFAT’s ‘Thematic Report On Conditions In Syria’, published on 23 October 2017, contains the following:
… In 1970, the current President’s father, Hafiz al-Assad, came to power following a coup. Hafiz al-Assad was initially popular as he attempted to build unity in Syria. However, his concentration of power in the Presidency proved divisive and the roles of other institutions that provided checks and balances diminished. The dominance of fellow Alawites (and other individuals with strong links to Assad) in the government increased. Uprisings began in the mid-1970s, including an uprising led by the Muslim Brotherhood in 1982 that led to thousands of civilian deaths and the detention of many opponents.
Hafiz al-Assad’s son, Bashar al-Assad (Assad), became president upon his father’s death in 2000. While Assad initially signalled openness to political diversity in Syria, he did little to implement it. In March 2011, peaceful protests began after authorities detained and reportedly tortured 15 young men for having written graffiti in support of the region-wide movement referred to as the ‘Arab Spring’. As in other countries involved in the Arab Spring, a lack of political freedoms combined with economic woes in Syria to fuel resentment towards the government. The government responded with increasing aggression, including through arbitrary detention and extra-judicial killings of perceived opponents.
By July 2011, military defectors formed the Free Syrian Army with the aim of overthrowing the government. Syria slid into escalating conflict. Other opposition groups quickly emerged. The emergence of ISIL (Islamic State in Iraq and the Levant, also known as Daesh) added complexity to instability in Syria. Despite a range of initiatives aimed at brokering a resolution, some of which led to temporary reductions in violence, all initiatives have failed to end the violence, which has been characterised by indiscriminate attacks on civilians.
More than six years after the beginning of the conflict, the humanitarian situation in Syria continues to deteriorate. Conflict remains the principal cause of Syria’s humanitarian crisis. The United Nations has not reported on the official death toll since 2014 after acknowledging it could no longer verify information. However, in 2016, the UN special envoy for Syria, Staffan de Mistura, estimated that the death toll had exceeded 400,000 people. According to the UN, as at July 2017, 13.5 million people were in need of humanitarian assistance inside Syria, including 4.6 million people in hard-to-reach and besieged areas.
…
SECURITY SITUATION
The security situation in Syria remains extremely dangerous. Large-scale military operations involving small arms, artillery and airstrikes continue in many parts of the country. The UN continues to receive credible reports of the use of barrel bombs and chemical weapons by the government and ISIL has committed many atrocities, including using chemical weapons. Airstrikes continue to kill and injure civilians and to damage infrastructure across Syria, including schools and hospitals.
The Organisation for the Prohibition of Chemical Weapons (OPCW) – UN Joint Investigative Mechanism (JIM) has found that Syrian government forces used chemical weapons on at least three occasions and ISIL used chemical weapons (mustard gas) on at least one occasion. There are credible reports of the broader use of chemical weapons, including chlorine-filled munitions, and the release of sarin gas (or a sarin-like substance) at Khan Sheikhun in April 2017. There are credible reports that, aside from its proven use in 2015, ISIL has used sulphur mustard gas on other occasions.
In Astana in May 2017, Russia, Turkey and Iran agreed to establish four de-escalation zones in Idlib, northern Homs, Eastern Ghouta (in the outskirts of Damascus) and the south-western governorates. As at August 2017, this has led to some reduction in violence, but no significant improvement in humanitarian access. Russia, the United States and Jordan have brokered a ceasefire zone in south-western Syria. These moves follow a series of temporary ceasefires throughout 2016.
While in-country contacts suggest some areas of Syria (mainly government-controlled areas that have remained under government control throughout the conflict, such as Damascus) are relatively safer, the potential remains for the situation to deteriorate rapidly and without notice. The presence of pro-government forces and their increasing ability to establish and maintain checkpoints throughout Damascus has increased indiscriminate targeting of civilians perceived to have links to opposition or competing pro-government forces. Even in relatively safe areas, the risk of bombing and attacks persists as non-state armed groups execute asymmetric attacks behind government lines, or against each other.
….
International actors, including Russia and Iran (which support the Syrian government) and the United States, some European countries and Gulf states (which have supported some opposition groups), are involved to differing degrees in the current conflict. Turkey has a strong focus on the north of the country, including areas dominated by Kurds.
DFAT assesses that, while security conditions may differ across the country depending on who controls any given area and whether it is contested, overall the situation remains highly volatile. All civilians are vulnerable to physical harm caused by deliberate targeting, politically motivated or sectarian-related detention and indiscriminate violence. DFAT assesses that the authorities may view individuals who have left Syria with suspicion. [emphasis added]
…
The current conflict has affected every political, religious and ethnic group. Individuals have suffered and continue to suffer violence based on their location, their perceived political and religious affiliation, and their ethnicity. There is some overlap between these issues: some ethnic or religious groups are more closely associated with pro- or anti-government elements. Overall DFAT assesses that no group in Syria is fully protected from the conflict.
…
Christians
Despite their minority status (approximately 10 per cent of the population), Christians are considered part of the elite within Syria and have enjoyed government protection. The founder of the ruling Ba’ath Party was a Christian and Christians are represented throughout the bureaucracy. The government has reportedly armed some Christians, including ‘Popular Committees’ dominated by young Christians. Christians living in government-controlled areas are unlikely to be targeted by the government on the basis of their religious identity, although, like others, individuals are likely to be targeted if perceived to oppose the government.
According to the US State Department’s 2015 Religious Freedom Report, societal tolerance towards Christians in non-government controlled areas has continued to decrease. …
In areas under its control, ISIL has kidnapped, raped, and murdered Christians. It has forced some to convert to Islam, or to pay jizya (a protection tax for non-Muslims living under Muslim rule). … Jabhat Fatah al-Sham has also killed Christians, whom they consider ‘infidels’, on numerous occasions.
…
Sunnis
The government or pro-government forces are more likely to target Sunnis for their perceived support of the opposition, rather than on religious grounds. This is largely because the armed opposition groups are predominantly Sunni, and find shelter and support in Sunni areas. In-country contacts have provided some examples of Sunnis who support the government being able to live safely in government-controlled areas, including Damascus.
As the conflict has unfolded and intensified, government bombardment of Sunni-dominated areas has increased. In many areas, Sunnis’ religious affiliation is viewed as a proxy for political allegiance. The government and pro-government forces have killed, arrested and physically abused Sunnis in an effort to defeat the armed insurrection. According to the US State Department, pro-government forces have forcibly displaced Sunnis, with the reported intention of attempting to alter the sectarian demography in Sunni-dominated areas.
In areas controlled by ISIL or other Islamist groups (such as Jabhat Fatah al-Sham), Sunnis have had an extremist interpretation of Islam imposed on them, and have been coerced into supporting ISIL or other Islamist extremists. In areas under its control, ISIL has imposed its version of sharia law, and continues to carry out executions and severe corporal punishments (amputations, stoning) on those perceived to violate its strict religious rules.
POLITICAL OPINION (ACTUAL OR IMPUTED)
… In opposition-controlled areas, where application of the rule of law varies widely, the controlling non-state armed group is likely to perceive any opposition as a threat to be met with violence. Armed groups have reportedly targeted people with family members working for the government in other parts of the country, because they are perceived to support the government. The extent of this practice is unknown.
…
Draft Evaders, Military Defectors and Deserters
The government continues to send conscription notices to individuals in areas under its control and has the will and capacity to arrest those who do not comply. Conscription has traditionally applied to males between the age of 18 and 42. In-country contacts report that the upper age limit has been raised to 50 and that individuals who have previously completed their military conscription are being re-conscripted as the conflict has continued and the government has needed to bolster its forces.
In-country contacts report that a wish to avoid conscription was a reason that many families have fled Syria, although this is becoming increasingly difficult with tighter restrictions placed on Syrians’ ability to flee to surrounding countries. While the individuals involved are compelled to commence military service or gaoled by the state, the government does not usually pursue the families of draft dodgers.
Prior to the conflict, exemptions were possible for men who were the only sons in the family. Others obtained exemption by paying a fee. Individuals undertaking tertiary studies were able to obtain a postponement. Obtaining exemption from military service has become harder since the conflict began.
Syrians who have served in the military, or who are exempt from military service, receive papers that show this status. Males of military age stopped at state checkpoints are usually required to show these papers; failure to do so often results in arrest or violence.
…
DFAT assesses that authorities may view individuals who have left Syria with suspicion.

There are scattered reports on media sites regarding attacks and bombings in the Ash Warwar district of Damascus. For example a Youtube clip of a bombardment contains the following text:
Citizen journalists document bombardment on Barzeh district in northeast Damascus. The commentary on the video describes bombardment from mountain post on a run by Branch 211. Violence in this disputed area intensified after April 2. Regime forces use the heights surrounding the district, including the Alawite populated town of Eish al-Warwar, to target it with mortars and snipers. Surface-to-Surface missiles have been used against Barzeh as well. Barzeh LCC claimed that the FSA has killed nearly 126 elements of the army and shabiha in the last 4 days. The LCC has published another video of FSA fighters targeting soldiers on the roof of Teshrine [October] Military Hospital in the area.[4]
[4]
A report from January 2018 on the Syrian Observatory for Human Rights website states:
95 people were killed yesterday including 30 members of the regime forces and their allied militiamen, and 26 citizens were killed in aerial and artillery shelling and other circumstances. In the province of Damascus, a man was killed in shelling on places in Ash Al-Warwar area controlled by the regime forces.[5]
[5] >
Another 2013 report on the Syrian Observatory for Human Rights website states:
Damascus province: Rebel fighters from the Barza neighbourhood targeted the A’sh al-Warwar area that is inhabited mainly by civilians with a Muslim A’lawi background, no reports of casualties or injures yet. At least 20 regular soldiers were killed by clashes in the southern neighbourhoods earlier this morning.[6]
[6] >
A February 2018 report on the Syrian War Daily website states:
Rebel forces in the East Ghouta shelled Al-Abbasiyin and Ash al-Warwar neighborhoods of the city of Damascus. According to the Syrian Arab News Agency, one civilian was wounded by the shelling of Ash al-Warwar neighborhood.[7]
[7] >
A March 2018 report on the Syrian War Daily website states:
Syrian Arab Army’s artillery and Syrian Arab Air Force targeted Douma, Hazeh, Beit Sawa, Jisreen, Hammouriyah, and Saqba in the East Ghouta. According to the Syrian Civil Defense (The White Helmets), nine civilians were killed and several wounded by the targeting of Douma. Hazeh’s local council stated that five civilians were killed by the targeting of the locality.
Rebel forces in the East Ghouta shelled Jaramana, as well as Bab Touma and Ash al-Warwar areas of the city of Damascus. According to the Syrian Arab News Agency, three civilians were killed and 15 wounded by the shelling of the aforementioned localities…. Rebel ‘Bianahum Zulimu’ operations room, led by Ahrar al-Sham reportedly recaptured several points in the vicinity of Harasta from the Syrian Arab Army, according to Ahrar al-Sham’s spokesman in the East Ghouta, Munthir Fares.[8]
2001
[8] >
The USDOS Human Rights report for Syria, covering the year 2001, contains the following:
Despite the existence of some institutions of democratic government, the political system places virtually absolute authority in the hands of the President. …
The powerful role of the security services in government, which extends beyond strictly security matters, stems in part from the state of emergency that has been in place almost continuously since 1963. The Government justifies martial law because of the state of war with Israel and past threats from terrorist groups. Syrian Military Intelligence and Air Force Intelligence are military agencies, while General Security, State Security, and Political Security come under the purview of the Ministry of Interior. The branches of the security services operate independently of each other and outside the legal system. Their members commit serious human rights abuses….
Continuing serious abuses include the use of torture in detention; poor prison conditions; arbitrary arrest and detention; prolonged detention without trial; fundamentally unfair trials in the security courts; an inefficient judiciary that suffers from corruption and, at times, political influence; and infringement on privacy rights….
Arbitrary arrest and detention are significant problems. The Emergency Law, which authorizes the Government to conduct preventive arrests, overrides Penal Code provisions against arbitrary arrest and detention, including the need to obtain warrants. Officials contend that the Emergency Law is applied only in narrowly defined cases, and in January the regional press reported that the Information Minister claimed that the authorities had frozen "martial law," and the Interior Ministry claimed that the Government had made no arbitrary arrests since April 2000. Nonetheless, in cases involving political or national security offenses, arrests often are carried out in secret, and suspects may be detained incommunicado for prolonged periods without charge or trial and are denied the right to a judicial determination regarding the pretrial detention. Some of these practices are prohibited by the state of emergency, but the authorities are not held to these strictures. Additionally, those suspected of political or national security offenses also may be arrested and prosecuted under ambiguous and broad articles of the Penal Code, and subsequently tried in either the criminal or security courts.
The Government detains relatives of detainees or of fugitives in order to obtain confessions or the fugitive's surrender. The Government also threatens families or friends of detainees, at times with the threat of expulsion, to ensure their silence, to force them to publicly disavow their relatives, or to force detainees into compliance.
CONSIDERATION
Has there been non-compliance by the applicant in the way described in the s.107 notice
The applicant has admitted that he provided incorrect information regarding his citizenship, identity, fears, and former countries of residence, in his subclass 200 visa application. He has submitted copies of official documents to confirm that the information he provided was false. These documents have been verified as genuine by the Department.
In light of the above the Tribunal finds that there was non-compliance by the applicant with the provisions in s.101, in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
The correct information
For reasons set out above the correct information is that the applicant was born in Syria and is a Syrian citizen whose name is [Given Name 2] [Family Name 2].
The content of the genuine document (if any)
This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on section 101, not on s.103 (relating to bogus documents).
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The applicant's initial claims for protection were based principally on his claimed Iraqi citizenship and fear of harm in Iraq. The Tribunal considers that the decision to grant him a humanitarian visa was based on this incorrect information he gave to the Department.
The circumstances in which the non-compliance occurred
The applicant stated that he provided an incorrect nationality and identity because he feared he would be returned to Syria. He stated that he believed his fear of harm in Syria would not be recognised at the time because there was a lack of understanding of the then situation in Syria.
The Tribunal does not consider this a wholly genuine or credible explanation for the provision of the incorrect information. The situation in Syria has been reported upon for many years, without interruption. Publications regarding the political and human rights situation have been readily available over the years. For example the US Department of State has published yearly reports on countries, including Syria, for many years, including prior to 2001, and so has Human Rights Watch and Amnesty international.
Further, the applicant was subjecting himself to an assessment by both the UNHCR and the Australian Immigration Department when he went through the process of applying for a visa to Australia. Both organisations have extensive global experience in the assessment of in-country situations and refugee and humanitarian claims.
The Tribunal considers it likely the applicant assumed an Iraqi identity because he was aware of the prioritising of grants for Iraqi refugees at the time, together with streamlined processing[9] that significantly reduced the time and scrutiny he would have otherwise experienced as a Syrian national applying for asylum.
[9] See e.g. UN High Commissioner for Refugees (UNHCR), UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-seekers, August 2007, available at: UN High Commissioner for Refugees (UNHCR), Guidelines Relating to the Eligibility of Iraqi Asylum-Seekers, 3 October 2005, available at: UN High Commissioner for Refugees (UNHCR), UNHCR Return Advisory Regarding Iraqi Asylum Seekers and Refugees, September 2004, available at: >
The Tribunal accepts that the applicant’s fears in Syria at the time may have motivated him to assume an identity with provided more certainty of accessing asylum in another country. However this in itself is not a justification for his actions. There was nothing preventing him from presenting his true identity and claims, and having them assessed by both the UNHCR and the Australian Immigration Department.
The present circumstances of the visa holder
The applicant has been in Australia since May 2009, a total of nine years. His wife and step-children are also here with him. His wife and step-children are [a particular] nationality. His children go to school in Australia.
He initially supported himself in employment in Australia. In 2011 he had a workplace accident. In 2016 and 2017 he had a motor vehicle accident. Due to the injures he received in these accidents he was unable to continue working.
He has submitted evidence of psychological and physical ill health which currently prevents him from obtaining employment in Australia.
The Tribunal accepts that it has been seventeen years since the applicant was in Syria and that he has now established his life in Australia.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
During his Departmental identity interview on 18 August 2016 the applicant first admitted to providing incorrect information regarding his nationality, past and identity. From then he cooperated with the Department in providing the correct information as well as official documents regarding his identity.
Any other instances of non-compliance by the visa holder known to the Minister.
There is no evidence before the Tribunal that there are any other instances of non-compliance by the applicant.
The time that has elapsed since the non-compliance
The relevant non-compliance took place in 2008 when the applicant made his application for a refugee visa in [Country 5]. Ten years have elapsed since that time. This is a considerable amount of time since the non-compliance.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal that the applicant has breached the law since the relevant non-compliance, apart from his admission of seemingly minor traffic offences such as being ‘double parked’.
Any contribution made by the holder to the community.
The applicant stated that he has donated money and clothes to his wife’s church and given donations to help children in Syria. The Tribunal accepts this evidence.
Other considerations
While the foregoing factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which requires delegates to also have regard to to matters such as whether the visa would have been granted if the correct information had been given; whether there are persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act; and whether the visa cancellation may result in Australia breaching its international obligations.
Would the visa have been granted upon the correct information?
The Tribunal considers that there is some likelihood that a refugee visa would have been granted to the applicant, if the correct information had been given. That is, if the applicant had declared he was a Syrian citizen who, because of his failure to present for military intelligence duty, was suspected by the Syrian Intelligence of being opposed to the regime, and who had a close relative imprisoned as a (wrongly) suspected member of the Muslim Brotherhood.
At the time, in and around 2001, the current Syrian President had recently assumed power following the death of his father, the former President.
According to the Human Rights Watch report on Syria, covering the year 1999:
Political life in Syria remained one-dimensional, dominated by the ruling Ba'th Party apparatus and a handful of smaller, pro-government political parties that comprised the National Progressive Front (NPF). … Peaceful opposition politics or human rights monitoring was not tolerated inside Syria, and punishment for either activity was severe. The country continued to lack a law under which any political party could apply for legal status, and membership in the Muslim Brotherhood was punishable by the death penalty, pursuant to Law No. 49 of 1980.[10]
[10] Human Rights Watch, Human Rights Watch World Report 2000 - Syria , 1 December 1999, available at: >
The following year’s Human Rights Watch report on Syria contained the following:
One chapter of Syrian history came to a close with the death on June 10 of President Hafez al-Asad, in power since 1970. The Ba'th Party then quickly orchestrated the political and military elevation of his thirty-four-year-old son, Bashar … Despite the presidential succession, Syrians continued to be denied civil and political rights. Freedom of expression, association, and assembly were strictly limited in law and practice; the local media and access to the Internet remained state-controlled; and the pervasive powers of the security forces under the country's long-standing emergency law, in force since 1963, were intact. There were no effective safeguards against arbitrary arrest and torture; civilian and military prisons, including the infamous Tadmor in the Palmyran desert, remained off-limits to independent observers; and the Kurdish minority continued to be denied basic rights, including the right to a nationality for tens of thousands. No one inside the country dared to advocate justice and accountability for current and former government officials responsible for gross human rights abuses, including the massacre of possibly as many as 1,100 unarmed prisoners at Tadmor in 1980, and the military assault on the city of Hama in 1982 in which thousands were killed.[11]
[11] Human Rights Watch, Human Rights Watch World Report 2001 - Syria , 1 December 2000, available at: >
The applicant’s claims regarding his reasons for leaving Syria in 2001 are substantive and may well have resulted in an entitlement for international protection at the time. The Tribunal notes that at the time there were successful refugee claims by Syrian nationals,[12] including matters with some similarity to the applicant’s situation in Syria, remitted by the Tribunal.[13]
Are there persons in Australia whose visa would, or may, be automatically cancelled under s.140 of the Act
[12] See for example the New Zealand Refugee Status Appeals Authority decision, Refugee Appeal No: 71938/2000, 31 May 2000, which contains some analogous features with the applicant’s initial situation in Syria.
[13] See for example Refugee Review Tribunal File No.V98/08594, decision dated 30 August 2000; Refugee Review Tribunal File No.V96/05515, decision dated 8 May 1998; Refugee Review Tribunal File No.V99/09952, decision dated 27 May 1999; Refugee Review Tribunal File No. N00/34771, decision dated 11 October 2000; etc.
The applicant’s wife’s partner visa has been cancelled as a result of the cancellation of the applicant’s visa. If the applicant’s visa remains cancelled so will his wife’s visa, under s.140 of the Act.
Are there children in Australia whose interests could be affected by the cancellation.
There are children in Australia whose interests could be affected by the cancellation.
The applicant’s step-children are currently on bridging visas awaiting the review of the decision not to grant them a Child visa.
If the applicant’s visa remains cancelled, and therefore his wife’s visa remains cancelled, the children will not meet the criteria for a grant of a Child visa.
One of the applicant’s step-daughters accompanied the applicant to his Tribunal hearing. It was apparent that they have a close familial relationship. If the applicant’s visa remains cancelled it is foreseeable that the family may be separated.
The degree of hardship that may be caused to the visa holder and any family members.
If the applicant’s visa remains cancelled he and his family will lose their entitlement to the benefits of permanent residence in Australia. According to the financial information they have presented their situation is already impecunious. The Tribunal accepts that the loss of entitlements will cause severe financial hardship to the family and adversely affect their ability to maintain their health and welfare.
The Tribunal notes that the applicant has had a relatively stable life in Australia until recent years. He retains the right to apply for a Protection visa however such a process exposes him and his family to an uncertain and vulnerable existence with an unknown future outcome. The Tribunal notes the evidence regarding the applicant’s psychological state and accepts there is a real possibility his mental state will suffer significant deterioration if his visa remains cancelled.
Non-refoulement obligations

Australia’s non-refoulement obligations require it to not return the applicant to a country in which he has a well-founded fear of persecution for a reason set out in the Refugees Convention. These reasons are largely duplicated in s.5J of the Migration Act.
The extent to which the Tribunal must go into claims that Australia has protection obligations to a person when considering the discretion to cancel the person’s visa, will vary depending upon the circumstances of the applicant. In COT15 v MIBP (No.1) the Full Federal Court upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for a protection visa. The Full Court noted that the Act contemplates that those obligations will be considered in the context of a protection visa application.
In MIBP v Le the Full Federal Court, agreeing with COT15 v MIBP (No. 1), held that an assessment of Australia's non-refoulement obligations is not a mandatory consideration where it is open for the visa holder to apply in Australia for a protection visa, even if the visa holder had previously been recognised as a refugee for the purposes of the Refugees Convention. However, it may be necessary to consider any harm claimed by an applicant which may not engage Australia's international non-refoulement obligations.
The applicant has not been refused a protection visa and is not prevented from applying for a prescribed class of visa whilst he is in Australia. There is no information indicating that he would not be able to apply for a protection visa due to any legislative bars. Therefore the cancellation of the applicant’s visa would not automatically lead to his removal in breach of Australia's international obligations.
However there is a substantial volume of evidence that Australia’s protection obligations are clearly engaged for a Syrian national with the applicant’s profile. This evidence includes the information, advices, and opinions from DFAT and the Department of Home Affairs. The Tribunal considers this information highly relevant to the applicant’s review application. In the interests of efficiency, and of avoiding unnecessary delay, expense, and uncertainty, the Tribunal therefore undertakes a consideration of the applicant’s protection claims.
The applicant is [a particularly aged] Syrian national. He is a Sunni Muslim from [Province 2]. Given the bombardment and fighting in his family’s home area it is very possible his family home has been destroyed. He is married to a Christian woman and has [Christian] step-children. He has some close relatives who have been imprisoned in the past by the Syrian regime. He did not present for his Military Intelligence employment. He left the country illegally. He has been outside of Syria for seventeen years.
According the country information set out above there is a very real chance that someone with the applicant’s profile would face serious harm in Syria.
As set out in the country information there is a likelihood the authorities would have a record of the applicant’s failure to present for his Military Intelligence duties in or around 2001. His situation is therefore akin to being considered a deserter. He is also Sunni, originally from an area under ISIS control. As someone who has also been outside Syria for a long time, with relatives imprisoned as anti-government or deserters, it is very likely the government authorities would suspect the applicant of being anti-government and arrest him in Syria. The country information shows his arrest would render him vulnerable to torture, imprisonment and other abuses from the regime.
As a Sunni Muslim who is not particularly devout, with a Christian wife and [Christian] step-children he has not made convert to Islam, the applicant would also be at real risk of serious harm from anti-government Islamist extremist groups in Syria.
Accordingly the Tribunal is satisfied that there is a real chance of serious harm to the applicant in Syria because of his political opinion and religion. The Tribunal is satisfied that the threat of serious harm to the applicant exists throughout Syria and that there is no state protection for him.
There is no evidence or indication before the Tribunal that the applicant has a right to enter and reside in any other county. Therefore the applicant is not excluded from Australia’s protection obligations by s.36(3) of the Act.
On the basis of the above reasoning the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2) of the Act. Therefore to return the Applicant to Syria, Australia would be in breach of its non-refoulement obligations.
Conclusion
The applicant gave false information in his subclass 200 visa application regarding his nationality and protection claims. The decision to grant the applicant a protection visa was based on the incorrect information which he provided.
Counterbalancing the seriousness of the applicant’s non-compliance, the Tribunal accepts that a very significant period of time, over ten years, has elapsed since the non-compliance occurred. The Tribunal accepts that there are no other instances of non-compliance by the applicant, known to the Minister and that he has is not known to have breached the law since the relevant non-compliance apart from apparently minor traffic offences.
The Tribunal accepts that it is the best interests of the applicant’s [step]-children that his visa not be cancelled, so that the family can stay together and continue to establish their lives in Australia. The Tribunal also accepts that the applicant’s wife would be able to resume her life in Australia if the effects of the cancellation of her husband’s visa are undone. The Tribunal therefore gives some limited weight to the interests of the family to be able to remain together in Australia.
The Tribunal gives significant weight to its finding that there is a likelihood the applicant was entitled to international protection at the time the non-compliance occurred, and that he would therefore have been granted refugee recognition if he had provided his true information.
The Tribunal also places great weight on the current protection obligations due to the applicant, as a Syrian national with a profile which would put him at risk of serious harm from the regime and religious extremists in Syria.
In weighing the circumstances set out above, the Tribunal considers that the factors in support of not cancelling the applicant’s visa, outweigh the fact that his visa was granted on the basis of the incorrect information he gave the Department.
The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 200 (Refugee) visa.
Melissa McAdam
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)      purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)      giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)      visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2018] AATA 2909

5 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Natural Justice

Remedies